With Congress supine and feckless, law professors committed to the rule of law have taken to arguing that executive-branch lawyers can be trusted to ensure that the president does not break the law. That’s the argument, for example, of Trevor Morrison, the dean of NYU Law School; Jack Goldsmith also made this argument, more or less, in his book, Power and Constraint.

But what if a “deeply-sourced” journalist named Charlie Savage writes a 700-page book that shows that executive branch lawyers, in almost all cases, failed to stop the president from breaking the law? Then you double down:

Here’s Jack:

What never shows up in books like Power Wars, and what the public never sees, are the scores of times that lawyers preempt operations and policies – in a phone call, conversation, or preliminary meeting – that are clearly out of bounds.  Nor can we ever see the stream of dreamed-up and potentially useful operations and policies that never make it to a conversation because the policymaker knows that the answer will be “no” and thus never asks.  In these and related ways, law hems in the President’s decisonmaking by limiting the policy options that reach his desk.  A complete assessment of the effect of law on senior national security decisionmaking would need to compare the questionable approvals and fudges we see against the much-harder-to-perceive instances that law constrains by limiting possible courses of action.  Reporters cannot easily get at this latter type of information.

And here’s Oona Hathaway (also a former executive-branch lawyer):

Savage must get his information from sources, and those sources often have an agenda or a limited view of the issue at hand. (They are also, it bears mentioning again, often breaking their legal and ethical obligations not to disclose classified or confidential information.) That means that the glimpse he is offered is necessarily a skewed one. Add to this the fact that those who talk to Savage are, it seems, largely those at or near the top of the totem pole. Officials who labor day-in-and-day-out on the issues Savage covers — and who have an immensely important role in shaping options and strategies — receive almost no mention. It’s hard to fault Savage for this — he can’t possibly speak to everyone, and he clearly spoke to a huge number of insiders. But it does mean that he has a partial view of how the lawyering process works that doesn’t necessarily reflect the gritty day-to-day reality inside the agencies, where options and rationales are developed by lawyers, many of whom have been at the job for decades.

And, of course, Harold Koh, most pithily (albeit in Savage’s paraphrase), who says it is

easier to take purist stances from the faculty lounge than from a position of responsibility.

All of this bears only one interpretation. For the public and commentators who wonder whether the president is constrained by law, the answer is: “trust us,” the executive-branch lawyers.

That’s Charlie Savage paraphrasing Harold Koh in Power Wars. I think this should be carved on the facade of Yale Law School. You can read a glass-half-full review by Jack Goldsmith, and a glass-half-empty review by me. (Or is it the other way around?)

From the NYT.

No, I say, in Slate, at least not in the sense that people like Bruce Ackerman or Matthew Yglesias mean. This bold claim puts me in a minority of, maybe, two people.

Since we published The Executive Unbound: After the Madisonian Republic in 2011,

• the President has extended the 2004 AUMF to include ISIS and engaged in a “Forever War” without congressional participation;
• taken military action in Libya, on grounds widely condemned as a transparent circumvention or violation of the War Powers Resolution, while ignoring the contrary views of the Office of Legal Counsel;
• moved aggressively to regulate greenhouse gas emissions, through the EPA, under the authority of a statute enacted in 1970 that says little of relevance, after Congress refused to enact a regulatory scheme for climate change;
• unilaterally announced sweeping immigration enforcement policies that effectively legalized millions of aliens, and that closely tracked the terms of a bill that Congress refused to enact;
• unilaterally delayed rulemaking under the Affordable Care Act, despite unambiguous statutory deadlines, and funded implementation of the Act by diverting appropriations expressly devoted to other purposes;
• missed dozens of statutory deadlines under Dodd-Frank;
• refused to defend the constitutionality of federal statutes, and encouraged their invalidation by the courts;
• used ‘waiver’ authority to dilute or undermine the work participation requirement of the Temporary Assistance for Needy Families program;
• used ‘waiver’ authority in No Child Left Behind, which was included in the statute to allow state experimentation, to force states to adopt new education standards not embodied in the law;
• justified recess appointments by a constitutional theory – upheld in principle although not as to particulars by the Supreme Court – that weakens the control of the Senate over the allocation of high offices in government;
• defied an express statutory command, and by so doing obtained, for the first time in the Nation’s history, a Supreme Court decision recognizing exclusive and inherent presidential power to recognize foreign governments;
• refused to enforce federal drug laws against marijuana users in states that legalized marijuana.

“Sovereign is he who decides on the exception.”

— Eric Posner & Adrian Vermeule