Much is being made about a speech Sen. Sheldon Whitehouse gave today, in which Whitehouse detailed some elements of his perusal of previously classified DOJ Office of Legal Counsel Memos. There is a belief that Whitehouse's findings are the "smoking gun" that proves the Bush Administration thinks it is above the law.
The key segment of the speech occurs when Whitehouse lays out some of the specific findings of the OLC memos that he looked at:
1. An executive order cannot limit a President. There is no constitutional requirement for a President to issue a new executive order whenever he wishes to
depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it.
2. The President, exercising his constitutional authority under Article II, can determine whether an action is a lawful exercise of the President's authority under Article II.
3. The Department of Justice is bound by the President's legal determinations.
Now, I've been extremely critical of the Bushies when it comes to their view of Presidential power, to the point where I've explicitly called for impeachment for the primary purpose of restoring the constitutional balance of powers.
However, I am simply not alarmed by the OLC findings described by Whitehouse. This isn't to say that the findings absolve the Bush administration- far from it, in fact. But in and of themselves, these findings are really uncontroversial as a matter of Constitutional law; the problem, as I will point out later, is that the conjunction of these uncontroversial findings with the administrative/separation of powers law beginning roughly in the New Deal-era has resulted in a massive expansion of executive power.
1. As a practical matter, executive orders have little or no constitutional weight. They are, by definition, a President's instructions for the rest of the executive branch. Simply put they are no more and no less than a boss giving orders to his subordinates. As long as the President has constitutional/statutory authority for the action contained within the executive order or the action implied by ignoring a pre-existing executive order, the President can do whatever he wishes with respect to the executive order. While the courts have intervened twice on the issue of Presidential executive orders, the interventions have occured where the court found the President was ordering something that he had no authority to order. Put another way- an executive order is in and of itself Constitutionally insignificant; it is the implementation of the executive order that carries Constitutional significance.
2. Of course the President "can" determine whether an action is a lawful exercise of his Article II power. That is quite literally what the President does whenever the President acts or declines to act in any way, shape, or form. Otherwise, the President would need to go to the courts or Congress to ask for permission to perform any and every Presidential action (in the courts, such a request would likely be "nonjusticiable," in addition to being an absurd burden on the courts). The problem arises when the President makes such a determination in direct contravention of a court ruling or a duly-enacted law. But in principle, there is nothing inherently suspect about the statement that the President can determine whether an action is a lawful exercise of his power.
3. The statement that the DOJ is bound by the President's legal determinations seems a bit more troubling. To the extent Whitehouse is saying that executive agencies must disregard duly enacted statutes and court decisions if the President offers a different legal opinion, he is right to raise issues with this finding. But I don't think that's what Sen. Whitehouse's statement means. Instead, the statement simply seems to mean that, where there is a dispute of interpretation between DOJ and the President, the President's interpretation controls. This is an uncontroversial statement since the DOJ is exercising authority that is theoretically delegated by the President.
So the President is likely on firm Constitutional ground when it comes to these findings. The problem, however, is when the President uses these relatively obvious findings as justification for disregarding the actual rule of law. In other words, the problem isn't that Bush is ignoring previous Executive Orders; the problem is that he is simply deciding the previous Executive Orders served no purpose and that he inherently knows better, a priori, than the effort and research that went in to the original order. Similarly, the problem isn't that the President is asserting a right to determine whether an action is a lawful exercise of constitutional power; the problem occurs when the President completely disregards other elements of the Constitution and the rules laid down by co-equal branches of government. Finally, the problem isn't that DOJ must abide by the President's legal determinations; the problem is that the President's legal determinations ignore the legal determinations of the courts and the plain text of the Constitution.
There is, of course, another problem in all of this, which has nothing to do with Constitutional powers: the hubris underlying the practice of regularly overruling and undermining the findings of DOJ career professionals.
I should also add that the fact that these (IMHO) self-evident propositions were the subject of legal memoranda suggest that the President was seeking to use them as justification for an end run around the Constitution. Indeed, thanks largely to FDR, there is now legally a very fine line between executive and legislative authority, such that it has become relatively easy for the President to argue that he is not acting in contravention of statutory authority. In some ways, I think the New Deal-era changes to separation of powers law have in fact created justification for Bush to make good faith arguments for much of his power-hungry overreaching. In other words: Progressives who wanted a big, active government got exactly what they asked for.
Finally, I must point out that there is a simple solution to all of these problems available under the Constitution. This solution would make a clear statement as to the limits of Executive Power that would not require a change in New Deal-era legal precedent. That solution is, of course, impeachment.
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