Harvard Law School’s dynamic AdLaw duo (Cass R. Sunstein and Adrian Vermeule) has struck again. In The New Coke: On the Plural Aims of Administrative Law the authors take aim at the insurgent fundamental assault on the legitimacy of the administrative state, under the banner of “the separation of powers.” The challenge is playing a growing role in separate [Supreme Court] opinions, and on occasion, it finds its way into majority opinions as well. Justice Clarence Thomas is the principal advocate, but he has been joined, on prominent occasions, by Justice Antonin Scalia and sometimes by Justices Samuel Alito and Chief…
Empowered by the elections of 2014, Republicans face the question common to all who have had revolutionary changes imposed on them: Are we to accept what was done to us so as not to further revolutionize our environment, hoping our restraint will lead our adversaries to restrain themselves whenever they return to power?
Senator Harry Reid (D-Nev.), who, as Minority Leader pioneered the filibuster of appellate judicial nominees—vide, Miguel Estrada—and then as Majority Leader abolished the rule that allows it, had this to say in the wake of the midterms: “This is not get-even time.” Just as understandably, Senator Orrin Hatch (R-Utah) argues for teaching “these blunder-heads that they made a big mistake” by giving them “a taste of their own medicine.”
Presidential power scholar Stephen Knott discusses in this latest edition of Liberty Law Talk his book Rush to Judgment: George W. Bush, the War on Terror, and His Critics, recently released in paperback form by University Press of Kansas. Knott has a point in this book. He argues convincingly that the vituperative critics of George W. Bush’s use of executive power, in many instances, were willfully ignorant of the historical use of these powers. Past presidents, ranging from George Washington, Thomas Jefferson, James Madison, Abraham Lincoln and certain presidents in the twentieth century, defended and exercised powers similar to those…
We will soon know if the U.S. Senate changes hands, but I’m not one of those waiting with bated breath. I had lunch with a prominent conservative columnist a while back. “It’ll be different in November,” he exulted. “We’ll take the Senate!” “And then what will happen?” I asked. “We’ll pass legislation and send it up to Obama,” he answered. “And then what will happen?” I asked.
My friend thought that the most arrogant and narcissistic President the country has ever seen would blanche before Mitch McConnell. Count me a skeptic. We have gridlock this year, and we’ll very likely have gridlock in 2015, whatever happens in November.
Oh, I know there’s the Senate’s advise and consent role, when it comes to judicial appointments. Conservatives like to pretend that that’s important. All it means is that, with divided government, we won’t see Justice Eric Holder. So we’ll see Justice Elena Kagan. Tell me what’s the difference.
The standard narrative used to justify the existence of the administrative state and thus legitimate its powers is that America in the late 19th and early 20th centuries entered into a realm of industrialization, corporate power and concentration, density and urbanization, among other causes, that entailed the need for expert rule in executive agencies. Necessity of government action required courts and rule-making agencies that could adjust the social order to rapidly arising needs not anticipated in the 'horse and buggy' Constitution. However, what if there really is nothing new under the sun about administrative power? Instead, what if its call…
In my first two posts on the presidential prerogative, I discussed the nature of the prerogative and then argued that the text made the prerogative illegal. In this third post, I want to discuss what powers the Constitution does confer on the President to deal with extraordinary situations.
Imagine that one is in the situation that Abraham Lincoln faced in the early days of the Civil War, when Lincoln felt the need to suspend the writ of habeas corpus while Congress was not in session, even though the Constitution pretty clearly allows only the Congress to suspend the writ. In this situation, there are three potential liabilities that the President has to worry about. First, the President will be subject to impeachment for acting unconstitutionally. Second, the officer who the President orders to arrest and/or imprison the individual may be subject to a civil suit for damages. Third, the President himself might be subject to a civil suit for damages. (It is true that in modern times caselaw has provided qualified immunity for officials and absolute immunity for the President but these have been invented by the courts and therefore are legally problematic.)
In the case of impeachment, the President can have the person arrested and imprisoned, and then simply take the risk that the Congress will impeach him. The President knows that he has done something illegal, but he argues that it was necessary for the good of the nation. There is no immunity for the President here, but if he makes a convincing case, the Congress may choose not to impeach him. He will have violated the law, but there will be no action taken by Congress to discipline him. In this way, the Constitution allows him to take extraordinary actions, but forces him to bear the risk that his action will be seen as illegitimate and will be sanctioned. The Constitution therefore gives the President a strong incentive to make sure he is taking an action that will be seen as legitimate.