Saturday, July 1

The Most Important Court Decision this year

Dear Dahlia,

You are right that two years ago I did say that the court's 2004 enemy combatant cases were historic. And they were. But not like today's. Hamdan is simply the most important decision on presidential power and the rule of law ever. Ever.

The court has rejected the central constitutional claim of this presidency: that no president is bound to comply with laws passed by the United States Congress if those laws limit any exercise of an astonishingly broad category they call "inherent Presidential power."

I will expand upon this later tonight. But first, I must deal with your unwarranted fear that President Bush's administration might simply refuse to comply with the court's determinations, either openly or covertly. First of all, no one in this administration has ever suggested that the president would ever decline to obey Supreme Court decisions. But there is an even more practical restraint on noncompliance. The law officers of the government will not let that happen.

Yes, I know, actions have been taken in secret—prisons, torture, wiretapping, God knows what else. But many? most? of those actions have—to the extent of our knowledge—been approved by legal opinions from the Department of Justice and the White House counsel. Those legal opinions have seemed to very many lawyers to be fundamentally wrong in their assertions of sweeping unilateral presidential power to act in defiance of clearly valid laws. But, right or wrong, those legal opinions, signed and sealed on official government stationery, were a reality that gave substantial legal protection to government officers and agents who acted in compliance with what the lawyers found to be valid presidential directives.
No more. A lot of those legal opinions are inoperative as of 10 a.m. this morning. And without the cover of the now-discredited theory of sweeping unilateral executive power, the criminal law of the United States again controls.

Today the court holds that common Article 3 of the Geneva Conventions applies to the conflict against al-Qaida. As Justice Kennedy expressly notes in his (controlling) concurring opinion, Section 2441 of the U.S. Criminal Code defines a "war crime" as including any conduct "which constitutes a violation of common Article 3 of the international conventions signed at Geneva." And the statute makes any "war crime"—when committed by any member of the U.S. Armed Forces, or against any member of the U.S. Armed Forces, or against a U.S. national—punishable by life imprisonment, or in certain cases, by death. Now that the fig leaf of untenable legal opinions has been stripped away, there will be great resistance by covered officials to complying with directives that may violate such a serious federal criminal statute.

In order to understand the larger significance of today's Hamdan decision it is important to be clear about exactly how this presidency departed from fundamental legal principles. But that's a complicated but extraordinarily important point, so I'll come back to it in a new posting shortly.

Cheer up, Dahlia. This really is a wonderful day for the rule of law.

Yours, Walter

Dear Dahlia,

I want to finish the thought I started earlier. Because in order to understand the larger significance of today's decision, it is important to be clear about exactly how this presidency departed from fundamental legal principles. The problem is not the president's assertion that he can ignore laws he believes to be unconstitutional. The problem is what laws he believes to be unconstitutional.

For the proposition that the president has the authority to decline to abide by statutes he views as unconstitutional, the administration has relied principally on an opinion I authored as head of the Office of Legal Counsel in 1994. And rightly so.

That opinion is based upon long-standing and consistent executive practice. Moreover, the most relevant U.S. Supreme Court decision, Myers v. United States, 272 US 52 (1926), by clear implication considers it appropriate for a president to decline to execute unconstitutional statutes. And as President Carter's Attorney General Ben Civiletti wrote in an 1980 opinion, the president's constitutional duty to execute the laws "does not require him to execute unconstitutional statutes; nor does it require him to execute them provisionally, against the day that they are declared unconstitutional by the courts."

This view is based upon the principle that the president's ultimate obligation is to the Constitution, and if a statute contravenes the Constitution, the president has the authority to decline to enforce it. This applies to laws that unconstitutionally impinge upon the president's own power. It is also unremarkable for a president to announce his view that a provision is unconstitutional in a statement issued when he signs the law.

The problem has been what those presidential signing statements say—even worse, what the legal opinions intended to be secret assert. They claim that laws whose validity has never been seriously questioned are unconstitutional based on extravagant and untenable theories of presidential power.

The fundamental, profound category error made by the administration has been to confuse two utterly different meanings of the term "inherent presidential power." One meaning would refer to what the president has authority to do on his own in the fields of national security and armed conflict when Congress has not acted. That should be a very broad area. The term "inherent presidential power" could also be taken, however, to refer to matters so deeply at the core of presidential authority that any act of Congress that regulated or limited the exercise of that power would be unconstitutional—even if Congress was acting under legislative powers clearly conferred by the Constitution. That should be an exceedingly small set of matters.

This administration has taken the astounding position that if the president has "inherent authority" to do and act whenever Congress is silent, then it follows that any act of Congress that regulates such an authority is an invalid impingement on his "inherent power." This conflation of what a president can do if no law prohibits his action and what he can when the law forbids it is a truly insidious legal doctrine.

The court made short work of it today. RIP "inherent presidential authority" to violate valid laws. Justice Kennedy makes this point more simply than I have. After noting that the military commission order "exceeds limits that certain statutes have placed on the President's authority to convene military courts," he asserts:

This is not a case, then, where the Executive can assert some unilateral authority to fill a void left by congressional inaction. It is a case where Congress, in the proper exercise of its powers as an independent branch of government … has set limits on the President's authority.

This seemingly simply proposition has huge consequences. There is no doubt that the president would have "inherent authority" as commander in chief to set up military courts. But that, the court asserts, does not preclude Congress from acting. This same principle must apply to torture, wiretapping, and countless other actions that fall within my (rather expansive) view of presidential authority. All those actions are now clearly subject to the duly enacted laws. The central legal proposition underlying numerous assertions of unprecedented power by this president is no longer tenable.

This decision need not hinder the war on terror. In a very thoughtful early piece, Jack Balkin calls today's decision "democracy forcing." The court does not itself place any constitutional limits on what the president can do to combat al-Qaida. It (merely) (but profoundly) requires him to act in conformity with constitutional government by asking the people's representatives to enact legislation that he believes—and can convince the country—to be necessary.

Today's decision has been criticized by conservatives on the court and by some off the court. But just as this is not a victory for terrorists, neither is it a defeat for conservatives, as many will come to realize. Placing the presidency back under the law will look quite different to critics when there is a president less to their liking in the White House.

Yours, Walter

Dear Walter:

Your post from last night should be required reading for all the wingers on the right who are shrilling today about "The Supreme Court and how it's destroying America." I wonder whether people truly understand how dramatically this president's reading of executive power upended the legal status quo. Still, for those who will say that any time a court acts, it is being "activist," I guess today will bring a fresh stream of vitriol from the right about "judicial overreaching, tendentious statutory construction and implausible renderings of international law."

There are also important arguments happening out there today—about the wisdom of a Supreme Court affording the broad protections of the Geneva Conventions to a non-uniformed, non-nation-state enemy—one that neither acknowledges nor respects these same boundaries on warfare. And arguments about whether we can possibly fight terrorism through trials. And our disagreement of yesterday, about whether and how the Hamdan decision will fundamentally change how this administration conducts the war on terror, is also playing out in newspapers and blogs around the country.

The AP reports this morning that there is a lot of skepticism about whether Hamdan will mean much more than no trials for 12 men. Mark Graber at Balkinization lays out the ways Hamdan may play out going forward, and he is hardly euphoric. The Los Angeles Times notes that "the White House signaled that it had no intention of backing down. Meeting the Supreme Court's objections required little more than having Congress put its stamp of approval on a system of military tribunals."

The New York Times is in your camp, however, calling Hamdan a "historic event, a defining moment in the ever-shifting balance of power," adding that "the decision was such a sweeping and categorical defeat for the administration that it left human rights lawyers who have pressed this and other cases on behalf of Guantanamo detainees almost speechless with surprise and delight."

I think we have to wait until next year's Breakfast Table (or perhaps just the November elections) to see if the legal landscape is fundamentally altered by Hamdan.

You say this decision puts the lie to the Bush administration's chilling vision, once voiced by Richard Nixon, who said that "If the President does it, it's not illegal." I'd probably give you Yale Law School Dean Harold Koh, who likes to quote Henry Kissinger's line: "The illegal we do immediately. The unconstitutional takes a little longer."

You say government officials will watch where they step now, knowing that they are answerable to the law and not just the president. I say, have a look at Jane Mayer's latest. Because, at least according to Colin Powell, David Addington, Vice President Cheney's chief of staff and primary legal adviser, "doesn't care about the Constitution." And a lot of Bush administration lawyers—like James Comey and Jack Goldsmith—who do care about the law just don't work there anymore.

That doesn't mean the administration won't make any concessions. Bush appears to have read Justice Breyer's concurrence and concluded that working with Congress is now a super idea. Since the current GOP-dominated Congress thinks "Do you want fries with your war, Mr. President" suffices for debate on matters of war, it's up to voters to decide, come November, whether warrantless NSA surveillance and data mining, among other executive reaches, should be a part of the war on terror.

Before we sign off, do you have any quick thoughts about the new ascendancy of Anthony Kennedy? Remember that slightly strange piece in the New York Times after oral argument in Hamdan, in which Adam Cohen tried to make the best of the conventional wisdom that Kennedy was far too easily influenced by his colleagues and clerks? Wrote Cohen, "there is something refreshing about a justice who genuinely seems to have an open mind."
Talk about damning with faint praise.

That piece concluded, noting Kennedy's role as the decisive swing vote, with the tepid hope that, "rather than pleasing any ideology or interest group, the court will be guided by one man's sometimes idiosyncratic, but evidently quite sincere, attempt to reach the right result."

For those of us who truly feel like the decision in Hamdan allows us all to breathe again, is there something to be said for Kennedy's amazing performance beyond merely "whew, he got this one right?"

Walter, doing this Breakfast Table with you has been, yet again, the very best part of my job. Thanks so much for your incredible insight and deep knowledge.


Dear Dahlia (for the last time this year):

You are right that opinions are mixed on how significant yesterday's Hamdan decision is. Views seem to range from a ho-hum from the usually very astute Richard Samp of the Washington Legal Foundation (he'd "be surprised if any of the holdings … end up having large practical significance") all the way to … well, I guess all the way to me. My flash assessment that it was "the most important decision on presidential power ever" seems to have come in as yesterday's high bid. Having had a night to sleep on Hamdan, listen to others reactions, and read the morning papers, I guess I should reconsider the "importance" question.

Well, one might ask, what presidential power decision is there that exceeds Hamdan in importance? Quite possibly U.S. v. Nixon, the decision that required the president to hand over tape recordings that turned him prematurely into an ex-president. Another candidate is, of course, Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952), the landmark case in which the court ordered President Truman to return the steel mills he had seized to avert a strike during the Korean War; Youngstown set the standard for assessing claims of unilateral presidential power. Each of those cases, however, was still something of a "one-off." Nixon knew he was breaking the law and hoped not to get caught; Truman thought the steel strike was a special case and did not otherwise act as if he could disregard Congress.

In Hamdan however, the court confronted and rejected a deep theory of the Constitution that had been developed by the incumbent administration and was invoked to justify perhaps hundreds of executive decisions (so many of which seem to be secret we will never even know how many) that at least appeared to violate valid acts of Congress. The rejection of that imperial claim is what is important about this case.

It's not about the military commissions. I think what explains differing assessments of the importance of Hamdan is that different people are all viewing the decision from different levels of generality. And the farther back you stand, the more significant it appears. Up close, it's a case about Mr. Hamdan, or maybe about Hamdan and a dozen others. Whether it makes much difference to them is hard to say. If you look at it as a case about the validity of shortcut military commissions, it looks a bit more significant, but Congress will provide some kind of fix for those commissions.

But that is not what Hamdan is really about. As Marty Lederman of Georgetown Law Center said to me last night, future historians are about as likely to think of Hamdan as a "military commissions case" as they are to think of Youngstown Sheet & Steel v. Sawyer as a decision about "steel mill law." Hamdan is about the OLC torture memo; and it's about whether the president can refuse to comply with the McCain Amendment. It's about all those laws the president says, as he signs them, that he will not commit to obey, if in his view foreign relations or deliberative processes of the executive or other matters may be affected. And, by the way, he won't even commit to tell Congress he is not obeying the law. That is what it's about.

It's been really frustrating to me that so many people—including critics of the president—fail to understand what's at the essence of the fundamental constitutional claim of this administration. Even such an incisive critic of presidential overreaching as Senate Judiciary Chair Arlen Specter puts the issue in a confusing way. At Hearings on Signing Statements at the beginning of Hamdan week he made the concession that, "There is no doubt that the president's constitutional power under Article II cannot be limited by statute."

But almost all—not all, but almost all—of what presidents do in the exercise of their Article II powers certainly can be limited by statute. Certainly, no act of Congress is necessary to enable the president as commander in chief to discipline and punish members of the armed forces. That is surely a "constitutional power under Article II," but it just as surely can be "limited by statute." And it has been for over 200 years with enactments such as the Uniform Code of Military Justice—laws never seriously thought to be unconstitutional.

There are actually only a very few core executive functions that Congress may not touch. But where—as in all the matters we have been talking about—Congress has its own legislative authority, the president has to show how those core functions of his would be jeopardized by complying with the law. And as the court noted yesterday, no such showing was even seriously attempted in Hamdan.

The White House's response to Hamdan was to shrug that it "requires little more than having Congress put its stamp of approval" on the some modified military trial plans or maybe on the existing plan. But that is the whole point of this ruling in Hamdan—to move the president from violating the law to complying with a new law to be enacted by Congress.

A short while back, there seemed to be no stopping the sweeping and untenable assertions of a presidential power to disregard laws that seemed entirely constitutional to me. I had thought we had effectively lost the principle that the president—indeed, the whole executive branch of government—was really required to comply with valid federal laws constitutionally enacted by Congress. Now I think that principle has been not merely affirmed but also re-enshrined. How many cases can be more important than that?

I have really enjoyed this opportunity—although it really is nerve-wracking to write so fast on complicated matters. I don't know how you do it all the time. I have been one of your abject cult followers since you started writing for Slate and changed the way we all thought the court could be covered. You make us laugh while we learn from your keen insights. I now know how Desi Arnaz must have felt while he watched Lucy work her magic.