For more than a generation, the Watergate-tapes case stood for the principle that the Supreme Court has the last word in defining the reach of presidential power: Richard Nixon claimed that his power was unlimited, especially when it came to national security, and that his position gave him the privilege of refusing to turn over tape recordings made in the Oval Office. The Burger Court declared that, while the president of the United States is due “a high degree of respect,” he isn’t “above the law,” and it unanimously ruled against him. Sixteen days later Nixon resigned in disgrace. The ruling illustrated a crucial purpose for the separation of powers, and for the checks and balances it was devised to provide.
The sweeping authority that Nixon claimed in theory, George W. Bush has acted on again and again. The preemptive attack on Iraq was the most visible of his presidency’s actions resting on that claim— actions we can’t fully count because so many have been undertaken in secret. This pattern has made the issues of presidential power and the separation of powers as important today as they have ever been. From 2003 through 2006, when the Republicans occupied the White House, controlled both houses of Congress, and held sway on the Supreme Court— and, really, since the administration came to power in 2001— there was little checking and balancing. Instead of ensuring that the executive branch was properly enforcing the law— holding meaningful hearings about Abu Ghraib, for example, or about the detention of enemy combatants— Congress often acted like an extension of the White House.
This year’s resurgence of congressional oversight hearings after the Democrats gained control of both houses, especially those focusing on the Iraq war, the war on terrorism, and the upheaval at the Justice Department, has contributed to a loose consensus that our system is righting itself and operating as it’s supposed to. The 2006 Supreme Court ruling in Hamdan v. Rumsfeld, in which a five-to-three majority of justices rejected the plan of the Bush administration to try Guantánamo detainees before military commissions, reinforced that consensus. The majority opinion of Justice John Paul Stevens in Hamdan— “The Executive is bound to comply with the Rule of Law that prevails in this jurisdiction,” he asserted—was said to “demolish” the administration’s arguments that the American crisis beginning on 9/11 requires the government to put aside ordinary legal rules.
The problem with that view is its emphasis on the design of government rather than on how the machinery actually works. By general agreement for the past half century at least, the Supreme Court has been granted the last word on what the Constitution means, including its meaning with reference to the president’s power. But in reality, especially in “the domain of foreign affairs,” as the legal scholar Cass Sunstein explained, “the central legal issues rarely come before the Court at all. The law is effectively settled within the executive branch, or by informal agreements between the president and Congress.”
The so-called torture memo of August 2002, the best-known legal opinion of the Bush administration, was noteworthy because it justified the torture of prisoners despite a statute outlawing the practice, but even more so because it made a far-reaching change to a little-known body of law that controls the president’s obligations as well as his powers. Under the Judiciary Act of 1789, the attorney general is authorized to render legal opinions when asked for them by the president. Since 1950, this body of law has been made by the Justice Department’s Office of Legal Counsel (OLC). Beginning in 1977 its opinions have generally been published so that past findings can serve as precedents for future ones and so that the whole executive branch can have easy access to rulings by which it is bound.
For a generation, a fundamental debate carried on between Republican and Democratic OLCs concerns whether the separation of powers means that each branch has exclusive control of matters in its domain or whether the Constitution (as the legal scholars David Barron and Martin Lederman put it in a forthcoming article in the Harvard Law Review) generally gives Congress and the president “overlapping, or blended, powers, all of which are quite extensive, but none of which obviously serves as an absolute trump over the other.” In 1996, during the Clinton administration, the OLC issued a legal opinion embracing the latter judgment, which has been supported by the modern Supreme Court, most prominently in the opinion by Justice Robert Jackson in the landmark 1952 Steel Seizure case. “While the Constitution diffuses power the better to secure liberty,” he wrote, “it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.”
On the other hand, in the Reagan administration and more notably in the George H. W. Bush administration, the OLC issued without fanfare opinions endorsing the view that each branch has exclusive control. They built on arguments about the president’s inherent authority in foreign affairs that were articulated in an influential 1936 Supreme Court opinion by Justice George Sutherland in the case of United States v. Curtiss-Wright Export Corp. On grounds that Congress had left what it should have decided to the executive’s “unfettered discretion,” the company challenged an embargo proclaimed by the president against arms shipments to countries at war in South America. In rejecting the challenge, the Court held that the president had “plenary” powers in foreign affairs that didn’t depend on congressional delegation. The Supreme Court hasn’t recognized the scope of presidential power suggested by Sutherland. But his arguments were invoked to skirt restrictive laws passed by Congress in reaction to the Vietnam War; to justify undeclared wars, covert operations, and other divisive undertakings; and they laid the groundwork for the torture memo.
Even given the Reagan-Bush precedents, the view of presidential power asserted by the administration of George W. Bush stands out for the far-ness of its far-reaching scope: the Bush position is that the decisions of the president related to a war or national crisis are beyond the reach of statutory or court-made law, even if what he does is prohibited by Congress, the Supreme Court, or an international treaty signed and ratified by the United States. The presidential powers flowing from this position include going to war, detaining and interrogating prisoners, gathering information through electronic spying, and doing much more. When the administration, quailing from fiery criticism, replaced the torture memo with another saying it isn’t lawful to torture prisoners, it didn’t retract the first memo’s stance on the scope of presidential power.
Thanks to articles this past October in The New York Times, we now know that in 2005, when the president said that he agreed with the bill that eventually outlawed “cruel, inhuman, and degrading” treatment of prisoners and a year after the Justice Department’s revised legal opinion called such treatment “abhorrent,” the department relied on its belief in the president’s far-reaching authority to endorse the use of severe and relentless physical and psychological forms of interrogation: head slapping, simulated drowning, exposure to frigid temperatures. We know that, when the articles were published, the until-then-secret opinions laying out this view remained in effect. From the administration’s viewpoint, according to the president himself, the opinions present sound law. Senator Arlen Specter, the Republican from Pennsylvania and ranking member of the Senate Judiciary Committee, called the opinions shocking.”
Since the Nixon era, one legal issue regularly debated in politics has been the scope of judicial power. Judicial review has been roundly attacked as undemocratic, based on the grounds that it undermines the freedom of the majority to govern. Recent legal thinking agrees that this concern has been overblown: scholars have shown that because judges are appointed by elected leaders who are subject to the pressures of politics and the scrutiny of public opinion, the leaders pick judges whose decisions generally track with the views of the majority. In addition, as recent legal history by William Michael Treanor documents, by the time of Marbury v. Madison, the 1803 super-precedent in which Chief Justice John Marshall first asserted for the Supreme Court the doctrine of judicial review, that power was exercised much more often than was previously recognized and courts “aggressively protected their power.” This well-worn controversy about judicial power has led to extensive conversation on both sides about the role that the Supreme Court plays in our constitutional system. We know how to talk about rulings of the Court and its role in American governance. We come to pretty wide agreement about what is a respectable legal decision (Hamdan v. Rumsfeld) and what is a disgraceful political one (Bush v. Gore).
In contrast, the conversation about the law that the executive branch makes for itself takes place largely among a very small cadre of experts. In the wake of the uproar about the torture memo, a group of former OLC lawyers in Democratic administrations tried unsuccessfully to stir extensive talk by issuing a memo titled “Principles to Guide the Office of Legal Counsel.” It summarized “longstanding practices” followed “across time and administrations,” and made the case for the virtues of what they called “craftsmanship.” The first principle was the most salient: “To fulfill this function appropriately, OLC must provide advice based on its best understanding of what the law requires. OLC should not simply provide an advocate’s best defense of contemplated action that OLC actually believes is best viewed as unlawful.” The unmistakable point was that the Bush OLC must have known its torture memo expressed a political, not a legal, judgment.
The principles memo didn’t say that if the president and his administration don’t subscribe to the interdependence/reciprocity view about the relationships among the branches, then the notion of the executive branch making law for itself is inconsistent with the tenets of checks and balances. But the thought is hard to dismiss, given how little executive-made law is reviewed by courts or appraised by Congress. If the president and his administration subscribe to the interdependence/reciprocity view, despite the lack of review and appraisal, then they are restrained by the view itself. It compels them to take account of the other branches’ interests and to respect limits set in statutes and court rulings. If they don’t subscribe to that view, though, they are effectively unchecked. The latest evidence is the Justice Department’s secret opinions justifying the severe and relentless forms of interrogation that the president maintains are not torture— secret in the sense of hush-hush, because they are classified, and secret in the sense of deceitful, because they superseded an opinion expressly issued to give the opposite impression.
That thought about an unchecked executive branch relates to a more sweeping one developed in a provocative piece of recent scholarship about the separation of powers. Daryl Levinson and Richard Pildes in the June 2006 Harvard Law Review argue persuasively that the lack of competition between the branches during the Bush administration before this year was not a malfunction of the system; it was one piece of evidence among many that the system no longer works as it was intended. The Framers despised political parties, but it’s the parties through which competition about ideas for governance now takes place. When the government is unified, with the same party controlling both elected branches as the Republicans did until last January, competition basically disappears.
If the scope of executive power were a burning topic of politics, the breakdown allowing the power to expand dramatically might not feel so momentous— whether you regard it as a breakdown in the American legal process or in the system of checks and balances. Among the current Democratic and Republican presidential candidates, however, none has attacked executive supremacy as forcefully as past candidates assailed judicial supremacy. None has made executive restraint a rallying cry. Torture, illegal surveillance, and other contentious practices of the Bush administration have drawn criticism from candidates of both parties, but not one of them has focused on the underlying problem.
The most urgent legal and political issue of our time might as well not exist. Since 9/11 our democracy has functioned like an autocracy. In making one significant choice after another, the Bush administration has repeatedly done what Nixon only threatened to. But this is a nonissue in the current presidential race. That is so even though what’s at stake is a fundamental judgment about the nature of the presidency and, therefore, of the Republic.