More on Executive Disregard of Federal Statutes

Jack Goldsmith
Friday, November 4, 2011, 12:57 PM
As Bobby notes, Charlie Savage reports that the Obama administration disregarded a congressional statute that banned (through a spending condition) certain activities of the Office of Science and Technology Policy (“OSTP”) involving certain Chinese officials and organizations.  The Office of Legal Counsel

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As Bobby notes, Charlie Savage reports that the Obama administration disregarded a congressional statute that banned (through a spending condition) certain activities of the Office of Science and Technology Policy (“OSTP”) involving certain Chinese officials and organizations.  The Office of Legal Counsel concluded that the restrictions violated “the President’s constitutional authority to conduct the foreign relations of the United States,” and in particular that “[m]ost, if not all, of the [prohibited activities] fall within the President’s exclusive power to conduct diplomacy.”  The executive branch thus maintains that OSTP officials designated by the President to conduct diplomacy could lawfully engage in the activities that Congress had purported to ban. The end of Savage’s story quotes Shannen Coffin, a Bush administration lawyer, urging courts to stay out of matters like this, but the bulk of the story suggests that there something untoward about the executive branch disregarding a federal statute without a court having ruled on the matter.   “Although the Supreme Court has never struck down such a law, the Justice Department pronounced it unconstitutional,” Savage says (emphasis added).  OLC’s reliance on a string of executive branch precedents in this case “illustrate[s] how one president’s assertion of executive power — sometimes in memorandums that are secret at the time — establishes a ‘precedent’ for his successors to develop by applying it to new circumstances,” he adds.  “Each repetition cements and expands the claim without a court ever weighing in” (emphasis added).  Savage then quotes Bruce Ackerman:
This is a bipartisan project of executive aggrandizement.  Law is a disciplined conversation between lawyers and judges. But without any judges, law is a conversation between lawyers and other lawyers — and they’re all on the same side, building upon one another.
Some quick reactions: There is nothing untoward about the President disregarding a statute that he concludes, based on the advice of subordinates, is unconstitutional.  The President has a duty under Article II to “take Care that the Laws be faithfully executed.”  The duty entails the duty to interpret the Constitution and to faithfully execute it when a statute violates it.  That is what the executive branch did here.  One might disagree with the President’s constitutional interpretation; one might think that he has an inappropriately outsized understanding of his own constitutional powers and an unduly cramped view of Congress’s constitutional powers.  But not a word in Savage’s story – by him, Ackerman, or members of Congress – suggests that OLC’s interpretation of Article II is wrong.  Rather, the story focuses on OLC’s reliance on its own precedents to disregard congressional statutes, outside of judicial review.  Executive branch reliance on previous constitutional interpretations to disregard a statute is not inappropriate if the Executive branch’s constitutional interpretation is right. It is true that the Executive branch, in exercising its constitutional duties to interpret and enforce the law, often interprets the Constitution in ways that tend to favor executive power.  It is also true that Congress frequently interprets the Constitution in ways that tend to favor congressional power – perhaps (if OLC is right) in this case, but also in many other instances.  Courts as well often interpret federal law in ways that favor judicial power vis a vis the other branches.  There is nothing surprising about each branch interpreting its authorities in self-serving ways.  The framers expected this, and empowered the other branches to check these tendentious interpretations when they go too far.  Courts cannot review OLC’s determination here, at least not in this case; but there is nothing unusual about that, either.  Cf. Marbury v. Madison (recognizing a class of “political questions”).  Congress has plenty of tools to fight back against the Executive branch if it dislikes or disagrees with his constitutional interpretation.  When the executive branch acts in secret and does not disclose to anyone in Congress its legal views, such checking is impossible; but that is not what happened here. Ackerman is wrong to say that “Law is a disciplined conversation between lawyers and judges.”  A great deal of law, backed by extensive legal interpretation and enforcement, operates outside of courts.  Most law governing the executive branch has this characteristic.  This law is taken seriously, and interpreted and enforced, and has constraining and empowering effects, even though no court can ever interpret it.  These effects take place through executive branch self-restraint, congressional contestation and pushback, and executive branch anticipation of congressional pushback (and, possibly, later judicial review).  The fact that the executive branch in some instances interprets the Constitution to conclude that Congress has exceeded its authority in no way detracts from this conclusion.  Executive disregard of federal statutes is very much the exception. As for the merits of OLC’s arguments, OLC does not, as Savage suggests, simply rely on its own precedents, untied to other forms of constitutional argument.  The OLC opinion cites and relies on Article II’s vesting clause, as well as his Article II powers to “make Treaties,” to “appoint Ambassadors . . . and Consuls,” and to “receive Ambassadors and other public Ministers.”  It also relies on Supreme Court decisions that in other contexts recognize – based on constitutional provisions, as well as historical practice and understanding going back to the founding – that the president has significant constitutional authority related to the conduct of diplomacy.  It would take more time than I now have to do a full analysis of the issue.  But the conduct of diplomacy has always been seen as a core executive branch power, and I agree with Bobby that the arguments for setting aside this congressional restriction is strong. Yes, there is a bootstrapping quality to executive branch precedents (just as there is a bootstrapping quality to judicial precedents).  Many administrations over many years have viewed congressional intrusions into the selection of diplomats and conduct of diplomacy to be unconstitutional, and these precedents pile up and are cited in the future.  The administrations have presented these arguments – based not just on executive precedent, but also on constitutional text and judicial principles in related contexts – in reasoned opinions.  If Congress wants to challenge these opinions, it is free to do so.  But one should not automatically assume that when the President disregards a congressional statute, it is the executive branch and not Congress that has exceeded its authority.  Often, and probably here, it is Congress – an institution that has no institutional machinery to examine the constitutionality of its actions, and that does not offer reasoned constitutional explanations for its statutes – that has gone too far.

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

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