Published by The Lawfare Institute
in Cooperation With
Published by The Lawfare Institute
President Obama has exercised executive power aggressively – as did his predecessor, albeit in different ways. I don’t have time to parse and compare the differences, but in a nutshell (and simplifying a lot), the Obama administration has asserted enormous discretion under the “take care” clause to not enforce certain federal statutes, while President Bush embraced a very broad conception of the Commander-in-Chief and related exclusive executive powers in declining to enforce certain federal statutes, and both presidential administration's deployed the power of interpreting federal statutes in self-serving ways. It is pointless to try to assess whether President Obama is “better” or “worse” than President Bush on this front. But I think that both administrations acted in good faith in interpreting executive powers aggressively, and that both administrations might have gone too far – and violated the separation of powers – in some of its aggressive assertions of power. It is important to note that most Presidents in American history – and every single great one – have deployed executive power in unprecedentedly aggressive ways, and were accused of being dictatorial. Clinton Rossiter correctly noted that if a president is not “widely and persistently accused in his own time of ‘subverting the Constitution,’ he may as well forget about being judged a truly eminent man by future generations.” Rossiter was not saying that lawlessness is a guarantee of greatness. But the legal line between presidential and congressional powers is often broad and fuzzy, and presidents often must act within the fuzzy area (and sometimes beyond it) to achieve the great and important goals that they believe they are charged with by virtue of elections and the office of the presidency. When the president succeeds – when he achieves through aggressive executive power the vital goals of which the country approves – the constitutional aggressiveness tends to be overlooked or downplayed. Think Jefferson, Lincoln, Roosevelt, Eisenhower, and Reagan, among others. Of course, Presidents go too far, sometimes abusively, sometimes not. And most acts of aggressive presidential power do not serve great or lofty ends. But this would not have remotely surprised the framers, who purposefully created a strong Executive branch, fully aware that it would go too far in some instances. Nor would the framers have been surprised that Congress would not always like the President’s interpretations of his own powers or his exercises of such power, and would try to fight back. The framers expected this – they expected that Congress, in protecting its own interests, would keep the President in check if he went too far (with “too far” being defined, almost always, contextually). The framers likely would have been surprised, however, that Congress as an institution would seek to vindicate its own institutional interests by suing the President in an Article III court. They would have expected instead that Congress would use its own political tools to fight back politically to preserve its prerogatives. As Andy McCarthy notes in a terrific essay excoriating the proposed lawsuit for President Obama’s supposed executive overreach, “unlike private citizens for whom courts are the only protection against executive lawlessness, Congress has its own superior constitutional weapons for reining the president in: the power to deny funding that the administration needs and the power to impeach wayward executive officials.” Congress can also cause the President misery on many other dimensions. But it takes a lot of work for Congress to exercise its constitutional responsibilities of investigation and oversight and pushback. So much easier to call in the lawyers and authorize them to bring a high-profile lawsuit, especially with mid-terms around the corner! And so one can only sigh when House Judiciary Committee Chairman Bob Goodlatte, who should be leading the charge against the President in his committee, instead defends the lawsuit on the grounds of “people standing up for the balance of power.” I agree with McCarthy that the lawsuit will almost certainly fail, and should fail, for lack of congressional standing. Conservative legal thought used to maintain that standing was a vital element of the separation of powers, and used to resist institutional congressional lawsuits against the presidency as a constitutional solecism. But apparently not any more.
Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Senior Fellow at the Hoover Institution. 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.
The petitioners are represented by counsel for Free Speech For People, a non-profit that has filed similar challenges in Minnesota and Michigan.
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