Accountable Strategies blog

A blog about accountability issues in the public, private, and nonprofit sectors

How can we restore our constitutional checks and balances?

Posted by David Kassel on November 7, 2007

Jack Goldsmith, a former director of the critically important Office of Legal Counsel in the Justice Department, had a stormy relationship with the White House, issuing opinions contrary to the White House position on matters including torture and electronic surveillance. 

 In The New Republic, Neal Katyal, former National Security Advisor at the Justice Department, reviews Goldsmith’s new book, The Terror Presidency: Law and Judgment Inside the Bush Administration, in which Goldsmith describes his growing disillusionment with an administration that has run roughshod over the Constitution. 

As might be expected, Goldsmith didn’t last long in his post.  That’s not to say he was a closet liberal in a conservative administration—he co-wrote an article arguing that President Bush’s 2001 order establishing military tribunals to try suspected terrorists was perfectly legal. 

Yet, Goldsmith grew increasingly disturbed with the White House view that the president “has a virtually unlimited and unsupervised ability to override laws of Congress that interfere with his duties as commander in chief,” as Katyal describes it.

Katyal maintains that after 9/11, the White House adopted a radical, “aggrandized” view of the respectable “unitary executive theory,” which holds only that Congress and the Judiciary cannot interfere with internal executive branch matters, such as the firing of executive branch officials.

Somehow, the unitary executive theory morphed in the hands of Vice President Cheney, his now chief of staff David Addington, Berkeley law professor John Yoo and some others into the position that the president could legally ignore a variety of federal laws, including laws prohibiting torture and electronic evesdropping on Americans without a special court order.  Hence, Bush’s multitude of signing statements, asserting, among other things, that he could bypass a statutory ban on torture and that he would ignore laws passed by Congress forbidding warrantless domestic spying.

Katyal points out correctly that when it comes to the imposition of constitutional checks on Bush’s executive branch actions, Congress and the courts have largely abdicated their duty, particularly in the war on terror.  But here is where I lose him a bit.  He concludes  that American government needs to be “re-oriented” in order to bring the “separation of powers” into the executive branch itself.  Huh? What?

Using the OLC to illustrate his idea, Katyal notes that the OLC currently has two conflicting roles—that of advisor to the president and adjudicator of legal issues in the administration.   This has effectively prevented the office from acting as a neutral decision-maker, and explains the short tenure Goldsmith had at OLC before he was replaced by a more compliant head of the office. 

Katyal’s solution is to transfer the OLC’s adjudication function to a separate official, who would resolve interagency disputes and straddle presidential terms.  He explains that this approach is an attempt to introduce internal checks within the executive branch, rather than “hoping that it (the separation of powers) will rematerialize in Congress and the courts.”

The problem I have with this approach is that it assumes that any president, let alone George Bush, would accept a situation in which the executive branch would be bound by the opinions of an internal lawyer, who was somehow independent of the president’s political influence.   In suggesting this approach, Katyal seems to assume that there is a way to decide legal issues free of politics.  I’m not a lawyer, but I don’t think that can be done.   Politics will always be part of the decision-making in the executive, including the legal decision-making. 

It’s true that the Bush administration has taken politics and its lesser bedfellow, ideology, to new heights of arrogance and possible illegality.   Yet, Katyal seems to be giving up on Congress, in particular, as a constitutional check on that executive overreaching.  The idea seems “hopelessly outdated,” he says, referring to Madison’s writing in The Federalist that “ambition must be made to counteract ambition.”  That is giving up on a lot—in particular, the premise on which Our Founders devised our government, as Katyal himself describes it.

I still harbor the hope that Congresss will ultimately do its job of checking the powers of the executive.  If not, I believe the public will vote for yet another change in the leadership of that branch of government.  As The New Republic put it in the same issue, if Congress doesn’t assert itself soon, the Democrats may not have a majority there to squander for very long.

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