Bench Memos

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Whitehouse Attacks White House, to No Effect


A bemused reader put me onto a speech given by the freshman Democratic senator from Rhode Island, Sheldon Whitehouse, on the floor of the Senate last Friday.  It’s so awful that it appears not to have been covered by any of the senator’s home-state newspapers, no doubt out of a quiet embarrassment–although Whitehouse’s staff sent it out as a press release and posted it on his website.  The subject of the speech is the general awfulness of the Bush administration, which as we all know “seeks to spy on Americans” because . . . well, just because it’s so much darn fun.

But by far the best part of Whitehouse’s speech is devoted to the dark subject of “highly classified secret opinions on surveillance” written over the past several years by the Justice Department’s Office of Legal Counsel.  He breathlessly tells us that he

was given access to those opinions, and spent hours poring over them.  Sitting in that secure room, as a lawyer, as a former U.S. Attorney, legal counsel to Rhode Island’s Governor, and State Attorney General, I was increasingly dismayed and amazed as I read on.

And what so amazed our ninny from the Narragansett?  Specifically, “three legal propositions,” which he says he somehow got “declassified,” yet cannot produce in any verbatim form in OLC documents. 

Here they are, as accurately as my note taking could reproduce them from the classified documents.  Listen for yourself.  I will read all three, and then discuss each one. 

1.      An executive order cannot limit a President.  There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order.  Rather than violate an executive order, the President has instead modified or waived it.

2.      The President, exercising his constitutional authority under Article II, can determine whether an action is a lawful exercise of the President’s authority under Article II.

3.      The Department of Justice is bound by the President’s legal determinations. 

Classified or declassified?  Whitehouse can’t seem to make up his mind.  One moment he claims to have pried loose these “secrets,” and the next he suggests that because they are still classified he only has his notes to go on. 

But never mind that distraction.  Let us take his notes as completely accurate renditions of what he read, with no worries about their original contexts, and take them as given.  Whitehouse is exercised about a whole lotta nothing, since each of the three horrors he recites is in fact a perfectly unobjectionable, indeed innocuous, statement of constitutional principle.

The first principle goes without saying.  No act of a legislature can prevent a future legislature from repealing or amending that earlier act, and such amendment or repeal can be understood to have occurred by implication without the later act even mentioning the earlier one.  By the same token, an executive order has no limiting effect on the authority that made it–the president.  A president may revoke or amend any earlier order that he himself made, or that any of his predecessors made.  Or he can simply act, in complete disregard of such executive orders.  Executive orders are guides to executive action–nothing more and nothing less.  They may on occasion express an executive position on the meaning of a law, such that citizens and others shape their behavior according to expectations reflecting such interpretation.  But I know of no instance in which executive orders have ever called into being, ex nihilo, any rights of individuals not embodied in or inferred from the Constitution or a statute or treaty.  Hence the orders of the executive are no constraint on the actions of the executive–the quintessentially active branch of government.  It may be bad form for a president to contradict, by his actions, the words of an executive order that is not revoked or amended; it may even be “sneaky” to do so in secret and leave the public with the impression that the order still guides action.  But it is no insult to the Constitution to do any of these things, notwithstanding Whitehouse’s imaginings.  And it may be necessary to take such steps sometimes.

The second “proposition” that Whitehouse recites above is a real forehead-slapper.  Of course the president “determines” whether the actions of the executive branch are in conformity with Article II.  That’s the president’s job.  He is sworn (in an oath uniquely spelled out in the Constitution) to “faithfully execute the Office of President” and to “preserve, protect and defend the Constitution.”  It is likewise the business of Sheldon Whitehouse and his colleagues in the Congress, before they cast their votes on legislation, to “determine” for themselves whether they are exercising their Article I powers in conformity with their proper purposes.

Dimly recalling some long-ago law-school class, Whitehouse thinks he has the goods on this here Bush administration, trotting out the most widely misunderstood line in the most widely misinterpreted case in American legal history,

a little decision called Marbury v. Madison, written by Chief Justice John Marshall in 1803, establishing the proposition that it is “emphatically the province and duty of the judicial department to say what the law is.”

But that little decision also told us that

[t]he province of the Court is solely to decide on the rights of individuals, not to inquire how the Executive or Executive officers perform duties in which they have a discretion.  Questions in their nature political or which are, by the Constitution and laws, submitted to the Executive, can never be made in this court.

This is the origin of the “political questions” doctrine, side by side in Marbury with what we now call “judicial review.”  Whitehouse would have the latter swallow up the former, which is the classically fallacious move of the judicial supremacist.  But the Bush administration, if Whitehouse has fairly recounted its position, is on firmer ground than the senator.  The executive must always determine the lawfulness of executive action.  The judiciary must sometimes do so.  Ergo there will be times when the executive determination will be the first, the last, and the decisive one.  Sorry, senator.  That’s our Constitution.


Whitehouse’s third “proposition” is in many ways the easiest of all.  Since the Congress decided in 1789 that the governing principle of the relationship between the president and his principal subordinates is that they serve at his pleasure, it has been the orthodox understanding of the presidential cabinet that its members speak for the president, he speaks through them, and thus the unity of the executive branch is maintained.  It follows that the legal determinations of the Justice Department cannot contradict or control the president.  The Department’s chief officer, the attorney general, does not govern but is governed by the will of the president.  Now the law is what it is, and if the attorney general or other legal counselors in the executive branch offer sound interpretations of the Constitution and laws with which the president disagrees, his determination, by prevailing, will set the executive understanding of the law at odds with the law as properly understood.  In such a case the sworn officers of the Justice Department, whose duty to the Constitution is higher than their duty to the president, may and sometimes should resign in keeping with their best judgment and the dictates of their consciences.  Nevertheless, until and unless the Department gets its keel back under it and rights itself, it will, under the principles of the very same Constitution, speak as the wrongheaded president speaks.  What will right a wrongly directed Justice Department?  The same thing that turned it to the wrong course in the first place: presidential determination.  By statute, certain officers have duties to tell the president not what he wants to hear, but the law as they understand it.  But by the Constitution and by the plenary removal power Congress has left unhindered in presidential hands in this area, the department is the president’s creature, not the other way around.


Sheldon Whitehouse’s scary bedtime stories are best told to people who understand nothng of the Constitution.



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