Benjamin Wittes and Jack Goldsmith argue that President Obama is repeating one of his predecessor’s mistakes: attempting to set terrorist-detention policy unilaterally. “Bush’s approach avoided congressional meddling but paradoxically sloughed off counterterrorism policy on the courts. Over time, the judiciary grew impatient with ad hoc detention procedures that lacked clear and specific legislative authorization, and judges began imposing novel and increasingly demanding rules on the commander in chief’s traditionally broad powers to detain enemy soldiers during war.” Obama’s unilateral policies, they write, could face the same fate.
I found this sort of argument persuasive for much of the last eight years. But it has seemed a lot less persuasive to me since the Supreme Court struck down the Military Commissions Act. Congressional buy-in didn’t count then. I’d be interested in what Andy thinks, of course, but my impression is that the courts want to run this show.