On April 1, Harvard Law School hosted a conference on “Presidential Power in an Era of Polarized Conflict.” Experts from both sides of the aisle debated the president’s power in foreign and domestic affairs, and in issues of enforcement or non-enforcement.
In introductory remarks, Professor Mark Tushnet described the polarized nature of current discussions about presidential power.
On one hand, he said, one end of the conversation is encapsulated by the recently published book “Lawless: The Obama Administration’s Unprecedented Assault on the Constitution and the Rule of Law,” which features a foreword by Senator Ted Cruz ’95. “You can open to a random page and find some account of asserted lawlessness” in contexts ranging from the Affordable Care Act to No Child Left Behind, Tushnet said.
On the other hand, Tushnet continued, defenders of the Obama Administration project a tone of “‘move along, there’s nothing to see here…all of this is just routine exercise of well-established presidential authority.”
Dorf on Law: The Default Rule of Prosecutorial Discretion
Cornell Law Professor Michael Dorf ’90, a panelist in the afternoon session on ‘Enforcement and Non-Enforcement,’ shared his post-conference thoughts on his blog ‘Dorf on Law.’ In the post, he focused on a question that arose throughout the day: “When, if ever, do laws governing the primary conduct of private actors include an implicit instruction to the executive branch to enforce those laws to the full extent?” Read the full post
“The hope of this conference, I think, is that we would be able to have somewhat more nuanced discussions of these issues,” Tushnet said. “It actually might be the case that some of the things the administration has done do, at the very least, push the boundaries of previously established notions…and some of them are just routine actions of a sort that have been taken before.”
“I do want to note,” Tushnet added, “that the framing of these issues in an era of polarized politics is in my view the most interesting part of it.”
The series opened with a foreign affairs panel moderated by David Barron ’94, a U.S. Circuit Judge for the First Circuit and a visiting professor at the law school. The panel also featured Harvard Law Professor Jack Goldsmith, who served in the Department of Justice during the Bush administration; Yale Law Professor Bruce Ackerman, whose most recent books include “The Decline and Fall of the American Republic” (2010), and “The Failure of the Founding Fathers” (2005); and University of Minnesota Law Professor Heidi Kitrosser, who wrote the award-winning 2015 book “Reclaiming Accountability: Transparency, Executive Power, and the U.S. Constitution.”
The foreign affairs panel revealed disagreement among the speakers about whether recent developments in presidential power have triggered a crisis. Ackerman cautioned, “We now have a mechanism for extremist presidents, and we have this deeply politicized process. This has grown without fundamental constitutional reflection, and that is what I am calling for.” He proposed creating a “supreme executive tribunal” of nine Article III judges with nine-year terms, rolling over every three years, “to shape the legal structure for the next president.”
Ackerman said “we need an internal balance of separation of powers in the executive branch which is serious and structured, to respond to the evident pathologies,” such as “clever lawyering which justifies the ends with the means.”
“We cannot justify this deep, deep assault on the rule of law in the executive branch by pointing to some good ends and some bad ends when President Obama is—notice, note—he’s a constitutional lawyer. He’s genuinely a thoughtful and serious person,” Ackerman continued. “And we have no guarantee, in the words of Madison, that enlightened statesmen will always be at the helm, and we have…a powerful reason for thinking that he won’t be.”
Kitrosser followed Ackerman with remarks focusing on transparency and accountability, two concepts which she described as the “common denominator” that many constitutional law thinkers fall back on “when talking about how to reconcile war powers and national security with the rule of law.”
She discussed the pros and cons of reporting requirements, which are the “go-to provision” across the political spectrum. While reports are “far from a panacea,” required reports can “at a minimum” become a “focal point for debate, for discussion, some demand for more information,” Kitrosser said.
“Politics are a very important part of why, as a practical matter, the President can often get away with presenting things as a fait accompli,” she explained.
“Congress, even when you have a partisan divide, is in a really tough political spot when it comes to national security,” Kitrosser said. “Nobody wants to be perceived as weak on national security; there are minimal political gains to be had from pushing back on presidential bellicosity even when it takes the form of objections about unilateralism.”
Goldsmith observed that “a lot of things have changed” about separation of powers regulation in the law few decades, “and a lot of the rise of what you’re calling this ‘executive branch politicized bureaucracy’ is a response to the need to maneuver through all of this stuff.”
“I don’t think that the problem is fundamentally different than it was in Jackson’s day, or Lincoln’s day, or frankly in 1793 when Washington on the advice of his cabinet issued the neutrality proclamation—which … was quite clearly unlawful and a bad interpretation of the treaty.”
“So this is not a new phenomenon. I think it’s probably a harder phenomenon to avoid because the executive has in so many respects had to make interpretation of law before he can enforce it and before he can act,” he said.
Responding to Ackerman’s tribunal proposal, Goldsmith said, “I just think your faith in having another group of lawyers with more independence inside the executive branch is largely misplaced, and indeed, what they would do is to confer further legitimacy than the Office of Legal Counsel can on these actions.”
Turning to domestic affairs, Professor Richard Lazarus ’79 described environmental law as the “poster child for the polarization we’re talking about and the pressures that places on the different branches of government to respond to problems.”
Georgetown Law Professor Marty Lederman spoke about his experience serving in the Office of Legal Counsel for the Obama Administration. “Everyone thinks that lawyers going to the government will tell the president ‘yes’ no matter what the question is,” Lederman said. “I don’t think that’s remotely what goes on in the executive branch, but I worry that narrative will encourage that kind of conduct going forward.”
Nolan McCarty, who teaches politics and public affairs at Princeton University, said “congressional polarization and loss of capacity are probably ultimately responsible” for the presidential administration moving forward “in creative ways,” often without congressional support, in times of crisis.
Professor Laurence Tribe ’66 began his lunchtime keynote by saying, “I know people think we have an imperial Presidency and the rest is just frill, but I want to dig beneath the generalizations.”
“It’s clear this President has developed rather muscular views of his statutory and sometimes inherent authority,” he said.
Tribe focused on analyzing and criticizing the famous tripartite framework set forth in Justice Jackson’s Youngstown concurrence. “The surface elegance of that framework has led the Court and commentators alike to skip over” the opinion’s “insufficient guidance on how to navigate Jackson’s famous ‘twilight zone’ of congressional silence,” he said.
“The awkward truth is that despite its place on the Mount Rushmore of legal frameworks, Youngstown offers no meaningful baseline against which to assess the operative legal significance of Congress’ silence,” Tribe said.
“Does such silence give the president a green light to proceed within specified constraints and under identified circumstances? Or a red light that only a clear Congressional green light in the future can flip over?” he continued. “Or a yellow light that calls on the judicial branch to perform the epistemologically and institutionally dubious role of divining and giving effect to what was in the mind of 535 elected officials when they deliberately or inadvertently left things up in the air?”
“By saying virtually nothing about the appropriate framework for evaluating presidential exercises of power along that normative constitutional axis, and instead classifying presidential power only along the descriptive axis of congressional will on the matter, the Youngstown triptych left future courts maximum wiggle room, but only by setting up occasions for unaccountable and frustratingly opaque buck-passing among the branches,” Tribe said.
“Instead of laying down a tripartite scheme for mapping exercises of presidential authority against the backdrop of what is called ‘the will of Congress,’ I think the Court should have at least begun the process of articulating a body of underlying principles to govern the constitutionality of various types of executive action when, apart from the dubious efforts of reading the tea leaves of the imagined congressional mind, one just cannot say that congress authorized the executive action at issue, or that it prohibited it,” he said.
An afternoon panel on non-enforcement and enforcement featured Tushnet, University of California Hastings Law Professor Zachary Price ’03, and Cornell Law Professor Michael Dorf ’90. In the conference’s final event, Professor Charles Fried and Princeton Professor Nolan McCarty offered their reflections on the day’s discussions.
“One hopes that the impossible Congress we have now—in all the nonsense and posturing and refusal to do their job—will stop, and at some point, we will have a Congress which will join the government, and we’ll have a different kind of conference,” Fried said.