Former Bush Administration attorney general and White House counsel Alberto Gonzales has written a response to my USA Today op ed on unanimous Supreme Court opinions and executive overreach. Gonzales largely agrees with my assessment of the Obama administration’s record, but – not surprisingly – he takes issue with my argument that Obama’s overreach was paralleled by similar practices in his own administration:
George Mason law professor Ilya Somin… correctly concludes that when a “president pursues policies that require such expansive federal power that he can’t get a single justice to agree, something is probably amiss….”
However, Professor Somin misses the mark when he equates the record of President George W. Bush with the current administration with respect to pushing the limits of federal executive power. Having participated in more discussions than I can count on terrorism-related issues with some of the brightest lawyers in America, I can attest that the legal issues we confronted after the September 11, 2001 attacks were difficult and unique. I concede we did not always accurately anticipate where the Supreme Court would draw the balance between security and liberty. However, I derive some professional satisfaction knowing that, unlike with the 9-0 court shutouts the professor highlights, the justices struggled with the issues presented in the four major terrorism cases decided during my tenure in government: Hamdi v. Rumsfeld, Rasul v. Bush, Hamdan v. Rumsfeld and Boumediene v. Bush.
Collectively these four cases produced 17 opinions, not one of which was able to attract more than five votes. In the Hamdan case alone, six of the eight participating justices felt compelled to author an opinion, thus showing the difficulty of the issues presented….
The Obama era cases identified in Professor Somin’s writing deal primarily with issues in the domestic arena. At least in those cases in which President Bush has been accused by pundits and political critics of governing as an imperial president, he acted in response to national security threats….
I believe strongly in the exercise of executive power to protect our citizens. I believe even more that those actions must be constrained by the limits of the Constitution. The Bush Administration took extraordinary actions in response to an extraordinary threat. However, many people worked hard to ensure that the exercise of presidential power was within appropriate constitutional limits.
Former attorney general Gonzales is correct in pointing out that some of the arguments made by the Bush administration in the Guantanamo cases were accepted by the Supreme Court, and others were only narrowly rejected. But it is also true that the administration made some extreme claims in those cases that were repudiated by nearly all the justices. For example, in the Hamdi case, 8 of 9 justices rejected the administration’s position that it had nearly unlimited authority to indefinitely detain American citizens it concluded were enemy “combatants” in the War on Terror. In his dissenting opinion in that case, staunchly conservative Justice Antonin Scalia concluded that the administration’s position on that issue was inconsistent with “[t]he very core of liberty secured by our Anglo-Saxon system of separated powers [which] has been freedom from indefinite imprisonment at the will of the Executive.” In Medellin v. Texas (2008), all nine justices (including Bush appointees Roberts and Alito) rejected the administration’s claim that it had the authority to order a state government to comply with a decision of the International Court of Justice, even when neither Congress nor a “self-executing” international treaty had given the president such enforcement authority.
The Bush administration also made sweeping claims of executive power that ultimately did not reach the Supreme Court, but were extremely troubling nonetheless. The most famous examples are the Bybee and Yoo “torture memos” of 2002-03, where the Bush Office of Legal Counsel claimed not only that extremely harsh methods of interrogation were legal, but went so far as to assert that the president had the authority to order their use even if Congress had specifically banned them. The torture memos were later repudiated by the administration only after an intense public and international outcry. Even Judge Michael Mukasey, Alberto Gonzales’ successor as attorney general in the Bush administration, denounced the Bybee memo as “worse than a sin, it was a mistake. It was unnecessary.”
It is true, of course, that the Bush administration’s most expansive claims of unilateral executive authority were made in the national security field (though Medellin did not involve national security). But that does not vitiate their dangerous nature. As I noted in my original op ed, administrations that push the limits of their constitutional authority almost always claim that they have good reasons for doing so. To paraphrase the former attorney general himself, constitutional limits on government power are often most at risk precisely when an administration believes it must take “extraordinary actions in response to an extraordinary threat.”