The Volokh Conspiracy - Supreme Court Rejects Executive Power Claim:

The Supreme Court today rebuffed the Bush Administration's claim to broad executive power, rejecting arguments first asserted in a 2001 opinion by the DOJ Office of Legal Counsel. The vote was 6-3.

Justice Kennedy's majority opinion flaty rejected the Bush Administration's broad claims to executive authority, dismissing the Administration's position as a "radical shift" to claim "extraordinary" and "unrestrained" power:

[T]he Attorney General claims extraordinary authority. If the Attorney General's argument were correct, his power . . . would be unrestrained. It would be anomalous for Congress to have so painstakingly described the Attorney General's limited authority . . . but to have given him, just by implication, authority [over] an entire class of activity . . . .

Justice Kennedy rejected claims made on behalf Attorney General Alberto Gonzales that the Executive Branch had independent authority to interpret federal law: "The statutory terms. . . do not call on the Attorney General, or any other Executive official, to make an independent assessment of the meaning of federal law." "The idea that Congress gave the Attorney General such broad and unusual authority . . . is not sustainable." The Court's opinion ended with a particularly harsh rebuke of the Administration's claims of broad executive power and reemphasized the role of Congress:

The Government, in the end, maintains that the [statute] delegates to a single Executive officer the power to effect a radical shift of authority . . . . The text and structure of the [statute] show that Congress did not have this far-reaching intent to alter the [institutional] balance and the congressional role in maintaining it.

Justice Scalia dissented, joined by Chief Justice Roberts and Justice Thomas. Scalia argued that it was proper to defer to the Executive Branch's efforts to protect public safety, noting that from "an early time in our national history, the Federal Government has used its enumerated powers" to protect such interests.

(Okay, so the case today involved assisted suicide, not enemy combatants or the NSA surveillance program. Still, the language in Kennedy's majority opinion is pretty interesting, isn't it?)

	[Orin Kerr, January 17, 2006 at 7:44pm] Trackbacks Supreme Court Rejects Executive Power Claim: The Supreme Court today rebuffed the Bush Administration's claim to broad executive power, rejecting arguments first asserted in a 2001 opinion by the DOJ Office of Legal Counsel. The vote was 6-3. Justice Kennedy's majority opinion flaty rejected the Bush Administration's broad claims to executive authority, dismissing the Administration's position as a "radical shift" to claim "extraordinary" and "unrestrained" power: [T]he Attorney General claims extraordinary authority. If the Attorney General's argument were correct, his power . . . would be unrestrained. It would be anomalous for Congress to have so painstakingly described the Attorney General's limited authority . . . but to have given him, just by implication, authority [over] an entire class of activity . . . . Justice Kennedy rejected claims made on behalf Attorney General Alberto Gonzales that the Executive Branch had independent authority to interpret federal law: "The statutory terms. . . do not call on the Attorney General, or any other Executive official, to make an independent assessment of the meaning of federal law." "The idea that Congress gave the Attorney General such broad and unusual authority . . . is not sustainable." The Court's opinion ended with a particularly harsh rebuke of the Administration's claims of broad executive power and reemphasized the role of Congress: The Government, in the end, maintains that the [statute] delegates to a single Executive officer the power to effect a radical shift of authority . . . . The text and structure of the [statute] show that Congress did not have this far-reaching intent to alter the [institutional] balance and the congressional role in maintaining it. Justice Scalia dissented, joined by Chief Justice Roberts and Justice Thomas. Scalia argued that it was proper to defer to the Executive Branch's efforts to protect public safety, noting that from "an early time in our national history, the Federal Government has used its enumerated powers" to protect such interests. (Okay, so the case today involved assisted suicide, not enemy combatants or the NSA surveillance program. Still, the language in Kennedy's majority opinion is pretty interesting, isn't it?)