pageok
pageok
pageok
Executive Power and the Election of 2006:
With the Democratic takeover of the House, and the continuing possibility of a Democratic takeover of the Senate, we're obviously going to see a lot more friction between Congress and the President in the next two years. Am I right in thinking that this is likely to lead to a series of new judicial precedents on the scope of executive power?

  The GOP Congress was eager to get along with the President, but the Democratic House (and possibly Senate) obviously won't be. For example, I assume the House will have lots of hearings and demand lots of documents from the Executive; when this happens, we can be pretty confident that the Executive will assert broad claims of executive privilege. These claims presumably will be resolved by the courts, and neither side is likely to back down. Both will want to litigate the issue to the fullest.

  I would guess, on the whole, that this isn't good news for proponents of strong executive power. I think it's fair to say that the Executive Branch's credibility on executive power claims is relatively low these days among the folks with Article III appointments. For better or worse, this isn't the most friendly judicial environment in which to push a strong Article II. Of course, a single retirement might alter the balance at the Supreme Court; the Hamdan Five might become four. However, the confirmation process to fill an open seat would need to go through the new Senate first.
Anderson (mail) (www):
Everything Prof. Kerr writes seems correct to me; I would only add that this White House isn't going to care very much whether its claims are ultimately upheld by the courts (though a Republican victory in 2008 might make that possible).

All they have to do is keep the matters litigating for two more years.
11.8.2006 9:09am
Just an Observer:
The most salient question of executive power obtains in the NSA domestic-surveillance controversy, which does remain alive in the lame-duck session. I have to think that Senate Democrats now would be emboldened to filibuster an attempt to pass the Specter bill, but perhaps the White House would try to get the House-passed Wilson bill through the 109th Congress in its waning days. Presumably, Democrats would seek to block any action until January.

If the matter is carried over to the next Congress, I suspect that the Feinstein approach to amend FISA incrementally would become the primary legislative vehicle. It remains to be seen whether this White House would be interested in any bipartisan approach to the policy issues raised. Executive power seems to be a core matter of ideology for Bush and Cheney.

Meanwhile, if this Congress adjourns without passing something that moots the NSA cases, Judge Lynch in New York will probably become the second federal judge to rule on the matter. Of course, Judge Taylor's ruling against the administration in ACLU v NSA is already pending in the Sixth Circuit. If he gets past standing issues, and reaches the merits, Bush will be in deeper trouble.

The entire strategy over the NSA matter has been to delay action in the courts and avoid judicial review of the merits, while waging a political campaign with the objective of a legislative fix. That political endgame is now at risk.

But it will likely take a long time to get the merits before the Supreme Court, if that happens at all. Anderson may be right. The administration may just try to run out the clock for two years.

Administration lawyers don't want the "strong Article II theory" -- which they have advanced as a public-relations justification for breaching FISA -- ever to see the inside of an appellate courtroom. I don't think even the Hamdan dissenters (except possible Thomas) would uphold this radical theory, which so far DOJ is afraid to argue forthrightly in any brief in the NSA cases for fear of teeing up the question for a loss. The Hamdan minority dissented strongly over statutory interpetation of the AUMF and UCMJ, but embraced the Youngstown framework that probably dooms this Article II constitutional "argument."

As for battles over executive privilege and state secrets that may arise in the context of congressional oversight, that very likely will occur.
11.8.2006 11:12am
Syd (mail):
The GOP Congress was eager to get along with the President, but the Democratic House (and possibly Senate) obviously won't be. For example, I assume the House will have lots of hearings and demand lots of documents from the Executive; when this happens, we can be pretty confident that the Executive will assert broad claims of executive privilege.

This strikes me as a very good thing. The Congress has been far too subservient to the Executive for the last six years, and there are a lot of areas where hearings are in order.
11.9.2006 12:31am
Just an Observer:
President Bush today:

"Some of these issues need to be addressed before the current Congress finishes its legislative session, and that means the next few weeks are going to be busy ones. First order of business is for Congress to complete the work on the federal spending bills for this year, with strong fiscal discipline, and without diminishing our capacity to fight the war on terror.

Another important priority in the war on terror is for the Congress to pass the Terrorist Surveillance Act."

The Terrorist Surveillance Act is the Specter bill to gut FISA, of which the latest version is S 3931.

This issue is very much alive, according to Bush. The lame-duck session is the next scene of action.
11.9.2006 3:19pm