This book, by journalist Charlie Savage was published six years ago, but I just finished it. It’s a well-written, well-researched critique of the George W. Bush’s Administration’s abuse of executive power based on often extremely dubious constitutional theories. If you’re interested in the subject matter, it’s well worth reading, despite its age. Of particular interest […]
Archive | Executive Branch
Is Concern about “Czars” Purely a Partisan Issue?
Quite a few commenters responded to my post about President Obama’s use of high-level appointees not subject to Senate confirmation, colloquially known as “czars,” with some version of the claim that the whole issue is a purely partisan attempt by right-wing Republicans to attack the president. It’s therefore worth pointing out that to their credit, […]
Can the President Spend Money on Something Congress “Defunds”?
I’ve always thought that when it came to turf wars between the executive and legislature, Congress held the trump card of the “power of the purse.” But here’s what happened back in 2011 when Congress voted to defund several “czar” positions, positions that upset people on both sides of the aisle because they can be […]
House Judiciary Committee Hearing: Take Care Clause
On Tuesday morning at 10:00am, the House Judiciary Committee will hold a hearing about the President’s constitutional duty “to take Care that the Laws be faithfully executed.” Michael Cannon, Simon Lazarus, Jonathan Turley, and I will testify. Video here and possibly on C-SPAN. UPDATE: I will be discussing this with Greta on Fox News, Tuesday, […]
Judge Rejects Immediate Appeal in Fast and Furious Document Case
Last month, Judge Amy Berman Jackson denied the federal government’s motion to dismiss a suit filed by the House Committee on Oversight and Government Reform to enforce a subpoena for documents related to the “Fast and Furious” scandal. Today, Judge Jackson rebuffed the Justice Department again, refusing to certify her decision for an immediate appeal. According to Judge […]
The Constitutionality of the ObamaCare “Fix”
By Eugene Kontorovich on November 14, 2013 1:25 pm in Congress, Constitutional Law, Executive Branch, Health Care, Obama, Separation of Powers, Uncategorized
President Obama in his speech on “fixing” the Affordable Care Act today did not specify what statutory authority, if any, he thinks authorizes him to make such dictats. Given the gargantuan length of the ObamaCare statute, he might still be looking. Press reports say the President is claiming a broad “enforcement discretion.” It is true […]
Judge Denies DoJ Motion to Dismiss Case Seeking “Fast and Furious” Documents
Yesterday, Judge Amy Berman Jackson of the U.S. District Court for the District of Columbia denied the federal government’s motion to dismiss a suit filed by the House Committee on Oversight and Government Reform to enforce a subpoena for documents related to the “Fast and Furious” scandal. The Justice Department has refused to turn over […]
A Hands-Tied Presidency?
By Jonathan H. Adler on September 8, 2013 9:26 am in Executive Branch, Separation of Powers, War and Armed Conflict
In an essay for the NYT Sam Tanenhaus argues that President Obama “holds office at a time when the presidency itself has ceded much of its power and authority to Congress.” No, really. This is what he says. It is, frankly, a rather bizarre claim. As a great deal of academic work has documented (including an […]
Wall Street Journal Op-Ed: Two Presidents, Two Suspensions
By Nick Rosenkranz on August 17, 2013 8:48 am in Constitutional Law, Executive Branch, Habeas, Health Care, Obama, Presidency, Separation of Powers
My op-ed in today’s Wall Street Journal compares Obama’s suspension of the ObamaCare employer mandate with Lincoln’s suspension of the writ of habeas corpus. Both Presidents were constitutional lawyers; both Presidents unilaterally suspended the law; and both suspensions were constitutionally dubious. But what they did next could not have been more different. The op-ed is […]
NY appellate court rules 5-0 against Bloomberg soda ban
By David Kopel on July 30, 2013 2:02 pm in "Bullying" Bans, Administrative Law, Constitutional Law, Executive Branch, Food and Drink, Growth of Government, Health Care, New Class, Paternalism, Separation of Powers
The First Department of the Appellate Division of the New York Supreme Court has ruled 5-0 against NYC Mayor Michael Bloomberg’s soda ban, in the case of In re New York Statewide Coalition of Hispanic Chambers of Commerce, et al. v. The New York City Department of Health and Mental Hygiene, et al. (The Hispanic […]
Former Bush Attorney General Alberto Gonzales Responds to my USA Today Op Ed on Unanimous Supreme Court Decisions and Executive Overreach
By Ilya Somin on July 29, 2013 5:07 pm in Constitutional Law, Executive Branch, National Security, Supreme Court, War on Terror
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 […]
My USA Today Op ed on the Troubling Implications of Cases where the Administration Loses 9-0 Decisions in the Supreme Court
USA Today has just posted my op ed on the troubling implications of cases where the executive branch loses unanimous Supreme Court decisions: Those of us who follow Supreme Court decisions spend most of our time debating the contentious issues that divide justices 5-4 along predictable ideological lines…. But we might do well to pay […]
James Comey Nominated for FBI Director
Yesterday, President Obama nominated Jim Comey to serve as the next FBI Director. One of Comey’s many claims to fame was the dramatic confrontation with White House officials over John Ashcroft’s hospital bed; the New York Times has a compelling account of that episode here. (I was at the Office of Legal Counsel at the […]
No, the IRS Is Not an “Independent Agency”
Responding to press questions about the IRS scandal, White House spokesperson Jay Carney claimed that the IRS is an “independent agency.” At the Federalist Society’s new Executive Branch Review blog, former Assistant Attorney General Eileen O’Connor, who oversaw the Justice Department’s Tax Division, explains that Carney was quite wrong on this point. Most Executive Branch […]
Justice Department Seized AP Phone Records
By Jonathan H. Adler on May 13, 2013 8:04 pm in Executive Branch, Freedom to Gather Information, Press, War on Terror
The AP reports: The Justice Department secretly obtained two months of telephone records of reporters and editors for The Associated Press in what the news cooperative’s top executive called a “massive and unprecedented intrusion” into how news organizations gather the news. The records obtained by the Justice Department listed outgoing calls for the work and […]