Former OLC nominee Dawn Johnsen objects to Eric Posner’s suggestion that Harold Koh and John Yoo are “peas in a pod” for their aggressive, politically motivated legal interpretations (albeit peas of differing ideological stripes). In her view, both Yoo and Koh are wrong, but in meaningfully different ways. Yoo’s infamous memos on torture and other […]
Archive | Executive Branch
A Thought-Provoking Look at Independent Agencies
So as all of you doubtless already know (and probably discussed over lunch), today the D.C. Circuit in In re: Aiken County rejected as unripe a challenge to the Department of Energy’s decision to withdraw its application to the Nuclear Regulatory Commission for a license to build a permanent nuclear waste repository at Yucca Mountain, […]
Greenwald on Bush, Obama, and OLC
Glenn Greenwald draws an interesting, if unfavorable, comparison between the actions of lawyers in Department of Justice under President Bush and President Obama. Bush decided to reject the legal conclusions of his top lawyers and ordered the NSA eavesdropping program to continue anyway, even though he had been told it was illegal (like Obama now, […]
Balkin on Bush, Obama and OLC
Jack Balkin blogs on the Obama Administration’s decision to overrule OLC at Balkinization. He compares the Obama Administration’s actions with those of the Bush Administration. The Bush White House undermined OLC’s role by cocooning those who were working on certain questions and short-circuiting intra- and interagency rule. Through this process, the White House got the […]
“Extraordinarily Rare”
As Charlie Savage notes twice in the article Jonathan discusses below, the President and the Attorney General have the authority, in the hierarchical Executive Branch, to overrule the advice of OLC. But as the article also notes, it is “extraordinarily rare” for that to happen. When Senator Whitehouse asked me after a hearing in 2008 […]
President Overruled OLC on Libya
The NYT‘s Charlie Savage has confirmed that the President overruled the Department of Justice Office of Legal Counsel’s opinion of what constitutes “hostilities” under the War Powers Resolution, preferring instead the conclusion reached by the White House Counsel’s office and the State Department’s Harold Koh. In another story earlier this week on the Administration’s explanation to […]
A War Over War Powers?
By Jonathan H. Adler on June 15, 2011 6:13 pm in Executive Branch, Separation of Powers, War on Terror
GWU law professor Jonathan Turley has filed suit against the Obama Administration on behalf of several members of Congress, including Reps. Dennis Kucinich (D-OH) and Walter Jones (R-NC). The complaint alleges that President Obama acted unlawfully by going to war in Libya without Congressional authorization and seeks, among other things, an order that the military […]
George Mason Panel on the Legal Issues Raised by the Conflict in Libya
By Ilya Somin on April 4, 2011 11:28 pm in Executive Branch, Separation of Powers, War and Armed Conflict
This Thursday, I will be taking part in a panel on the legal issues raised by US intervention in the Libya, sponsored by the George Mason University International Law Society. The panel is entitled “Is There Any Law to Hold Us in Libya?” and will be held at George Mason University School of Law at […]
National Review Symposium on the Constitutionality of the Libya Intervention
By Ilya Somin on March 24, 2011 5:16 pm in Constitutional Law, Executive Branch, Separation of Powers, War and Armed Conflict
National Review has posted a symposium on the constitutionality of the Libya intervention. The symposium includes a large number of legal scholars and commentators, mostly conservative ones, as one would expect from a conservative publication. Interestingly, most of the participants reject the view (advanced by John Yoo and some others in the George W. Bush […]
Capitol Hill Panel on President Obama’s Decision Not to Defend DOMA
By Ilya Somin on March 15, 2011 10:05 pm in Constitutional Law, Constitutional Theory, Executive Branch, Gay Marriage
This Thursday, I will be taking part in a Federalist Society panel on President Obama’s decision not to defend DOMA in Court. Edward Whelan, President of the Ethics and Public Policy Center and prominent legal blogger for National Review, will be on the panel with me, and my colleague Neomi Rao will moderate. The panel […]
Precedent for Presidential Refusal to Defend Statutes the Administration Believes to be Unconstitutional
By Ilya Somin on March 1, 2011 11:39 pm in Constitutional Law, Constitutional Theory, Executive Branch, Gay Marriage
Last week, I defended President Obama’s decision not to defend the constitutionality of the Defense of Marriage Act, on the grounds that the administration has concluded that it is unconstitutional. Although I disagree with some of the administration’s specific legal arguments in this case, I think the president’s duty to defend the Constitution supersedes his […]
Do Presidents Have a Duty to Defend the Constitutionality of Laws they Believe to be Unconstitutional?
By Ilya Somin on February 23, 2011 11:45 pm in Constitutional Law, Constitutional Theory, DOMA, Executive Branch, Gay Marriage
The Obama Administration’s decision not to defend the constitutionality of the Defense of Marriage Act has inspired a great deal of criticism from commentators who believe that it is an unwise or illegitimate extension of executive power. The critics include Richard Epstein, Curt Levey, and our own Orin Kerr, among others. John Yoo argues that […]
More on DOMA
AG Holder’s memo explaining why Justice is declining to defend DOMA begins, “After careful consideration, including review of a recommendation from me, the President of the United States has made the determination that Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, i as applied to same-sex couples who are legally […]
Larry Tribe Caught Up in Post-Employment Restrictions in AEP Case
Lawrence Hurley at Greenwire (now up on the NY Times website) is reporting that the Justice Department asked that Professor Larry Tribe’s name be stricken from the brief he filed in American Electric Power v. Connecticut, 10-174, now pending before the Supreme Court, citing post-employment restrictions for former employees. In December, Tribe left DOJ after […]
Mukasey on Holder
Jennifer Rubin, author of the Washington Post‘s new “Right Turn” blog, interviews former Attorney General Michael Mukasey about his views of current AG Eric Holder in the Weekly Standard.