Archive | Executive Branch

Climate Chavistas?

There are plenty of reasons to oppose the cap-and-trade legislation working its way through Congress, but the claim that  a “nasty bureaucratic provision” will require “President Obama to act like Venezuelan strong man Hugo Chavez” is not one of them.

The provision at issue — Section 707 in the bill approved by the Senate Environment Committee — reads as follows:


Not later than July 1, 2015, and every 4 years thereafter—

(1) the President shall direct relevant Federal agencies to use existing statutory authority to take appropriate actions identified in the reports submitted under sections 705 and 706 and to address any shortfalls identified in such reports; and

(2) in the event that the National Academy of Sciences has concluded, in the most recent report submitted under section 706, that the United States will not achieve the necessary domestic greenhouse gas emission reductions, or that global actions will not maintain safe global average surface temperature and atmospheric greenhouse gas concentration thresholds, the President shall submit to Congress a plan identifying domestic and international actions that will achieve necessary additional greenhouse gas reductions, including any recommendations for legislative action.

This provision would clearly require the federal government to step up its efforts to reduce greenhouse gas emissions, and could well be triggered rather quickly if the bill is passed.  It’s also possible, as Senator David Vitter warns, that it could limit the award of carbon reduction offsets and permits under this and other regulatory programs.  (See also here.) But “strong man powers”?  Please.

The above provision grants no new powers to the federal government, let alone the President.  None.  Zero.  Zilch.  Rather, it directs the President to have agencies use “existing statutory authority” to ensure greater greenhouse gas emission reductions.  In other words, [...]

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He-Man on Executive Power

In one of my recent Constitutional Law classes, I had occasion to quote a much-neglected legal authority: He-Man. Like many presidents, especially in wartime, He-Man claims that he has “fabulous secret powers” and even summarizes his legal position with the immortal words “I have the power.” It’s the best short summary of the late Bush Administration’s theory of executive power that I have seen so far.


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Roundtable on Free Enterprise Fund v. PCAOB

The Vanderbilt Law Review‘s “En Banc” online supplement has published a roundtable on Free Enterprise Fund v. PCAOB, an important separation of powers case the Supreme Court will hear later this term.  The case concerns the constitutionality of the Public Company Accounting Oversight Board, an independent entity appointed by the Securities and Exchange Commission.  The roundtable features an impressive line up of constitutional and administrative law scholars: Peter Strauss, Richard Pildes, Stephen Calabresi and Christopher Yoo, Harold Bruff, and Gary Lawson.  Prior VC posts on this important case can be found here. [...]

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Italy Convicts Twenty-three CIA Agents in Absentia

Unfortunately, I don’t have time to say anything substantive about this now, but AP reports on the conviction of twenty-three CIA agents in absentia in Italy in a trial over an extraordinary rendition.  The AP story is unusually detailed for a wire story and bears reading.  I am in the middle of something and can’t stop to comment  on the substance.

However, I’ll make again the side observation that I have made before that this is the next step in what I have described here and on the OJ blog as “gaming Spain.”  It has been remarked by many observers how the effect of foreign prosecutions or the threat of foreign prosecutions is a backdoor way of punishing administration lawyers and others, such as these CIA agents, for various things that can’t be or are not pursued in American courts.

Less remarked, however, but I predict is the wave of the future, is how these kinds of backdoor prosecutions will, over time, turn out to track Democratic and Republican administrations differently.  Part of this is driven, in my view, simply by a a shared ideology among actors within the Obama administration with the ability to set the agenda on these matters – given the relatively little interest that Republican members of Congress show.  Your mileage may vary on how to interpret the administration’s polite regret and disappointment over the Italian verdicts, for example, and I suppose it is possible that the Bush administration would have shown no greater willingness to use real muscle to make its displeasure felt.

My personal view is that the administration, or at least key players on these matters, however, have concluded that it’s perfectly okay given that the final result is not actual jail for the US persons (I’m lumping together the Italian [...]

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Left/Right bloggers agree: Economy will be top issue in 2010. Disagree on WH war on Fox

This week’s National Journal poll of political bloggers asked “What will be the top two issues in the midterm elections?” Enormous majorities on both the Left and the Right picked “Economy/jobs” as the expected top issue. On the Left, “health care reform” came in second, far ahead of the third-place “deficit/big government.” The issues of Afghanistan and Cap & Trade were very far behind. The picks on the Right were similar, expect that “deficit/government” was the choice for 2d place, with health care in third.

I wrote: “All these will be big, but the ballooning deficit and the unemployment rate will probably be of interest to the largest number of voters. Afghanistan/cap-and-trade/health care will probably motivate lots of base activists from both sides.”

The second question was “On balance, does the White House’s decision to take on Fox News help or hurt President Obama?” Eighty-seven percent of the Left, but only 18% of the Right thought it helped. I was among them: “It turns out that all those folks with ‘dissent is patriotic’ bumper stickers who worried about the president trying to shut down criticism were just a little ahead of their time. Obama’s stature is diminished in the short run, but Fox’s reporting is so harmful to the WH (Van Jones, Anita Dunn, etc.) that they may have figured some short-term cost is worth it if they can convince the more pliant folks in the MSM not to follow up those stories.” [...]

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Can Obama accept the Nobel Prize without congressional consent?

Rep. Ginny Brown-Waite, Rep. Cliff Stearns, and Rep. Ron Paul say “no,” and have sent a letter to the President asking him to request congressional consent, which they expect would be speedily given. They point to the example of President Theodore Roosevelt, who created  a committee, including the Chief Justice, to hold Roosevelt’s Nobel Peace Prize money in trust until he left office. After leaving office, Roosevelt asked for congressional consent to disburse the money to particular charities.

Article I, § 9, clause 8, of the Constitution states that “no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”

When Roosevelt won the Peace Prize, there was apparently no controlling statute. Today there is: 5 USC § 7342 (titled “Receipt and disposition of foreign gifts and decorations”) sets out the conditions under which foreign gifts can be accepted without a separate action of Congress. The statute applies to an “employee,” which includes “the President and the Vice President.”

A “foreign government” includes ” any agent or representative of any such [foreign] unit or such organization, while acting as such.” Since the Nobel Peace Prize committee is, as the Representatives note, appointed by the Norwegian Storting (the legislature), it would seem to be within the scope of the statute.

A “gift”  is “a tangible or intangible present (other than a decoration) .” A “decoration” includes a ” medal, badge, insignia, emblem, or award.”

By the statute, Congress explicitly consents to employee receipt of gifts of  “minimal value,” which is “means a retail value in the United States at the time of acceptance of $100 or less.” The statute authorizes the Administrator of General Services [...]

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The Greg Craig Watch

The New York Times reports on the continuing speculation over whether White House Counsel Greg Craig is on the way out.

As President Obama’s top lawyer, Mr. Craig has been at the center of thorny decisions on closing the prison at Guantánamo Bay, Cuba, and revising interrogation and detention policies, problems that have bedeviled the new administration and generated fierce battles inside and outside the White House. And for months now, he has endured speculation in print and around the White House about whether he is on the way out.

Mr. Craig said he had no plans to leave, and White House officials said the president still had faith in him. But colleagues and Democrats close to the White House said they expected him to move on around the end of the year, and they have been talking about possible replacements. Whether Mr. Craig leaves or not, the discussion of his fate has grown so persistent and the situation so awkward that one supporter calls it “the Greg Craig watch.”

A large number of senior law-related positions in the Administration that remain open.  Having to search for another White House Counsel will hardly help. [...]

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Regulation on the Rise

The Washington Post reports on how the Obama Administration is increasing regulatory efforts on many fronts.  There’s no question Obama appointees are more enthusiastic regulators than their Bush counterparts (with the possible exception of those at Homeland Security), but it would be a mistake to place all the credit/blame for increased regulation on the Obama Administration.  In some cases, as with the CPSIA, Obama appointees are merely implementing regualtory statutes enacted, and signed into law, under President Bush. [...]

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Galston on McChrystal

William Galston, writing on TNR’s The Plank, argues Bruce Ackerman and others are wrong to suggest that General Stanley McChrystal’s public comments somehow threaten the principle of civilian control of the military.

Liberal pundits, Defense Secretary Robert Gates, and National Security Advisor James Jones are in agreement: General Stanley McChrystal, commander of U.S. and NATO forces in Afghanistan, was wrong to give public voice to his views about the best way forward in that beleaguered country. Yale law professor Bruce Ackerman accused McChrystal of “a plain violation of the principle of civilian control.” Washington Post columnist Eugene Robinson put it most bluntly: “The men with the stars on their shoulders … need to shut up and salute.” Some are even drawing parallels between McChrystal and Douglas MacArthur. All these critics are wrong.

The principle of civilian control means that once the competent civilian authorities have made a binding decision, military leaders are obligated to support it and carry it out. If they cannot in good conscience do so, they should resign. The principle does not mean that military leaders are barred from publicly expressing their best judgment as to the strategy and tactics best suited to the problem at hand before the civilian authorities have made their decision.

He notes further that the arguments for muzzling McChrystal are the same arguments used to justify the Bush Administration’s effort to silence General Eric Shinseki before the invasion of Iraq.  Further, insofar as McChrystal’s comments put pressure on the President — pressure to either deploy more troops or redefine the mission in Afghanistan — Galston believes it’s a good thing, as it limits the President’s ability to “fudge” the decision. [...]

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More Ackerman on Politicizing the Military

Bruce Ackerman’s weekend Washington Post article criticizing General Stanley McChrystal was not the first time he has raised concerns about the involvement of currently serving military leaders in political debates about national security policy.  In 2007, he wrote this article for the Financial Times criticizing comments by Major General Rick Lynch and President Bush’s use of General David Petraeus to deflect Congressional criticism of the Adminsitration’s policies in Iraq.  These incidents, Ackerman warned, were threats to the principle of civilian control of the military.

I still think Professor Ackerman is overstating his case.  I agree that it can be inappropriate for active military officers to criticize their superiors, particularly the commander-in-chief.  And it’s possible that McChrystal’s comments crossed that line (though my understanding is that his speech had been approved).  Remarks like those of Major General Lynch, had they been directed at the President (rather than a Senator), might even constitute insubordination.  But I am not convinced that either Lynch’s or McChrystal’s comments  “represent[ed] an assault on the principle of civilian control.”  It seems to me that we all benefit if public debate over military policy to be informed by the opinions and analyses of military leaders, and I would be more concerned about an overly restrictive policy, in which only the President and his closest advisors could hear the views of top military brass, than the opposite.

If the President sets a given policy goal, I think Congress and the public at large should know what military leaders think is necessary to achieve that goal.  So, for instance, if General McChrystal believes that current United States’ policy in Afghanistan would require particular measures — more troops, shifts in deployment, different rules of engagement, whatever — I think it’s a good thing if such information is public.  This makes it [...]

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Is McChrystal Another MacArthur?

Yale law professor Bruce Ackerman argues in the Washington Post that it was inappropriate for General Stanley McChrystal to announce his preferred Afghanistan strategy and publicly disagree with Vice President Joe Biden.  Such statements, Ackerman said, were “a plain violation of the principle of civilian control.”  The New America Foundation’s Michael Cohen makes a similar argument.

According to Ackerman,

As commanding general in Afghanistan, McChrystal has no business making such public pronouncements. Under law, he doesn’t have the right to attend the National Security Council as it decides our strategy. To the contrary, the Goldwater-Nichols Act of 1986 explicitly names the chairman of the Joint Chiefs of Staff as the National Security Council’s exclusive military adviser. If the president wanted McChrystal’s advice, he was perfectly free to ask him to accompany Adm. Mike Mullen, chairman of the Joint Chiefs, when the council held its first meeting on Afghanistan this week.

McChrystal’s “breach,” Ackerman argues, “should provoke a broader discussion of the meaning of civilian control in the 21st century.”

Ackerman’s essay raises some interesting issues, but I wonder if he’s making too much of McChrystal’s comments (as is Cohen).  There’s ample precedent for Cabinet Secretaries and other presidential appointees making policy statements in advance of a Presidential decision.  While the military is, and should, be different, I also seem to recall other instances in which it was widely known that military leaders disagreed with their civilian leadership, and yet no one saw any threat to the principle of civilian control or the President’s authority as commander-in-chief.  Presidents have removed military leaders over strategy and policy disagreements in the past, and no doubt will again, and not every general who disagrees with the President is another General MacArthur. [...]

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Wittes on Obama’s Detention Policy:

Benjamin Wittes is not happy with President Obama’s approach to detention and Guantanamo Bay.

President Obama’s decision not to go to Congress for help in establishing reasonable standards for the continued detention of Guantanamo detainees is a failure of leadership in the project of putting American law on a sound basis for a long-term confrontation with terrorism. It is bad for the country, for national security and for civil liberties. It represents a virtually wholesale adoption of the failed policies of his predecessor — who, with equal obtuseness, refused to root American detention practices in clear law approved by the legislature and similarly failed to learn from repeated Supreme Court rebukes to this unilateral approach. It violates Obama’s much-noted statement this spring that he would “work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.” And it delegates a profound and difficult policymaking exercise to the judiciary and, ultimately, to a single man on the Supreme Court.

The article’s called “Obama’s Dick Cheney Moment.”   I wonder who’s more upset with the comparison — Obama or Cheney? [...]

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Bloggers agree: Health bill likely to pass. Split on Obama foreign policy grade:

This week’s National Journal poll of political bloggers asked “What is the most likely outcome of President Obama’s health care reform initiative?” Ninety-three percent of the Left and 82 percent of the Right expected either “major” or “scaled back” legislation to be enacted in 2009. The Left was roughly split between major and scaled back. I was part of the only 12% on the Right who expect some major. I wrote: “‘Scaled back’ in the sense of no public option. The legislation will still impose huge, and mostly harmful, changes on American health care.”

The second question asked for a grade on President Obama’s foreign policy so far. The Left gave him a B, while the Right awarded a D-.  I voted for D, and explained: “From Poland to Israel to Iran to Honduras, the President has made it clear that it is safer to be America’s enemy than its friend. His crackdown on the pro-democracy government in Honduras for obeying the Honduran Constitution, and his active support for Zelaya, who is trying to become another Castro/Chavez, is despicable. Obama is much more popular than Bush among Belgians and many other Western Europeans, but Obama has been unable to translate that popularity into any results for American diplomacy.”

[Note to commenters: It appears to me that comments have to be specifically approved before they become visible. There are several comments which I have “approved”, but which are not displaying. I don’t know what the problem is. Presumably we eventually figure out how to use WordPress. ] [...]

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