AALS Mid-Year Meeting: Executive Power:

This morning's plenary panel is on executive power. Moderated by conference chair Mark Tushnet, it features the line-up of Kathleen Clark (WashU), Joseph Margulies (Northwestern), Sai Prakash (USD), and Adrian Vermeule (Harvard). Tushnet opens with the observation that the law of executive power seems to "come in waves." There was "Nixon Law" (impeachment, exec privilege, war powers), then "Clinton Law" (impeachment, privilege, and immunity), and now "Bush Law" (war powers, secrecy).

Kathleen Clark addressed "Accountability Mechanisms and National Security Secrecy." In short, her claim is that assertions of national security secrecy undermine political accountability mechanisms within the separation of powers. From this perspective, secrecy not only serves to advance executive functions, but also to insulate the executive branch from oversight by other branches and the public at large.

Clark provided a useful typology of accountability mechanisms based upon how they were created and where they are situated, ranging from those that are wholly internal to the executive branch (such as the Office of Legal Counsel opinions, the Office of Professional Responsibility, etc.), Congressional accountability mechanisms (oversight hearings, legislative protection for whistleblowers etc.), judicial accountability mechanisms (Bivens actions, etc.), and those that are external to the government (media, elections, etc.). In each of these cases, Clark observed, assertions of secrecy can undermine, if not wholly disarm, the accountability mechanisms.

Clark's presentation highlighted an interesting tension between secrecy and accountability. Without question, secrecy in national security and other matters is sometimes essential (though downplayed by clark). There are some things governments must do under cover. Yet Clark is certainly correct when actions (and their justifications) are kept secret, even formal accountability mechanisms may cease to function. Striking the right balance is particularly difficult. To focus on an example Clark used as a case study -- NSA surveillance -- some degree of secrecy is necessary to ensure the effectiveness of certain types of surveillance activities. At the same time, the high degree of secrecy about this particular program made it particularly difficult for Congress (let alone the public) to ensure that Executive Branch was complying with relevant statutory and constitutional constraints. Even if one believes that the Bush Administration's surveillance initiatives were necessary for national security, allowing the executive branch to initiate and engage in such activities in virtually complete secrecy reduces the likelihood that such activities will be conducted in a responsible fashion and deactivates the political checks that ultimately constrain overbroad assertions of executive power.

Sai Prakash spoke on the theory of the unitary executive in the Bush Adminsitration. Where many argue the Bush Administration has been too aggressive in asserting the theory of the unitary executive, Prakash's view is that the Administration has paid "too little" attention to the theory of the unitary executive. This theory, Prakash hastened to add, has "nothing to do" with many the Bush Administration's assertions of executive power. As he explained, the theory says little if anything about war powers, foreign affairs or the executive's ability to disregard congressional enactments. Rather, the theory of the unitary executive is almost exclusively concerned with "law execution." In other words, it is about the executive branch as a unified whole under the control of the President, and says little about the scope of the executive power or even the executive branch's ability to contravene Congressional command.

In practice, Prakash argued, much of what occurs within the executive branch occurs independent of meaningful Presidential oversight. In some instances we actually have "multiple, plural executive counsels," rather than single chief executive because of the existence of independent agencies, such as the FCC and SEC, that are able to operate without executive oversight. As a consequence, the President does not "take care" that the laws within these agencies' control are executed. For those concerned about a "unitary executive," this is of greater concern than whether the executive has the authority to act unilaterally with regard to national security or foreign affairs. (Perhaps, as Clark suggested in comments, the Bush Administration has sought to follow a "unilateral executive" model, rather than a "unitary executive" model.)

Joseph Margulies discussed the Bush administration's detention policies and their relation to the architecture of executive power. Margulies argued that the Bush Administration's policies on detention are largely unchanged from 2001 and 2002, despite extensive criticism and a (near) consensus that its policies are wrong-headed if not also illegal. One aim of Margulies' talk was to explore why the policies are so resistant to change if they lack legitimacy or support.

Margulies suggested that criticism of the Bush Administration's detention policies is universal, but I think he overstates his case. There is no question that academic criticism of the Administration's detention policies is (almost) universal. A similar consensus appears to exist abroad (at least in public). Some aspects of the Administration's policies have also been challenged from within the executive branch and by the courts, including the Supreme Court. Yet on the political right there remains substantial support for the executive branch's unilateral authority to detain enemy combatants as unlawful combatants and military adversaries. Many individuals, within the administration and without, believe that such measures are necessary for the security of the nation, and must be pursued even in the face of substantial opposition.

Margulies explanation for the present situation is that there is a dominant cultural and political narrative that existing policies are "flawed" and should be criticized. This makes it necessary for political elites to disclaim existing policies. Yet there is relatively little public concern for detention policies. That is, the average voter is far more concerned about other issues, so the political consequences of maintaining existing policies are virtually nonexistent. So political elites can condemn existing policies, but need not do anything to change them. One implication of this, Margulies suggests, is that it can be particularly difficult to control or discipline unpopular exertions of executive power absent electoral change.

Adrian Vermeule sought to look forward to the next administration, and consider how a President McCain or Obama will approach executive power. Drawing on theoretical and empirical research in the political science literature, Vermeule noting the prevalence and importance of "cross-over policy-making" -- the tendency for left-wing presidents to supply right-wing policies and vice-versa. As explained by Vermeule, there is a tendency for Presidents to successfully advance policies that appear contrary to their ideological orientation. One reason such efforts are successful is because voters, lacking information, find executive claims to be more credible when they are contrary to the executive's stated ideological preference. So, for instance, the public is more suspicious of hawkish policies from a hawkish president than from a dovish president, and vice-versa. This is self-limiting, as a right-wing president who moved too far to the left will lose his reputation as a"right-wing" president, but is nonetheless significant.

What does this mean for the next Administration? Perhaps, Vermeule suggested, this means that a President Obama would "engage in some symbolic civil-libertarian policies" on high-profile issues, but could also maintain or expand some Bush Administration national security and counterterror policies more successfully than a President McCain. Just as "only Nixon could go to China," only a President Obama could escalate existing policies, and perhaps only a President McCain could withdraw from Iraq or negotiate with Iran. This asymmetry in political constraints means (in technical terms) that the mode and the mean of presidential policies are likely to diverge. In lay terms, while the majority of a President Obama's policies are likely to be liberal, his ability to advance very liberal policies is truncated; he has more room to move to the right than to the left. Consider the Bush Administration: While definitely advancing "right-wing" policies on most issues, there are key areas in which the Bush Administration has moved farther to the "left" than would have a Democratic President (e.g. No Child Left Behind, Medicare Drug Benefit, federal spending). Looking forward, this means that on a handful of issues, it is likely that Obama could advance quite right-wing policies. The difficulty, of course, is that it can be difficult to know where a given President is likely to advance policies contrary to his ideological orientation.