Sunday, January 11, 2009

The Sunday Reader: (Obama's OLC Pick) Johnsen on the Post-Bush Constitution

Professor Dawn Johnsen (Indiana U. and President-Elect Obama's pick to head the Office of Legal Counsel) posted her characteristically excellent piece What's a President to Do? Interpreting the Constitution in the Wake of Bush Administration Abuses on ssrn; it's also in the Boston U. L. Rev.  This is a thoughtful article on how the new chief executive should respond to constitutional overreaching by the present administration.  (For a related piece, see Johnsen's American Constitution Society Issue Brief on the topic.)  Johnsen's answer is balanced, well considered, and appropriately restrained; the piece reminds us--if there were any doubt--why she's Obama's choice to lead the OLC.  This is an excellent read in its own right; it's an outright must-read considering Johnsen's role on the Obama team.

Johnsen argues that the Bush administration excesses ought not drive us to fundamentally change our understanding of executive authority--despite what may be a very strong impulse to do so.  Instead we should look to safeguards and checks both within and outside the executive branch to avoid future constitutional abuses, while nevertheless protecting the legitimate authority of the executive branch.

Johnsen starts by reviewing some of the more widely examined Bush administration excesses and reactions to those excesses in order to illustrate both problems: the administration's constitutional overreaching; and opponents' reactions that, in their (understandable) tenacity, themselves go too far and impinge upon legitimate executive authority.

She offers several examples; here's a particularly good one, if only because it seems so typical in today's debates:

The risk of such conflation can be seen, for example, in a December 2007 remark by Senator Sheldon Whitehouse.  Whitehouse attacked the Bush administration for asserting the position that "[t]he President, exercising his constitutional authority under Article II, can determine whether an action is a lawful exercise of the President's authority under Article II."  Senator Whitehouse has earned commendation for his forceful and able critiques of the Bush administration abuses.  Here, too, his concern is warranted, but he seems to misplace his objections.  Presidents not only can, but they must determine whether their actions are lawful (subject of course, to appropriate judicial review).  Moreover, in many circumstances, Presidents may develop, declare, and act upon distinctive, principled constitutional views that do not track those of the Supreme Court or Congress.  The problem lies not with the fact that President Bush, with the help of his lawyers, assessed the scope of his constitutional authority before acting, but with the flawed content of his legal detemrinations and the ways in which he secretly acted upon them.  . . .

Johnsen goes on to argue that the Bush administration is itself largely responsible for such "misplaced" attacks because of its excessive secrecy.

Johnsen then explores the President's interpretive authority and nonenforcement authority and places both in historical context.  She argues that the President ought to have interpretive authority: "The better question, therefore, is not whether, but how the President should participate in the determination of constitutional meaning."  And she argues for a "strong, but not irrebutable presumption" in favor of enforcing even those statutes that the executive objects to on constitutional grounds: "I conclude that the Constitution is best interpreted as creating a strong but not irrebutable presumption in favor of enforcement of constitutionally objectionable statutes."  And if you're looking for specifics on positions of Obama's OLC pick, look here: "The Bush administration's 'unitary executive' and Commander-in-Chief theories, in my view, are clearly wrong and threaten both the constitutionally prescribed balance of powers and individual rights."  (This selection gives us more insight into Obama's positions on these issues; see my previous post here.)

Johnson wraps up by arguing for executive checks (presumably including the OLC) and extra-executive checks on Article II powers, but also for defending legitimate Article II powers.  She offers no specifics on these points outside of outlining her position in contradistinction to Bush administration practices.  But that is certainly enough for now: The new administration will have its hands full simply undoing the Bush administration abuses. 

Johnsen's article reminds me once again how thoughtful she is on executive power and the OLC's role.  Read it as good scholarship; read it as thoughtful critique; or read it as a roadmap for the OLC in the Obama administration.  Whatever your interest: Just read it.

SDS

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