August 24, 2006
Presidential Powers and Statutory Interpretation
A provocative article by Professor Neil Kinkopf entitled, The Statutory Commander in Chief, was just published at 81 Indiana L.J. 1169 (Fall 2006) as part of a symposium on "War, Terrorism, and Torture: Limits on Presidential Power in the 21st Century." While many of the articles in the symposium looked at the issue from the perspective of constitutional law, Professor Kinkopf examined, quite thoughtfully, the role of statutory interpretation. A snippet:
Whatever purchase the case for deference might have in the context of judicial interpretation, it has little relevance to internal executive branch interpretation. Legal interpretation is not an abstract exercise; it typically involves the construction of one or more provisions of law in the context of a (more or less) specific set of facts. As with judicial interpretation, it is appropriate for executive branch lawyers to defer to the factual findings of others, including the President, within the executive branch. With respect to matters of law, however, it would be nonsensical to claim that the executive branch should defer to its own interpretation of the law.It's an interesting piece. I couldn't find the article on line, but it is on Westlaw and, I assume, Lexis.
Those who urge deference seem to be advocating judicial deference. But the distinction between executive branch interpretation and judicial interpretation is not made explicit, and this can contribute to an important problem. It may lead executive branch lawyers to view their role as making whatever argument may plausibly be available to support the assertion of power that the President wishes to make. This is one conception of how OLC operated in rendering the Torture Memo. The competing conception is that executive branch lawyers--particularly when they act as ex ante counselors rather than ex post litigators--should follow their best understanding of what the law demands and forbids. Where the executive branch follows the latter model, the case for deference to its legal interpretations is at least coherent. Where it follows the former model, claims of deference not only are incoherent--there is no actual legal determination for the judiciary to defer to--the application of deference would undermine the rule of law because the executive branch would no longer be bound by legal constraints, only by the limits of its lawyers' imaginations.
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