* forthcoming scholarship
Constitutional Alarmism (Reviewing Bruce Ackerman, the Decline and Fall of the American Republic (2010))
Trevor W. Morrison
Columbia University – Law School
This is a review essay of Bruce Ackerman’s new book, The Decline and Fall of the American Republic. The book argues that the modern presidency poses a new and dire threat to our constitutional traditions. One of its core claims is that legal interpretation in the executive branch — especially as practiced by offices like the White House Counsel’s Office and the Justice Department’s Office of Legal Counsel (OLC) — is hopelessly compromised and cannot possibly be relied upon to foster principled, good faith adherence to legal constraints. Executive branch lawyers, Ackerman contends, inevitably say yes to whatever the President wants to do, even if it means defending the legally indefensible.
This Review shows that Ackerman’s account of law and legal interpretation in the executive branch — "executive constitutionalism," in Ackerman’s terminology — is simply wrong. Although the recent experience of the "torture memos" shows that offices like OLC can sometimes go badly astray, as a general matter OLC has a long history of providing principled, independent legal analysis. There is a similarly long history of the White House and other executive components binding themselves to OLC’s opinions. These trends continue. (In particular, Ackerman’s claim that the White House Counsel’s Office has recently been usurping OLC’s role is inaccurate.) To be sure, neither OLC nor any other player in executive constitutionalism is perfect, and there is certainly room to improve. Among other things, better disclosure of executive branch legal interpretation could help encourage fidelity to the traditions of independence and professional integrity for which offices like OLC are known.
Ackerman, however, is insufficiently attentive to the institutional details of how executive constitutionalism actually works, which leads him to miss the important but subtle ways in which it entails real constraint. As a result, the book’s broadside attack on executive branch legal interpretation is an exercise in unwarranted alarmism. And given its mistakes of description, the book’s prescriptions for reform — including its call to replace OLC with a quasi-court he dubs the "Supreme Executive Tribunal" — are not only troubling on their own terms but entirely unwarranted.
ROBERT REINSTEIN, Temple University – James E. Beasley School of Law
The dramatic unilateral decisions of the Washington administration, particularly during the Neutrality Crisis of 1792-1794, have been the bases of expansive theories of plenary executive powers over foreign affairs. This paper presents an original historical and jurisprudential account of the Neutrality Crisis and draws three principal conclusions:
First, the source of the Washington administration’s constitutional authority was the duty of the Executive, under the Take Care Clause, to obey the law of nations. This source of authority was (1) repeatedly asserted in the administration’s public declarations; (2) the basis of its private deliberations; (3) consistent with the jurisprudence of the founding generation; and (4) explanatory of the actions that were taken (and not taken) by the administration. No other theory of executive power satisfies these criteria.
Historians and legal scholars have consistently rejected this thesis, claiming that Washington was not executing any settled doctrine of international law but was making discretionary policy decisions. This paper shows that the critics erred in projecting onto the founding generation their own ideas of legal positivism as the foundation of international law, and in dismissing the extraordinary influence of Continental publicists such as Vattel, who were the administration’s principal authorities on the law of nations.
Second, this thesis has important implications regarding executive power and international law. Washington’s actions were based on the principle that the Executive has the duty to comply with the obligations of the law of nations. To the extent that international law remains part of national law, the actions of the Washington administration provide an important precedent for the duty of the Executive to obey the constraints of international law.
Third, this paper sheds light on the limits of originalism as a constitutional methodology. One of the profound changes that have occurred in the United States is that the founders’ way of thinking about law can be incompatible with our own. The foreign policy decisions of the Washington administration reflected B indeed, in the view of the administration, were compelled by B a natural law jurisprudence of the law of nations that was a product of its time. This has little relevance to the general scope of modern presidential power to determine and conduct the nation’s foreign affairs. Modern theories of expansive executive powers must find bases other than in the decisions of our first President.
The Constitution Project
[From the introduction] President Obama has yet to explain to Congress and the American people how he received authority from the United Nations Security Council to initiate military operations against Libya. On March 21, he informed Congress that "at my direction, U.S. military forces commenced operations to assist an international effort authorized by the United Nations (U.N.) Security Council." An April 1 memo by the Office of Legal Counsel states that Security Council Resolution 1973 "imposed a no-fly zone and authorized the use of military force to protect civilians." Because Libya did not comply with the resolution, the OLC concluded that President Obama was justified in using military force against Libya to maintain "the credibility of the United Nations Security Council and the effectiveness of its actions to promote international peace and security."
RICHARD SCHRAGGER, University of Virginia School of Law
This Essay, written for a symposium commemorating the twentieth anniversary of Employment Division v. Smith, examines the politics of free exercise as it has changed since Smith was decided. It focuses on two historical developments that have and will continue to shape the doctrine of free exercise going forward. The first development is the gay and lesbian civil rights movement and its pursuit of marriage equality in the courts. The second development is the "war on terror" that followed the attacks of 9/11 and the nation’s subsequent cultural and political response to fundamentalist Islam. This Essay describes how these historical developments are putting doctrinal and legislative pressure on the post-Smith free exercise equilibrium. The Essay also speculates about the continuing political and legal viability of Smith in light of these pressures.