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Balkin and Posner on Article II -- Part II

By Jack M. Balkin

Jack and Eric Posner have a new Bloggingheads episode up, dealing principally with Bush's aggrandizements of executive power. Characteristically excellent and provocative, although supiciously truncated at the end. . .

I have some minor quibbles, however:

Jack says at one point that all Presidents since Nixon have claimed that the War Powers Resolution is unconstitutional. To the extent Jack is referring to the principal provision of the WPR, prohibiting the President from engaging in military hostilities for more than 90 days without congressional authorization, the notion that Presidents have uniformly condemned its constitutionality is often asserted, but that don't make it true. The statute is plainly constitutional, in my humble opinion; but more to the point, it's simply not the case that every President has claimed it's unconstitutional. Nixon did so before the law was enacted; Reagan suggested it at one point; and John Yoo (Bush's surrogate, presumably) stated it in his September 25, 2001 memo. But that's it. The Carter Administration, for instance, specifically concluded that it was constitutional, and the Clinton Administration carefully avoided saying otherwise (going to great trouble, for instance, to try to argue that the WPR was satisfied in the case of Kosovo).

Eric suggests at another point that the Bush argument about preclusive presidential power to ignore statutes is one that Presidents have long embraced, and that it was suggested in AG Robert Jackson's opinion justifying the trade to Britain of destroyers for bases. That's not true, either. (Nor, in my view, was Jackson's statutory analysis quite as absurd or indefensible as Eric suggests -- but that's a very arguable point.)

Finally, Eric (and, to a lesser extent, Jack) suggests that Bush could have obtained from Congress almost all the authority he has exercised, even if he had never relied on the Article II override theory, and that therefore our complaints on Balkinization about Bush's failure to abide by the law are somewhat academic, abstract concerns, with minimal substantive implications. Jack provides some excellent reasons why we should be concerned even if Eric were correct that Bush could have gotten everything he asked for. But I also think it's a mistake to assume that Bush would have gotten everything he asked for (even in the wake of September 11th, for instance, the idea of amending FISA to authorize the NSA's domestic surveillance was a nonstarter in Congress -- Bush has only succeeded on that score more recently because he broke the law and established a new baseline of what NSA was able to surveille), and, more broadly, I think David Addington is correct that the Executive's more aggressive practice of asserting a preclusive Article II power to ignore statutes and treaties does, over time, have a substantial substantive impact.

More detail on all of these points in Part II of my recent article with David Barron, which will be published in the next couple of weeks. (Part I can be found here.)

Full post as published by Balkinization on February 08, 2008 (boomark / email).