In Which I Attempt to Debate the Law with Marty Lederman

Senator Sheldon Whitehouse managed to get 3 bits of legal counsel from the OLC to the President declassified and described them on the floor of the Senate. He denounced the Bush administration for attempting to make Bush an absolute monarch.

Marty Lederman suggests that the Bush administration declassified those bits and not others, because they are not extreme.

The Administration has now permitted Whitehouse to talk about three aspects of the OLC Opinions, and that's what he did yesterday. He expressed incredulity about all three. But there's a reason the Administration gave him the green light on those three matters -- because the OLC statements in question are boilerplate, and fairly uncontroversial (with one possible, important exception, noted below).

A very plausible hypothesis. Also, even if he is right, Whitehouse's strategy might be a good one. His fellow Senators know that the Bush administration has made an extreme power grab. They may be reluctant to talk about leaks and rumors. However, they can interpret ambiguous official statements in the most alarming way, because they know, from other sources, what has been happening.

I like to blog recklessly, so I will argue that Lederman is wrong and that the "boilerplate" is, in fact, shockingly extreme. The first case

1. "The 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."

Lederman notes that the Clinton administration claimed some authority to challenge what it perceived to be congressional intrusions on Presidential prerogatives. However, the OLC quote as written, seems to me to imply "the President has absolute power unlimited by any law or statue whatsoever and enforced against terror" (to modernize Lenin for the GWOT). The reference to Article II doesn't limit the claim at all. It is equivalent to "The Presidentcan determine whether an action is ... lawful." That is "The President can over rule any law or the Constitution". What stronger claim could possibly be made ?

In particular, the key word is "determine". The OLC did not say "issue preliminary guidance for the executive branch which is valid until the matter is decided by the normal constitutional process" or "issue preliminary guidance for the executive branch which is valid until the matter is decided by the courts." I can't think of a stronger or more final word than "determine".

In contrast, the Clinton era opinions quoted by Lederman explicitly recognise the supreme court's authority to adjudicate disputes between the legislature and the executive over the separation of powers. Lederman's argument relies on an alleged fact

Senator Whitehouse has not (yet) quoted anything from the OLC opinions suggesting that President Bush would allow his own views to trump those of the Court, or that he would, for only the second time in our nation's history, actually disobey a judgment of the courts if he disagreed with its constitutional rationale. (As far as we know, notwithstanding the broad views of executive power in this Administration, they have not asserted any power to disregard judicial orders.)

First, it seems to me that the plain meaning of the quoted passage states that the President may, whenever he chooses, allow his own views to trump those of the Court. Second, even if Bush has not yet chosen to do so, this does not mean that he doesn't see himself as an absolute monarch. Augustus pretended to be a servant of the Republic. Finally, as Lederman notes, there is no way we can tell if the Bush administration is or is not disobeying a judgment of the courts. They didn't say that they were ignoring FISA. In fact, Bush explicitly said the opposite. The fact that they haven't been caught yet, doesn't mean that they are innocent.

Certainly, they ignore precedents. After the court found that the detention with no trial whatsoever of Hamdi was unconstitutional, they continued to hold Padilla. The fact that the Supreme Court refused to hear Padilla's case until it passed through what the Supreme Court found to be the proper trial and appellate court was enough for a US citizen to be kept in prison without trial or charges for months.

As the Courts can only decide specific cases, if the administration obeys only specific orders, the courts are powerless to protect us. What if, say, the Miranda ruling had been applied only to Miranda ?

Ignoring the obvious implication of the Court's decision may not be contempt of court, but it is enough to destroy our former constitutional order which may or may not be re-established on January 20 2009.