Tuesday, June 21, 2011

Towards an unchecked executive

When Mr. Obama first announced American military involvement in Libya, he notified Congress within 48 hours, as prescribed by the War Powers Act. This initiated a 60-day period, during which he was required to obtain approval from Congress; if he failed to do so, the act gave him at most 30 days to halt all “hostilities.”

Last Sunday was the 90th day of bombing in Libya, but Mr. Obama — armed with dubious legal opinions — is refusing to stop America’s military engagement there. His White House counsel, Robert F. Bauer, has declared that, despite the War Powers Act, the president can continue the Libya campaign indefinitely without legislative support. This conclusion lacks a solid legal foundation. And by adopting it, the White House has shattered the traditional legal process the executive branch has developed to sustain the rule of law over the past 75 years.

Since the 1930s, it has been the job of an elite office in the Justice Department — the Office of Legal Counsel — to serve as the authoritative voice on matters of legal interpretation. ...

But not this time. After Caroline D. Krass, acting head of the Office of Legal Counsel, told the president that he had to abide by the act’s requirements, the White House counsel decided to pre-empt the Justice Department’s traditional role. ...

This pre-emptive move was not unprecedented. During George W. Bush’s administration, shortly after 9/11, the White House counsel, Alberto R. Gonzales, led an ad hoc war council that included State and Defense Department officials. It was in this hyper-politicized setting that John Yoo, representing the Office of Legal Counsel, prepared his notorious “torture memos” for President Bush’s approval. ...

Although Mr. Yoo’s memos made a mockery of the applicable law, they at least had the approval of the Office of Legal Counsel. In contrast, Mr. Obama’s decision to disregard that office’s opinion and embrace the White House counsel’s view is undermining a key legal check on arbitrary presidential power.

This is a Beltway detail of major significance. Unlike the head of the Office of Legal Counsel, the White House counsel is not confirmed by the Senate — which means that the president can appoint whomever he likes.
--Yale constitutional law professor Bruce Ackerman, NYT, on doing whatever the heck you want as President