8 Comments

1. 1 Kaedon 20 Apr
   Richard DolanTo some extent, yes, the ultimate check on the Executive is impeachment, but the reality is that it is really political. If the Executive really goes too far, both of the other two branches have the wherewithall to bring it to heel. For example, imagine the present Administration faced with a Congress controlled by a strong majority of the opposition party. You would face continuing hearings on every possible transgression, with laws being passed to override. Indeed, it has been suggested by the WSJ that we can expect some of that, esp. from Rep. Conyers, should the Democrats retake the House this coming election. Right now, Congress looks weak in comparison to the Executive, but that is, IMHO, primarily because both are controlled by the same party, with most of its members there being in basic agreement with the President. The problem with the Judiciary is that they have put themselves above this, above political pressure, and have been able to maintain this through lifetime (or close to that) appointments. They can ignore the political will of the country, state, etc. because of this. That would be fine if they truly were above politics, which is what I think was intended. But they aren't - as evidenced by some of the examples I gave earlier. So what we seem to have now are political partisans immune to political pressure operating in many cases for partisan reasons. And thanks to Madison v. Marbury, etc., they have put themselves in an unapproachable position. Their word is the last word, period.
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3. 3 Doc 06 Apr
   in the symposium. Cass Sunstein's essay, for example, focuses on Chevron v. NRDC (holding that courts must defer to agency interpretations of law in certain circumstances), which he calls the counter-Marbury for the executive branch. That's an interesting way to think about Chevron, and I've not heard it put quite that way before. Harold Koh's piece is about Hamdan, and the role of checks and balances in today's world. That sounds more like a "standard issue" kind of thing. John Yoo's co-authored piece is concerned with the war powers, and asks which allocation of war powers between the President and Congress would be serve the interests of the US. Yoo is less interested in constitutional text than he is in a "what works best" kind of institutional analysis.These and the other authors participating in the symposium are mostly familiar public personas, and to varying degrees have taken positions of lots of politically charged issues. Thus it is easy to read into their arguments a political angle. But you could probably say the same about anyone writing on these general issues, and politics in the more partisan sense seems far removed from what's going on here. The "fundamentally lawless" idea that Ann chose to caption this post is rooted in the unique position of the Executive to carry out policy by acting, often forcefully, to bring about particular outcomes. Neither the Legislature nor the Judiciary can do that. If the law making or law declaring power is added to the Executive's powers, there isn't much left to act as a check on the Executive. The Executive isn't even under the same constraint as the Judiciary to explain publicly and in a reasoned way why the Executive is taken certain actions, or adopting particular views about what the law is or means. As far as I can tell from a quick skim, it's the combination of those factors that the phrase "fundamentally lawless" is intended to capture. But at the same time, as the squib about Sunstein's article shows, the Executive today is involved heavily, and by all accounts appropriately, in both the law making and law declaring functions. One commenter thinks that it is senseless to compare the Presidency to a Mayor in these terms, just because both qualify as "executives." Perhaps so, but it all turns on the details of the relationship between each "executive" one is talking about, and whatever other institutional checks on its power that the "executive" at issue has to deal with. It's also important to know whether the focus is on de jure checks or includes de facto checks as well. There are plently of the latter in the Federal gov't, as every President (probably every executive, in and out of gov't) discovers. As far as I can see, there is nothing about that inquiry that suggests a "certain lack of seriousness, or worse ... a smear job on the President." Bruce Hayden suggests that the ultimate check on the Executive's power remains the power to impeach. But that is fundamentally a political, not a legal, check. This symposium is concerned with the latter. Nor is there ever a principled case for impeachment if the Executive is exercising its rightful authority in the law making or law declaring areas. So what is the Executive's proper role in the law making and law declaring areas? I don't know whether these articles will be particularly enlightening, and I'm not interested enough to get the issue and read the complete articles (at the moment, only a precis is available for each article on the web). But it doesn't sound anything like a political hatch job. Instead, it's a bunch of law professors noodling about some interesting issues, in ways that will probably eventually filter very generally into the larger political arguments of the day. If that's your thing, this symposium is probably not a bad source. Or you can wait and follow along as it all gets ground down and digested at Volokh and places like that.
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6. 6 Lorin 28 Mar
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7. 7 Jacoby 27 Mar
   Ah, i see. Well that's not too tircky at all!"
8. 8 Amine 27 Mar
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