Monday, March 25, 2019
Remarks delivered at a book talk organized by the Harvard Law School Library, in response to a talk by Prof. Claire Finkelstein based on “Sovereignty and the New Executive Authority” (Finkelstein and Skerker, eds. 2019).
The Irrelevance of the “Rule of Law” after 9/11
In light of the many issues raised by the book and by Prof. Finkelstein’s talk, I can’t hope in ten or twelve minutes to do more than make one substantial point, a point that aims to kill as much fun as possible. I suggest that there has been no significant issue about the relationship between the executive and the rule of law at least since 9/11. Everything that has occurred, every controversy surrounding presidential or executive authority, has been entirely internal to the ordinary practice of legalism and has involved applications of ordinary legal standards and arguments that are theoretically banal, however great their practical importance — with one arguable exception I will mention at the end.
Overall, when people think they are raising issues about the rule of law, they are usually raising issues about the sweeping delegations of statutory authority to the executive, especially in matters of national security and immigration, that have occurred during and after World War II and after 9/11. Complaints about delegation can be circuitously phrased as complaints about some enhanced or “thick” version of the rule of law, which attempts to fold into itself human rights, liberty, and all other good things. But delegation remains the central issue, so very little is gained by talking this way, while confusion is introduced about the real sources of executive authority.
Let me begin with a legal analogy, based on a reasonably obscure Supreme Court case from 1994 called Dalton v. Specter, involving the Defense Base Closure and Realignment Act of 1990. The suit attempted to enjoin the Secretary of Defense from carrying out a presidential order, under the Act, to close the Philadelphia Naval Shipyard. The Court, through Chief Justice Rehnquist, held that the claims were not reviewable. The President’s order could not be reviewed under the Administrative Procedure Act for conformity to statute because, the Court had previously held in Franklin v. Massachusetts, the President did not count as an “agency” under that Act.
To circumvent this barrier, the litigants attempted, and the Court of Appeals endorsed, an ingenious theory: any claim that the President has exceeded his statutory authority is always, and necessarily, a constitutional claim, which was reviewable notwithstanding Franklin. After all, the theory ran, if the President lacks statutory authority to do X, and supposing there is no independent grant of constitutional authority to do X, then under the majority opinion in Youngstown Sheet & Tube v. Sawyer, the President would violate the Constitution by doing X.
The Court would have none of it; the Chief observed that such a gambit would eviscerate the ordinary distinction between executive action that is unconstitutional and executive action that, purportedly resting on statutory authority, merely turns out to be ultra vires, in excess of that authority — as in every ordinary administrative law case. And, the Court added, the rule of law is just as fully vindicated when the courts hold that executive action is committed to executive discretion by the law itself, as it is when courts review and overturn executive action.
Dalton v. Specter captures, by analogy, a crucial point about executive power and the rule of law: when the executive appeals to ordinary positive legal authority, such as a statute, there is no threat to the rule of law and no interesting issue of grand theory, even if the executive’s appeal is mistaken, in our judgment or even in the judgment of a court, and even if the executive has acted arbitrarily or abused its legal discretion. After all, we don’t think that the “rule of law” is implicated in any unusual or illuminating sense whenever the DC Circuit decides that an administrative agency has transgressed the bounds of its statutory authority by offering an unreasonable reading of the law, or even acted “arbitrarily and capriciously,” as happens approximately once per week. That sort of high-level talk seems unnecessary; we can just do administrative law from within.
Let me now turn to the Presidency where the same points apply, mutatis mutandis, as I have argued (along lines somewhat similar to those that Jack Goldsmith argued independently). The beginning of wisdom here - I use my categories, not Goldsmith’s — is to distinguish between what Commonwealth lawyers call “extraordinary prerogative” and “ordinary prerogative.” Ordinary prerogative is internal to the legal order; it includes the prerogative powers of the Crown that are themselves granted — at least arguably — by ordinary legal sources and authorities, common law or statute or, in our system, granted to the President by the written Constitution itself. Extraordinary prerogative arises when the executive genuinely acts outside the legal order or contrary to it (usually in the name of saving the legal order in some higher sense). Note that ordinary prerogative includes both cases in the so-called Category 1 of Justice Jackson’s Youngstown concurrence, where the executive acts under expressly delegated statutory authority, and Category 3 cases, where the executive claims that positive constitutional powers trump contrary statutes.
My thesis, then, is that approximately all assertions of presidential and executive authority since 9/11 have involved ordinary prerogative — usually on the basis of statute (Category 1), very rarely on the basis of constitutional authority said to override statute (Category 3, as in the bipartisan position of Presidents Bush and Obama that led to the second Jerusalem Passport case), but always within the enacted legal order, at whatever level.
To be sure, our history has seen genuine assertions of extraordinary prerogative on the part of Presidents, such as some but not all of Lincoln’s actions at the beginning of the Civil War, or FDR’s rather chilling warning to his Attorney General (intended to be passed on to the courts?) that he would ignore a judicial writ of habeas corpus in favor of Nazi saboteurs, in the events that lead up to Ex Parte Quirin. Since approximately World War II, however — and certainly since 9/11 — there has been little to no need for such things and precious few examples, in large part because Congress has delegated such sweeping powers to the executive, under statutes both broad and vague or ambiguous. And the courts have upheld those delegations even when the delegation itself has involved so-called “emergency” powers, as when the Court upheld the Emergency Price Control Act of 1942 in Yakus v. United States (1944). One might or might not find such delegation objectionable — I do not — but that is the main issue, and talk of the rule of law is largely otiose, at worst misleading.
I want to give one current example, one that has produced an outsized share of hysteria in recent months: the National Emergencies Act and President Trump’s associated proclamations. It seems counterintuitive to many people, but it is nonetheless true, that there is literally nothing interesting in this episode about the rule of law, at least in any sense that is not also implicated when EPA has to meet a claim that it has exceeded its authority or acted arbitrarily under, say, the Toxic Substances Control Act.
First of all, the administration points to one major source of statutory authority that has nothing to do with emergencies at all: a statute signed into law by President Obama on December 23, 2016, codified at 10 USC 284, that authorizes the Secretary of Defense to support the “construction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States.” Now, the administration might be right or might be wrong about whether this express statutory delegation does or does not cover what it proposes to do, but so might EPA in its toxic substance litigation. Talk of the rule of law is not an illuminating frame for the resulting legal discussion. There is no need to ascend, theoretically, to Hobbes, Locke or Hart.
Secondly, the administration points to statutes such as 10 USC 2808, which contain authorities triggered by a declaration under the National Emergencies Act — in this case, the following authority: “in the event of ... the declaration by the President of a national emergency in accordance with the National Emergencies Act (50 U.S.C. 1601 et seq.) that requires use of the armed forces, the Secretary of Defense, without regard to any other provision of law, may undertake military constructionprojects” by spending appropriated but unobligated funds. Now, insofar as we focus on the substantive delegation here, 10 USC 2808, the same logic I mentioned applies; it’s an ordinary administrative law question whether the statues do or do not authorize the presidential action. The National Emergencies Act, for its part, is an explicit delegation to trigger authorities in other laws by proclamation. That might or might not itself be objectionable on nondelegation grounds as open-ended — that conversation would have to start with the observation that “emergency” is a somewhat misleading term of art in our law, given the dozens of statutory “emergencies” declared and ongoing by every administration since 1976, which often persist for years — but presidential action under it raises no particular or special concerns about the rule of law.
Finally, I mentioned at the outset one caveat to the suggestion that there have been no interesting rule-of-law issues surrounding executive power since 9/11. The caveat involves some of the episodes in the so-called “Resistance” to the Trump Administration, such as the decision by Sally Yates to instruct DOJ personnel not to enforce a presidential order that OLC had determined was lawful, on the grounds that in her view it was not “wise or just” and that she was, herself, “not convinced” of its legality. Of all the colorful dramatis personae of the Trump administration, Yates came the closest to declaring herself a Schmittian decisionmaker who personally determines when to make an exception to legal rules out of necessity, in order to ensure that the state takes no harm, to use the old Roman formulation. It was a failed declaration, of course, but a clear attempt at least. It is something of a puzzle why theorists interested in discussing the rule of law do not focus on such cases, which at least supply genuine material. Let me recommend, as a useful citation for those interested in the Yates case, an article Professor Fried wrote in a somewhat different context, entitled simply “Impudence.”
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