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December 07, 2007

Sen. Whitehouse Reveals Smoking Gun of White House Claiming Not to Be Bound by Any Law

Sen. S. Whitehouse, after reviewing secret administration rulings, identified three things of concern in the administration's legal opinion, notably the claims that:

An executive order cannot limit a President.  There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order.  Rather than violate an executive order, the President has instead modified or waived it.

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.

The Department of Justice is bound by the President's legal determinations.

While I agree these are of concern, I am concerned that Whitehouse is mixing constitutional and good-government concepts.

(1) Executive orders are not in our Constitution.  They are a method used inside the executive branch to provide direction within the executive branch.  As such, I agree with the administration that, under current law, there is no need to issue a new one or even publish the changes or tell anyone he has.  However, that is obviously bad administration -- for how are people in the administration operating under the executive order to know that it is different/in-operative?  If there are often unannounced changes, people will cease to treat them as operative since they never know if they are or are not.  Furthermore, it is clearly deceptive to We the People and our Congress if the administration is secretly doing something other than what was in the published executive order.  Obviously, only those he secretly tells that that can ignore it.  That's bad.  But it is bad government and deceptive, not necessarily unconstitutional.

Such deceptiveness may well be considered by Congress an impeachable offense.

Possibly congress could pass a law requiring a process for executive orders be made and published and changes be published.

(2) In a narrow technical sense, I would agree the president can determine constitutionality -- but only in this narrow sense: he can determine it for providing guidance within the executive branch.  However, in contrast to the actual position the administration takes, that doesn't mean it can't be adjudicated in court.  And if his determination is in conflict with  a law, then he would be subject to courts and impeachment.  I think Whitehouse is correct in his concern.

(3) I suppose I would agree, again on technical grounds: the DOJ is part of the executive branch which is run by the president, so presumably, though it would be bad government to do so, he could be the final arbiter on legal opinions issued.

But if the president consistently makes bad decisions that undermine the faith of the people in the rule of law, or that countermand laws, congress can always impeach him to teach future presidents a lesson.

I hope to have more, in more detail, to say about this in a few days.  But these are the highlights.

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