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Abstract:
Since September 11, 2001 the Bush Administration has engaged in a host of controversial counterterrorism actions that threaten civil liberties and even the physical safety of those targeted: enemy combatant designations, extreme interrogation techniques, extraordinary renditions, secret overseas prisons, and warrantless domestic surveillance. To justify otherwise-unlawful policies, President Bush and his lawyers have espoused an extreme view of expansive presidential power during times of war and national emergency. Debate has raged about the details of desirable external checks on presidential excesses, with emphasis appropriately on the U.S. Congress and the courts. Yet an essential internal source of constraint is often underestimated: legal advisors within the executive branch. On a daily basis, the President must engage in decisionmaking that implicates important questions of constitutionality and legality. Whether to seek congressional authorization before engaging in war, what limits to set (and respect) on interrogations, when to publicly release information regarding security efforts - all are issues over which the President exercises enormous practical control, and all can profoundly affect individual lives and the course of history. This Article examines executive branch legal interpretation: How can internal interpretive process and standards foster or undermine adherence to the rule of law? What norms and procedures should govern executive action? What may be gleaned from recent failures? How might the courts and Congress not only hold presidents accountable for particular failures to uphold the law, but also encourage processes that generally enhance the quality of executive branch legal advice and decisionmaking? This Article takes as its principal example the Bush Administration's interrogation policies. It considers past failures and, looking forward, what standards should govern the faithful execution of the laws. It endorses and builds upon a short statement of Principles to Guide the Office of Legal Counsel, in which nineteen former Office of Legal Counsel lawyers set forth the best of longstanding practices in an effort to promote presidential fidelity to the rule of law.

President, presidential, Congress, courts, take care, torture, interrogation, legal advice, office of legal counsel, department of justice, government ethics, government lawyers, war on terror, bush administration, executive power, faithfully executing the laws, legal interpretation, Constitution

Abstract:
A recurring constitutional controversy of great practical and political importance concerns the criteria Presidents and Senators should use in selecting federal judges. Particularly contentious is the relevance of what sometimes is described as a prospective judge's ideology, or alternatively, judicial philosophy and views on substantive questions of law. This essay seeks to promote principled and productive discussion by proposing five ground rules to govern debate by all participants regarding appropriate judicial selection criteria. Because the continued controversy does not simply reflect principled disagreement on the merits, progress may be encouraged by focusing on deficiencies in current public discourse, including discouraging debate that ignores history and reality, uses misleading language, poses false choices, misconstrues judicial independence, or is otherwise unprincipled and partisan. This essay was published as part of a 2005 symposium on "Jurocracy and Distrust: Reconsidering the Federal Judicial Appointments Process".

Judicial selection, judicial appointments, advise and consent, separation of powers, judiciary

Abstract:
Not long after William Rehnquist joined the Court, he dissented in Roe v. Wade. He has continued to urge the Court to overrule Roe throughout his time on the Court. This paper, which will be published by Cambridge University Press in a forthcoming book entitled The Rehnquist Legacy, evaluates Rehnquist's legacy on abortion, and more generally substantive due process. Rehnquist's abortion opinions over the years are striking in how little they say about abortion per se or any governmental interest in fetal life - less than any other Justice who has opposed Roe. Rehnquist has based his opposition to Roe instead on an extremely narrow view of individual liberty protected against governmental intrusion and general hostility to the doctrine of substantive due process. Rehnquist obviously has not succeeded in overruling Roe. Originally in a minority of only two Justices in Roe, Rehnquist steadily gained support throughout the 1980's. But just when new appointments seemed to provide the necessary votes, the Court unexpectedly reaffirmed what it described as Roe's essential holding in its 1992 Casey decision. Less appreciated is the extent to which the Court has diminished judicial protection for reproductive liberty. Rehnquist wrote in Casey: Roe continues to exist, but only in the way a storefront on a western movie set exists: a mere facade to give the illusion of reality. Court appointments and decisions in the near future will determine Rehnquist's ultimate legacy on reproductive liberty, but for now it is best viewed as mixed and unsettled.

Abortion, reproductive rights, privacy, substantive due process, Rehnquist, Roe, Casey, constitutional interpretation, constitutional change, judicial selection

Abstract:
This article, published in Law & Contemporary Problems, was presented at a Duke Law School conference, The Constitution Under Clinton: A Critical Assessment. It examines a recurring, unsettled issue of executive power: how the President best fulfills his constitutional responsibilities when confronted with the enforcement of a statute that he believes is unconstitutional. What should the President do if he believes enforcing a statutory provision would violate the Constitution? Should, for example, a President comply with a congressional command that he believes would violate the constitutional rights of individuals or compromise presidential power? The article examines the two prevailing approaches taken in the academic literature to this longstanding issue of the constitutional allocation of powers, described here as mandatory enforcement and routine non-enforcement of constitutionally objectionable statutes. It then draws upon executive branch policy and practice to develop a third approach: a context-dependent approach that views the President's non-enforcement authority and responsibility as dependent on the specific statutory provision at issue, including the circumstances surrounding the law's enactment. It suggests first the general principles and then particular factors that should guide presidential non-enforcement decisions. The article concludes with an application of those principles and factors to a recent, particularly difficult and close case confronted by President Clinton: a statutory provision (since repealed) that required the discharge of members of the armed forces who were HIV-positive.

non-judicial constitutional interpretation, extra-judicial constitutional interpretation, presidential power, executive authority, separation of powers

Abstract:
This article was published as part of a symposium on "Congressional Power in the Shadow of the Rehnquist Court." It reviews recent Rehnquist Court decisions that limit congressional power - including through limits on Congress's section 5 and commerce powers as well as state sovereign immunity and "anti-commandeering" doctrine - and traces them to a concerted effort on the part of ideological conservatives to change the direction of constitutional law. The article focuses on a little-known series of lengthy reports issued by the U.S. Department of Justice, under the direction of President Reagan's Attorney General Ed Meese, that developed a detailed and comprehensive constitutional vision on all the great issues of the day - the right to privacy, affirmative action, religion, and many other issues in addition to congressional power and federalism - a vision, moreover, often at odds with Supreme Court precedent. The reports also addressed strategies for implementing the Reagan/Meese vision, including a call for the appointment of ideologically sympathetic judges. The article considers the Reagan/Meese effort as an example of the central role the political branches, and more generally non-judicial forces, play in promoting constitutional change.

Congressional power, constitutional interpretation, constitutional change, Ronald Reagan, Rehnquist Court, judicial selection, judicial appointments, non-judicial constitutional interpretation, federalism

Abstract:
Published as part of a Duke Law School symposium on Conservative and Progressive Legal Orders, this article considers the appropriate role of the political branches - Congress and the President - in the development of constitutional meaning, including the extent of presidential and congressional authority to act on constitutional views at odds with judicial doctrine. The article discusses deficiencies in strong forms of both judicial supremacy (such as that behind the Rehnquist Court's recent limits on Congress's section 5 authority) and what is described in the academic literature as departmentalism (which emphasizes near-plenary authority for each branch to act on its own constitutional views). The article proposes what I call functional departmentalism as an alternative approach that would recognize the shared nature of the interpretive enterprise and only limited, context-dependent authority to act on constitutional views at odds with the views of the other branches. Issues of nonjudicial interpretation and competing constitutional views arise, of course, in diverse contexts (currently ranging, for example, from executive branch authority to engage in torture to the appropriate standards for judicial selection). To illustrate, the article concludes with a functional departmentalist approach to congressional legislation that would regulate abortion premised on constitutional views arguably inconsistent with Supreme Court doctrine (including the Partial Birth Abortion Ban Act of 2003 and versions of the Freedom of Choice Act' introduced, but never enacted, beginning in 1989).

congressional power, constitutional interpretation, constitutional change, Rehnquist Court, judicial selection, judicial appointments, non-judicial constitutional interpretation, judicial supremacy, departmentalism, abortion, partial birth abortion ban act, separation of powers, section 5

Abstract:
President George W. Bush and his executive branch lawyers have earned widespread criticism for extreme positions and practices regarding the scope of presidential authority. The war on terror that followed the September 11, 2001 terrorist attacks provided the context for their most controversial claims of unilateral authority: to override legal prohibitions on the use of torture and cruel, inhuman and degrading treatment; to hold "enemy combatants" indefinitely without access to counsel or any opportunity to challenge their detention; and to engage in domestic electronic surveillance without a court order. Our nation's welfare and integrity depend upon continued evaluation, response, and, when warranted, condemnation of these practices. Many commentators (including me) have proposed reforms and principles to guide future administrations and to encourage Congress and the courts to impose appropriate external checks. This Article, however, urges due care in the formulation of such critiques and reforms, especially regarding the Bush administration's efforts to advance its constitutional views. Critics should be precise with their objections and recommendations in order to avoid undermining legitimate authorities for future Presidents or otherwise disrupting the proper balance of governmental powers. The Bush administration's abuses - especially its claims of authority to refuse to comply with federal statutes - reinforce the need for articulated standards and effective safeguards to ensure lawful conduct. However, those abuses do not obviate the existence or desirability of legitimate presidential authority. Among the powers President Bush has placed at risk is the longstanding and necessary authority of Presidents, with the help of their executive branch lawyers, to interpret the Constitution in ways that go beyond judicial precedent and congressional determinations.

executive power, bush, torture, presidential power, separation of powers, constitutional interpretation, nonjudicial interpretation, departmentalism, presidential noncompliance, presidential nonenforcement