Faithfully Executing the Laws: Internal Legal Constraints on Executive Power

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.

Keywords: 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

JEL Classifications: K1, K10, K19, K3, K30, K39, K4, K40, K42, K49

Accepted Paper Series