Bickel, Jackson – and Bush

Recently the Bush administration has submitted its warrantless surveillance program to examination by the Foreign Intelligence Surveillance Court, after maintaining vigorously that it need not do so.  It is unclear what, exactly, the administration is asking the Court to do, and the administration refers obscurely to “new legal developments”; but let us suppose that at least part of the administration’s motive is to avoid a judicial and legislative test of the program’s legality, by rendering litigation moot and dampening the impetus for congressional oversight.  In litigation over the detention of enemy combatants, the administration has sometimes pulled off a similar maneuver, as when it transferred Jose Padilla from military detention to the criminal justice system in order to moot pending litigation.  Many critics find these actions objectionable.  Are they?

Sometimes the critics complain that the administration dilutes its credibility when it advances a legal position in public debate, encourages its defenders to speak up, and then changes course by avoiding a legal showdown.  If the complaint, however, is that the administration has miscalculated the political costs and benefits of changing its course, one wonders why the critics are better positioned to make that assessment than is the administration itself.  Critics who make this objection say little about the benefits of changing course, such as eliminating the risk of bruising oversight in Congress or a humiliating defeat in the courts.  Politically, it seems quite rational to think that the benefits outweigh the sacrifice in credibility.

More interesting is a different objection: that the administration has violated constitutional norms and evaded accountability by ducking a formal judgment on the legality of its programs.  On this view, because the administration’s “goal is to prevent a court from stating clearly that the President acted illegally and that his theories of executive power are self-serving hokum”, the administration is akin to a neighborhood bully who backs down from a challenge.  Private litigants can generally settle cases to avoid creating an adverse precedent, but not always, because precedents are a type of public good rather than private property.  In any event, the executive branch is no ordinary private litigant, and has higher obligations.

Another perspective, however, is that the administration is acting just as Congress and the courts themselves have historically acted.  Congress has often avoided a showdown with the executive branch over the constitutional allocation of the power to make war and other national security powers.  The pattern is repeating itself today, as the new Democratic Congress is so far avoiding a direct confrontation with the President over the deployment of troops in Iraq.

As for the judges, when facing a rampant Reconstruction Congress in the aftermath of the Civil War, the Court in several cases resorted to dubious procedural rulings to avoid having to pronounce on the legality of legislative measures – in part because invalidation of those measures would have resulted in retaliation, and perhaps severe political damage to the Court itself.  And after Brown v. Board of Education, the Court avoided ruling on the validity of anti-miscegenation laws for more than a decade, fearing that a legal showdown would require either upholding those laws, or else would result in an invalidation that would prove politically intolerable to an inflamed public, especially in the South.

Many legal theorists have thought that the Court followed the proper course in these situations.  Alexander Bickel famously praised the Court for exercising “the passive virtues” by taking a third way, neither upholding nor invalidating politically controversial laws.  In the context of wars and emergencies, Justice Robert Jackson, in a famous opinion in the 1944 Korematsu case, urged the Court to avoid ruling on the validity of Roosevelt’s military orders that interned Japanese aliens and Japanese-Americans.  Jackson seems to have thought that approving the orders was constitutionally and morally objectionable, while invalidating them was politically impossible; the better part of valor was to avoid the issue altogether, in part to avoid creating a damaging precedent that would “lie around like a loaded gun.”

On this view, the administration is acting in the best traditions of Bickel, Jackson and the Court itself.  By avoiding a final test of its power to detain citizens like Padilla, or to engage in warrantless surveillance, the administration avoids creating precedent when the political winds are blowing against it; that sort of precedent would lie around like a loaded gun to be used against the executive in the future.  Mooting the issues leaves the law of executive emergency powers in the state of twilight uncertainty that Jackson praised in Korematsu, and allows the administration to fight another day in better circumstances -- the same plan that the Court followed after Reconstruction and after Brown v. Board.  What’s sauce for the judicial goose is sauce for the executive gander.

Eric Posner & Adrian Vermeule

Comments

[Joan A. Conway]

Bush, Gonzales, and Rove have been acting like this since Bush was Governor of Texas, why now does everyone feel he has crossed the line of appropriateness, when he hasn't changed at all.

I don't understand people.

They want to believe in a guy, who lied to them about too many things before he became President, and then when the stakes get too high and the risk to faulty, they say, see he was too secret of what he was up to.

The fools don't want to believe in the facts and buy into the American Dream.

The purse strings have become too tight for many?

People want the good times back and are willing to forget about the 911 attack.

I don't say I know for sure about Bush's success rate in the increase troops being deployed to Iraq, but I now realize this man is deadly serious. I have even changed my opinion recently with this campaign of his to go down with the ship!

That is a committment.

Shouldn't we honor a government willing to make this committment to another country that can help our own country resolve a horrendous problem of terrorists directed at us?

Perhaps we should be more committed too!

[Garth]

What transparent nonsense.

One need look only to the examples used to see how far one must go to find adequate comparison's for the Bush administration.

Miscegenation laws, Japanese internment... what about the Alien & Sedition Act or Watergate.

Yeah, yeah, we've heard the But they all do it defense before.

[Garth]

As for avoiding a confrontation with Bush over the troops. The Democrats just took over this month.

Right now they are simply feeding Bush the rope.

[Michael Martin]

While I am all for the passive virtues, this argument looks to me to be too clever by half. There are some relevant institutional differences between the executive and judicial branches. There is plenty of constitutional basis for the judicial branch to decide cases on procedural grounds (think of the case or controversy requirement). By constrast, there is a reason by Article II only says "take care" -- the executive shouldn't have the luxury of avoiding a political crisis by clever legal slight-of-hand. That's a quid-pro-quo for its sweeping authority, is it not?

[TJ]

Professor,

I have to disagree with your analogy. When the Supreme Court ducks an issue, it usually doesn't opine on the merits of it. Here, the administration has ruled on the merits, but then ducked review. Thus, this is not like ducking anti-miscegenation laws after Brown, but rather more like what Chief Justice Marshall did in Marbury v. Madison.

Whether what CJM did in Marbury (opining on the merits but then avoiding the political cost by dismissing for lack of jurisdiction) was appropriate is a question that has far more divided opinion than the prevailing praise of judicial restraint after the civil war.

[LAK]

Well of course it is. Look to the intent. It is unscrupulous. To avoid scrutiny of their practices. To avoid accountabilty. It is especially dangerous when no one has any real idea outside the Executive branch of what kind of searches and surveillance they were conducting, or how many instances of improper detention or human rights violations were going on.

They'd rather render one case moot than have their practices exposed, which in many ways is even more disturbing.

[LAK]

And let's not kid ourselves. The glaring distinction is that the Court is charged with interpreting and upholding the Constitution and is doing its job when it evaluates others' conduct.

To compare the Court avoiding poltically unpalatable precedent at sensitive times to what the Bush administration is doing right now, now that they are having the light of day shined on them by Congress, is ridiculous. To even suggest they are doing it as some kind of high minded political pragmatism akin to the High COurt in the instances you cite is absurd.

They don't want to have many more instances of hearings in which the Attorney General of the United States of America says "The Constitution doesn't say every citizen is granted or assured the right of habeas."

My heart and brain ache.

It isn't any high minded judicious pragmatism. I'm surprised anyone would even suggest so when it is the Executive Branch we are talking about, especially given the circumstances and timing.

[Sarah]

Professor Posner's argument exposes the fallacy of his conclusion. While Congress and the Court have (rightly or wrongly) often sought to avoid pronouncements or actions that might bring them into conflict with the other branches, the current administration has taken every opportunity to assert its primary authority to decide constitutional issues, backing away only when the other branches refuse to back away from their own responsbilities. it is one thing to assert power reluctantly, quite another to assert it recklessly and without regard to actual authority, in reliance on one's ability to evade review at the last moment.

[Erasmussimo]

I've been holding back on this topic because I wanted time to consider Mr. Posner's argument carefully, but Sarah's comment has gelled my thinking. The central notion, in my thinking, is the element of opportunism. That is, the Bush Administration has established a clear pattern of claiming maximum authority, and then backing down when effectively challenged. You will recall that Mr. Bush originally claimed that the AUMF gave him the authority to invade Iraq on his own prerogative -- but backed down and sought Congressional approval when it became clear that Congress would not go along with so extreme an interpretation of AUMF.

Mr. Bush's signing statements are the clearest manifestation of this pattern of behavior. He has claimed breathtaking powers in his signing statements. Since they have no legal significance outside of the Executive Branch, there is no formal means for challenging his claims. However, I suspect that this Congress will address some of Mr. Bush's more egregious claims. And I suspect that Mr. Bush will back down.

[Joan A. Conway]

If you want to return to a life that occurred fifty years ago, you want to be a Supreme Court Justice.