The ABA and Executive Power in the Obama Administration
ABA Watch August 2012
August 3, 2012
In August 2006, ABA Watch examined the American Bar Association’s scrutiny of President George W. Bush’s use of executive powers. During the Bush Administration, the ABA established several task forces to investigate the President’s use of executive power in the war on terrorism, particularly its oversight of surveillance and the treatment of enemy combatants. The ABA also developed a task force and subsequent policy recommendations adopted by its House of Delegates that scrutinized President Bush’s use of signing statements. These task forces focused on the system of checks and balances, with a particular emphasis on whether greater judicial or congressional discretion was needed to monitor presidential decision-making, particularly in the war on terrorism. At the time, many within the ABA’s leadership were disturbed by their perception that President Bush was abusing his executive power. Then-ABA President Michael Greco even compared President Bush to King George III, stating, “We fought the revolutionary war to get away from King George—and we have another one who’s acting like a king.”
Six years later, some critics of the ABA observe that President Barack Obama’s exertions of executive power have not been similarly scrutinized. While current ABA President William T. Robinson has expressed concern about presidential signing statements and remarks the President has made about the Supreme Court, other actions have been left unexamined. ABA Watch chronicles the ABA’s reactions to recent executive actions by the Obama Administration and compares these responses to those during the Bush Administration.
War on Terrorism Task Forces
A significant portion of the ABA’s critique of executive power came with respect to the war on terrorism. During the Bush Administration, ABA task forces were established to examine the Administration’s use of executive power, the importance of judicial review, and the use of war powers. Several amicus briefs also weighed in on the Bush Administration’s treatment of enemy combatants and the role of checks and balances in its detention policies.
The initial Task Force on Terrorism and the Law was established shortly after the attacks of September 11, 2001. The Task Force initially offered its legal guidance in fighting the war on terrorism, but it became increasingly critical of the Administration’s treatment of unlawful combatants and proposals concerning military commissions. Then-ABA-president Robert Hirshon expressed his concern that those subject to military-commission proceedings would not be eligible for appeal to the United States Supreme Court. He stirred some controversy when he compared the President’s policy on military commissions to the Taliban’s secret Star Chambers.
These concerns provoked the establishment of the Task Force on the Treatment of Enemy Combatants. Its policy statement warned that the detentions of Yasser Hamdi and Jose Padilla “risk the use of excessive government power and threaten the checks and balances necessary in our federal system.” The task force was charged “to examine the framework surrounding the detention of United States citizens declared to be ‘enemy combatants’ and the challenging and complex questions of statutory, constitutional, and international law and policy raised by such detentions.”
Policies developed by the Task Force acknowledged that “substantial, but not absolute deference” should be granted to “executive designations of ‘enemy combatants.’” While recognizing that courts “have generally deferred to military judgments concerning POW status and related questions . . . the courts may give the Executive less deference in circumstances involving U.S. citizens not on the battlefield or in the zone of military operations.” Policies proposed by the Task Force and later adopted by the ABA House of Delegates also endorsed “meaningful judicial review” and access to counsel for enemy combatants, with only a minor exception for the riskiest detainees “to accommodate . . . the requirements of national security.”
In August 2007, the ABA House of Delegates adopted policy calling on Congress to supersede the executive order that interpreted the United States’ obligations under Article 3 of the Geneva Conventions relating to detainee treatment and alleged torture. The ABA urged Congress to establish the Army Field Manual as the uniform standard for the treatment of detainees in U.S. custody. The report accompanying the resolution emphasized it should not be interpreted as a challenge to the executive branch, stating, “This resolution relates to a dispute about a legal position, namely whether the July 20 Executive Order violates the humane treatment standard of Common Article 3 of the Geneva Conventions. We believe it does. But the adoption of this resolution is not meant as an attack on the administration or its broader efforts to ensure national security.”
Under the leadership of Michael Greco, the ABA established the “Task Force on Domestic Surveillance in the Fight Against Terrorism” to propose an official ABA policy concerning this program. Greco warned at the ABA 2006 Midyear Meeting: “[Q]uestions about the limits of presidential power in the wake of recent revelations—which Americans and many legal scholars have called ‘shocking’—about secret surveillance of American citizens during the past four years, and the roles of Congress and the Judiciary on this fundamental constitutional issue, have far-reaching implications for all of us.” The Task Force ultimately called upon “the President to abide by the limitations which the Constitution imposes on a president under our system of checks and balances and respect the essential roles of the Congress and the judicial branch in ensuring that our national security is protected in a manner consistent with constitutional guarantees.”
In addition to these task forces, the ABA also filed amicus briefs challenging the Administration’s use of executive power in the war on terror. In July 2003, the Association filed an amicus brief in the U.S. Court of Appeals for the 2nd Circuit regarding the detention of Jose Padilla. The brief contended that Padilla was entitled to meaningful judicial review on the basis of his detention and deserved access to counsel. On February 23, 2004, the ABA filed an amicus brief in the U.S. Supreme Court in support of Yaser Hamdi. The brief argued that due process demands that U.S. citizens indefinitely detained by the government have access to counsel and the chance to challenge the allegations against them. The ABA declared: “We recognize the government’s responsibility to do everything possible to prevent another attack on our nation, but we also worry that the methods employed in the Hamdi and Padilla cases risk the use of excessive government power and threaten the checks and balances necessary in our federal system.”
At the start of the Obama Administration, the ABA was less vocal on issues of national security. Some of this silence can be attributed to the lowered profile of the war on terrorism as the war in Iraq ended and hostilities in Afghanistan receded from public attention. One issue that remained in the headlines concerned where to try those responsible for planning the September 11 terrorist attacks.
In November 2009, then-ABA President Carolyn Lamm wrote to United States Attorney General Eric Holder praising the Obama Administration’s decision to prosecute the five Guantanamo detainees accused of conspiring to commit the 9/11 terrorist attacks in federal court, rather than before a military commission. Her letter recognized the authority of the executive branch to determine where these trials were to be held, stating, “We acknowledge that the president, the attorney general, and the Department of Justice have discretion to determine whether to prosecute these alleged terrorists in federal court or before a military commission. The administration’s decision to prosecute Khalid Sheikh Mohammed and other alleged terrorists in federal court is a sound one that the ABA fully supports.” This statement aligned with ABA policy urging that Guantanamo detainees who are charged with criminal-law violations be prosecuted in Article III courts.
The issue of war powers also arose with respect to hostilities in Libya in 2011. The ABA did not address the Obama Administration’s failure to seek congressional authorization for U.S. military involvement in Libya. Then-ABA President Stephen Zack’s one statement emphasized the ABA’s commitment to advancing human rights and promoting the rule of law. He declared, “The ABA unequivocally believes that adherence to a just rule of law and respect for human rights is critical in order to achieve a constructive resolution that promotes and safeguards the rights of the Libyan people.”
The ABA also remained silent regarding an expanded drone campaign aimed at al Qaeda members, where suspects, including American citizens, were targeted and killed based on decisions made by the executive alone.
Recent ABA initiatives and conferences have not focused on the war on terror. Recent task forces have focused on domestic issues such as civic education, Hispanic legal rights and responsibilities, disaster response, and diversity in the legal profession. The 2012 Section of International Law Meeting largely focused on human-rights topics, with programs discussing a proposed international convention on the rights of older persons, international issues in marriage and divorce, the import of cultural objects, nuclear weapons and humanitarian law, sex and labor trafficking, and a single panel on the Arab Spring. The ABA’s Standing Committee on Law and National Security has published two books, the second entitled Patriots Debate: Contemporary Issues in National Security, featuring policy debates on topics such as executive power, National Security Letters, targeted killing, and cybersecurity.
During the George W. Bush Administration, the ABA organized a “Task Force on Presidential Signing Statements and the Separation of Powers Doctrine.” According to then-ABA President Michael Greco, “The task force will study thoroughly the implications of presidential signing statements for the constitutional doctrine of separation of powers and interpretation of laws. . . . The task force will provide an independent, non-partisan, and scholarly analysis of the utility of presidential signing statements and how they comport with the Constitution and enacted law.” The Commission’s findings led to ABA policy opposing, “as contrary to the rule of law and our constitutional system of separation of powers,” any President’s use of signing statements issued with the stated intention “to disregard or decline to enforce all or part of a law the President has signed.”
While the ABA was sharply critical of President Bush’s use of signing statements, it has not commented on the use of signing statements during the first three years of President Barack Obama’s term in office, with the exception of a December 30, 2011 letter by ABA President Bill Robinson. Robinson questioned President Obama’s frequent use of signing statements, contrary to his promise during the campaign. In 2007, then-candidate Obama stated that his “problem” with President Bush’s use of signing statements is that they were used “in an effort to change the meaning of the legislation, to avoid enforcing certain provisions of the legislation that the President does not like, and to raise implausible or dubious constitutional objections to the legislation.” He vowed to “not use signing statements to nullify or undermine congressional instructions as enacted into law.”
Robinson, in his December 30 letter, recalled that President Obama pledged that he would not use signing statements “as a way to do an end run around Congress.” Robinson observed that contrary to this pledge, President Obama had already issued about twenty statements since assuming office. Robinson voiced his disapproval of the practice, stating, “Where a signing statement is used to nullify a provision of law, the President is effectively usurping the power of the legislative branch by denying Congress the opportunity to override a veto of that law and may be abrogating the power of the judicial branch to make a determination of constitutionality.” He asserts, “The ABA’s commitment to the constitutional principles of ‘separation of powers’ and ‘checks and balances’ leads us to reassert respectfully that a veto, and not a signing statement, is the constitutionally appropriate avenue for any and every President to respond to an objectionable provision inserted in a bill by Congress.”
Use of Presidential Czars
“Czars,” as defined in 2011 legislation proposed by Rep. Steve Scalise, are defined as “a head of any task force, council, policy office within the Executive Office of the President, or similar office established by or at the direction of the President who is appointed to a position that would otherwise require Senate confirmation.” President Obama has named czars in areas such as green jobs, technology issues, Middle East policy, and urban affairs, among other areas. Some observers define thirty czars amongst Obama Administration appointments.
After Section 2262, an April 2011 rider to the FY2011 budget, defunded four presidentially appointed czars, President Obama announced in a signing statement that he will not abide by the cuts. According to President Obama:
Section 2262 of the Act would prohibit the use of funds for several positions that involve providing advice directly to the President. The President has well-established authority to supervise and oversee the executive branch, and to obtain advice in furtherance of this supervisory authority. The President also has the prerogative to obtain advice that will assist him in carrying out his constitutional responsibilities, and do so not only from executive branch officials and employees outside the White House, but also from advisers within it.
Legislative efforts that significantly impede the President’s ability to exercise his supervisory and coordinating authorities or to obtain the views of the appropriate senior advisers violate the separation of powers by undermining the President’s ability to exercise his constitutional responsibilities and take care that the laws be faithfully executed. Therefore, the executive branch will construe section 2262 not to abrogate these Presidential prerogatives.
The ABA has not commented on the constitutionality of presidential czars.
Non-Enforcement of Federal Law
According to the ABA’s Task Force on Presidential Signing Statements and the Separation of Powers Doctrine:
Definitive constitutional interpretations are entrusted to an independent and impartial Supreme Court, not a partisan and interested President. That is the meaning of Marbury v. Madison. A President could easily contrive a constitutional excuse to decline enforcement of any law he deplored, and transform his qualified veto into a monarch-like absolute veto. The President’s constitutional duty is to enforce laws he has signed into being unless and until they are held unconstitutional by the Supreme Court or a subordinate tribunal. The Constitution is not what the President says it is.
There have been two presidential decisions during the current Administration to not enforce federal laws—one in the area of marriage, and the other respecting immigration.
In February 2011, the Obama Administration announced it would no longer enforce the Defense of Marriage Act (“DOMA”), the legal prohibition on federal recognition of same-sex marriage. According to Attorney General Eric Holder, “After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases.”
The ABA, which adopted policy supporting same-sex marriage in 2010, did not comment on President Obama’s decision to not enforce the law. In 2009, the ABA’s House of Delegates adopted policy urging Congress to repeal DOMA. In 2010, the ABA called for states to “eliminate all of their barriers to civil marriage between two persons of the same sex who are otherwise eligible to marry.” In November 2011, the ABA submitted a letter to the Senate Judiciary Committee expressing strong support for S. 598, the “Respect for Marriage” Act. The Senate Judiciary Committee approved the bill in a 10-8 vote in an effort to repeal DOMA. In the letter, ABA Governmental Affairs Director Thomas M. Susman noted that “repealing DOMA is needed to eliminate a significant barrier to states’ ability to respect lawful marriages between same-sex couples.”
In June, the Obama Administration announced that it will stop deporting young illegal immigrants if they meet certain requirements. The policy change will apply to illegal immigrants who came to the United States before they were 16 and who are younger than 30. Those eligible under the shift may not have a significant criminal record, and they must have been in the country for at least five straight years, have either graduated from a U.S. high school or have earned a GED, or served in the military.
The ABA praised the announcement, applauding “the administration’s sound prosecutorial discretion policy.” ABA President William Robinson voiced support for the Development, Relief, and Education for Alien Minors (DREAM) Act, describing how it “would give deserving young people an opportunity to remain in our country for the longer term and to earn citizenship. The DREAM Act would give children who were brought here through no fault of their own the opportunity to become fully contributing members of our society.” The Obama Administration’s policy change serves as a de-facto implementation of the DREAM Act.
In early 2012, President Obama made four “recess appointments,” including three members to the National Labor Relations Board as well as Richard Cordray to lead the Consumer Financial Protection Bureau. The timing of the appointments attracted scrutiny, as some critics argued that the Senate was not in recess at the time of the appointments. Senate Republicans are participating in a lawsuit challenging the constitutionality of these appointments. Senate Minority Leader Mitch McConnell stated, “We will demonstrate to the Court how the President’s unconstitutional actions fundamentally endanger the Congress’s role in providing a check on the excesses of the executive branch.” The ABA does not appear to have addressed this controversy, per publicly available statements on its website. The Association does not have any policy recommendations in this area, nor has it formed a task force.
Relationship with the Judicial Branch
After oral arguments in the Affordable Care Act case, President Barack Obama commented on how he perceived the Court should rule. He stated, “Ultimately, I am confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.” He continued, “I’d just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint—that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I’m pretty confident that this court will recognize that and not take that step.”
The ABA has long championed the concept of judicial independence, and ABA President Bill Robinson reacted to these remarks with a statement that they were “troubling.” He stated, “Particularly worrisome was his suggestion that the court’s decision in this case could serve as a ‘good example’ of what some commentators have cited as ‘judicial activism or a lack of judicial restraint’ by an ‘unelected group of people.’” Robinson did note that the President was able to “recast” his remarks to recognize that “the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it.” Robinson confirmed the legitimacy of judicial review and the importance of an independent judiciary, and he reminded elected officials that the courtroom is “not a political arena.” Officials should refrain from “partisan statements aimed at judges fulfilling their constitutional role and responsibilities.”
United States Attorney General Eric Holder defended President Obama’s remarks, stating, “Courts have the final say in the constitutionality of statutes. . . . Courts are also fairly deferential when it comes to overturning statutes that the duly elected representatives of the people[,] . . . the Congress[,] . . . pass.” The ABA did not comment on Holder’s statement.