OrinKerr.com

Article II and the Notice Question

Watching the webcast of the Judiciary Committee hearing on Presidential signing statements brings up a broader point about the Bush Administration’s approach to Article II powers. It seems to me that the Bush Administration’s approach to Article II powers has two features: (1) an unusually broad view of Article II powers and (2) a refusal to explain in detail the Administration’s broad view of Article II powers. Most criticism of the Administration’s approach has focused on (1). I’m no expert on these issues, but my sense is that, from a structural perspective, the real difficulty is the combination of (1) and (2).

Imagine the Administration changed course on (2), and was very explicit about its interpretation of Article II. If that were the case, Congress could respond. Congress would know exactly how the Executive branch is interpreting the law, and would be able to respond accordingly. I believe John Yoo has conceded that Congress would be free to do this even under a broad reading of Article II; for example, Congress could cut funding to the Administration’s efforts that go beyond Congress’s prohibitions. The details of this may be tricky, but the basic idea is sound: When the feedback loop exists, Constitutional checks and balances can adjust to the President’s vision of Article II powers. Think of it as the Coase Theorem of separation of powers.

The problem with Presidential signing statements in their current practice is that they announce that the President will follow a constitutional vision that no one outside the Executive Branch understands. Take the McCain Amendment. Here is the Presidential signing statement that accompanied it:

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.

Does anyone actually know what that means? We can read John Yoo’s scholarship and take some guesses about what it might mean, but my sense is that for the most part we don’t really know. And that’s the difficulty: Less that the Administration takes a strong view of Article II than that it won’t disclose precisely what that strong view is. Without the feedback loop, it’s hard for the other branches to respond.

Anyway, this is an oversimplified take on a complex topic that is outside my area of expertise. But I thought I would flag the issue, offer a tentative take, and open it up for comments. As always, civil and respectiful comments only.