The law: in service to power: legal scholars as executive branch lawyers in the Obama Administration.

Author:Edelson, Chris

As a presidential candidate in 2008, Barack Obama criticized the George W. Bush administration for expanding presidential power beyond legal limits. Obama promised to reestablish the rule of law as "a president who has taught the Constitution, and believes in the Constitution, and will obey the Constitution of the United States of America" (Koh 2009, 18). After winning election, President Obama rapped a number of "legal idealists" as executive branch lawyers, people who seemed similarly committed to rejecting the Bush administration's approach (Kassop forthcoming). Among these lawyers were Harold Koh, David Barron, and Martin Lederman.

In 2009, Koh went on leave from his position as Dean of Yale Law School to become Legal Adviser to the State Department. He had established a reputation as "the leading and most vocal academic critic of presidential unilateralism in war, and a tireless advocate for institutional cooperation between the political branches in war decisions" (Goldsmith 2011b). Barron and Lederman were professors at Harvard Law and Georgetown Law, respectively, before they joined the Office of Legal Counsel (OLC) in 2009. Glenn Greenwald, a critic of presidential power under both the Bush and Obama administrations, described them at the time of their appointments as "[t]wo of the most vehement critics of Bush's executive power abuses" (2009). Greenwald wrote that "[i]t is virtually impossible to imagine [Barron and Lederman, as well as Dawn Johnsen, who was expected to head up OLC] placing political allegiance to Barack Obama over the principles they have so forcefully advocated over the last several years" (2009). While Bush had been able to count on lawyers who would "decree[] that anything the President wished to do was legal[,]" Barron and Lederman were "highly likely to impose real limits when the law or the Constitution dictates" (Greenwald 2009).

As it turned out, Koh, Barron, and Lederman, in their roles as executive branch lawyers, endorsed broad conceptions of presidential power. This article seeks to explain the apparent contradiction: how did legal scholars who emphasized limits on presidential power through checks and balances become executive branch lawyers who, like their predecessors in the Bush administration, seemed to find ways to tell the president that whatever he wanted to do was legal? Can their changing views be explained and justified by their changed roles? I conclude that their views may be explained by their new roles, but they cannot be justified. In other words, as executive branch lawyers, these men may very well have concluded that it was necessary to de-emphasize concerns about unchecked presidential power. However, this is only an explanation of, not a justification for, their actions. There is nothing about the role of an executive branch lawyer that would require this changed approach. In fact, as Koh himself had written as an academic, the primary obligation of a government lawyer is "to uphold and protect the Constitution and laws of the United States of America" (2005, 1166).

I conclude that, as executive branch lawyers, Koh, Barron, and Lederman should have followed the same fundamental approach to presidential power they had previously described as legal scholars. Of course, some differences could theoretically be justified: for instance, executive branch lawyers might reasonably defer to decisions made by their predecessors as precedent (Dellinger 2004, 3; Morrison 2011). Executive branch lawyers might, because they "view the law through a particular lens" reach conclusions that "legitimately differ on some issues from that of a differently situated actor [i.e. a legal scholar]" (Morrison 2010, 1456). However, neither of these possible justifications applies here. As executive branch lawyers, Koh, Barron, and Lederman reached conclusions that were not required by State Department or OLC precedent and cannot be explained as simply a legitimate difference of opinion. Their conclusions required them to abandon core principles they had staked out as legal scholars, principles that ought to have guided their work as executive branch lawyers defining the scope of presidential power.

Harold Koh: From Power Sharing to Presidential Dominance

Koh suggests that critics who argue he is a hypocrite for moving away from his scholarly body of work after he joined the Obama administration are taking his previous views out of context by focusing on, for example, "a sentence [he] put in to complete a footnote in a tenure piece" (2011a). He is right that it is inappropriate "to play 'gotcha'," by "scavenging for quote lines" in articles he wrote years ago that seem to contradict positions he later took as legal advisor at the Department of State (Koh 2011a). In order to compare the views Koh expressed as an academic with the positions he supported as a government lawyer in the Obama administration, I will consider Koh's academic writing in detail. This article does not depend on a footnote from a tenure piece, but rather on principles Koh consistently staked out in a substantial body of scholarly work over several decades. My conclusion is that there are, in fact, significant differences between what Koh wrote before and after he joined the Obama administration. (1)

The question is whether those differences can be reconciled. Koh has argued that any changes in his approach can be explained by his changed role: "different roles place very different demands on the same lawyer" (2011a). I agree that the changes observed in Koh's thinking about presidential power may well be explained by how he saw his new role. But to say that these changes can be explained does not necessarily mean that they are justified. Ultimately, I conclude that Koh's decision to embrace an expansive vision of presidential power as an executive branch lawyer in the Obama administration was harmful to the framework of power sharing between the executive, legislative, and judicial branches that he endorsed as an academic, and was not justified by his changed role. The problem is not one of hypocrisy or inconsistency. As Koh suggests, it would be foolish to maintain the same views if experience teaches that they should change. However, Koh's approach as an academic, when he warned against concentrating power in the hands of the president, was based on fundamental constitutional principles that should have also guided his work as an executive branch lawyer.

Koh's Views as a Legal Scholar: An Emphasis on Limiting Presidential Power

Early in his academic career, Koh published The National Security Constitution: Sharing Power after the Iran-Contra Affair, a book that described principles he would consistently follow in his scholarly writing (1990). In his book, Koh concluded that the Iran-Contra scandal was "the latest episode in a history of executive avoidance of legislative constraint in foreign affairs that goes back to Vietnam" (2) (1990, 4). Presidential domination of foreign affairs undermined the National Security Constitution, by which Koh meant the "notion[] that generally speaking, the foreign affairs power is a power shared among the three branches of the national government" (Koh 1990, 69; emphasis in original). Koh identified two competing schools of thought regarding the scope and limits of presidential power in the area of foreign policy: (1) the United States v. Curtiss-Wright Corp. (1936) approach, resting on Justice Sutherland's mangled misapplication, in dicta, of John Marshall's reference to the president being the "sole organ" of the nation when it comes to carrying out and communicating foreign policy; and (2) the Youngstown Sheet & Tube Co. v. Sawyer (1952) approach, endorsing Justice Jackson's tripartite test that emphasizes limits on presidential power (1990, 93-95, 107-10, 134-36). Koh placed himself squarely in the Youngstown camp (1990, 181-82). He argued that concentrating power in the presidency undermines the structure of the Constitution and that understanding how to address this problem depends on "a broader national recognition that executive practice has recently gained undue predominance as a source of customary constitutional law in the area of foreign affairs" (Koh 1990, 158).

In Koh's view, the ideal model for foreign policy decision making was defined by "interbranch communication, consultation, and cooperation" (1990, 190). This vindicates the Constitution's vision of shared powers. In practice, however, presidents were dominating the field, acting independently, and "almost invariably win[ning] in foreign affairs" (Koh 1990, 117). Following the Supreme Court's suggestion in Dames & Moore v. Regan (1981), presidents could "act first, then search for preexisting congressional blank checks, rather than seek specific prior or immediate subsequent legislative approval of controversial decisions" (Koh 1990, 140). Instead of consulting with legislators in advance, presidents were "present[ing] Congress with a fair accompli[]," with the result being that "mistrust and confrontation" took the place of consultation and cooperation (Koh 1990, 215).

In his book, Koh concluded that congressional and judicial acquiescence significantly contributed to the problem of excessive presidential power in the area of foreign affairs: "in the years from Vietnam to the Iran-contra affair, the president regularly broke his bargains with Congress in foreign affairs and neither Congress nor the courts forced him to keep those bargains" (1990, 156-57). In fact, this reality was so obvious to executive branch lawyers that it "enter[ed] directly into the[ir] calculus [when they were] asked to draft a legal opinion justifying a proposed foreign affairs initiative" (Koh 1990, 117). Lawyers were emboldened to consider not simply what the law permitted but what the president would be able to get away with, given the likelihood of congressional inaction.

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