It All Comes Down To Checks And Balances, Not Separation Of Powers

The most important thing we learn hearing that the Boy King disregarded the legal advice of OLC and the AG, together with DoD’s General Counsel isn’t the outcome. Presidents always make the call for the Executive Branch. Rather, it’s how the Administration got there. The informality raises questions for the future.

It’s The How, Not The What

The specific issue is how to interpret “hostilities” in Section 5(b) of the War Powers Resolution. If the U.S. is deemed engaged in hostilities in Libya, that conclusion triggers termination events. People say they’re for an “expansive” definition of hostilities to end operations or a “narrow” one if they’re for the current situation. Put that aside.

Let’s turn to how the Administration made its decision. Usually, when a legal analysis of this magnitude confronts the Executive Branch, OLC serves as coordinator. OLC will typically reach out to affected agencies and departments. Then OLC renders a written formal opinion (even if third-tier law school junk retroactively withdrawn per last Administration).

Here the White House actively avoided that formal structure (and remove from the issue at hand, even if it’s more appearance than fact). Instead, the Administration specifically asked OLC initially only to provide informal advice. Meanwhile, the WH itself solicited legal opinions from around government. Apparently there were a few meetings and some phone calls. That’s it. Then the WH asked for submission of rival analysis. The politics are clear. Amorphous, informal = maximum control. It’s the Diet Coke of Donilon’s exhaustive whirlybird thing-a-jig.

Big problem. Such unstructured process is not a system that can support first rate legal decision-making. Even more than ‘policy’, law is dependent on structure, integration, coherence.

We’ll let others comment on Harold Koh’s dive for HRC and Obama as State Department Legal Advisor. We’re pretty sure he doesn’t personally believe what he wrote. Of course, that’s based on talks with him when he was a young, ambitious ex-OLCer seeking tenure at Yale. A lot can change over time. And there’s the inconvenience of his writing. Someone will Tweet about it all.

Congress, It’s Your Move – You Can Check And Balance An Executive

This episode is a classic example of why separation of powers is a misnomer. As taken to extreme by the Bush Administration this framework posits rigid compartmentalization of power. Article II power is here. Article I is there. No touching. Cooties. Checks and Balances relies on the commingling of power. As one branch waxes, the other can exert pressure back in other ways until the balance is restored.

We agree with Jack Goldsmith in the original NYT article. These issues ultimately are settled by inter-branch politics. How much does Congress believe the Administration is over reaching? What’s its ante? Or does it fold? Clearly, Obama has bet on the latter.