A Supreme Court Conversation
Dear Dahlia (for the last time this year):
You are right that opinions are mixed on how significant yesterday's Hamdan decision is. Views seem to range from a ho-hum from the usually very astute Richard Samp of the Washington Legal Foundation (he'd "be surprised if any of the holdings … end up having large practical significance")all the way to … well, I guess all the way to me. My flash assessment that it was "the most important decision on presidential power ever" seems to have come in as yesterday's high bid. Having had a night to sleep on Hamdan, listen to others reactions, and read the morning papers, I guess I should reconsider the "importance" question.
Well, one might ask, what presidential power decision is there that exceeds Hamdan in importance? Quite possibly U.S. v. Nixon, the decision that required the president to hand over tape recordings that turned him prematurely into an ex-president. Another candidate is, of course, Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952), the landmark case in which the court ordered President Truman to return the steel mills he had seized to avert a strike during the Korean War; Youngstown set the standard for assessing claims of unilateral presidential power. Each of those cases, however, was still something of a "one-off." Nixon knew he was breaking the law and hoped not to get caught; Truman thought the steel strike was a special case and did not otherwise act as if he could disregard Congress.
In Hamdan however, the court confronted and rejected a deep theory of the Constitution that had been developed by the incumbent administration and was invoked to justify perhaps hundreds of executive decisions (so many of which seem to be secret we will never even know how many) that at least appeared to violate valid acts of Congress. The rejection of that imperial claim is what is important about this case.
It's not about the military commissions. I think what explains differing assessments of the importance of Hamdan is that different people are all viewing the decision from different levels of generality. And the farther back you stand, the more significant it appears. Up close, it's a case about Mr. Hamdan, or maybe about Hamdan and a dozen others. Whether it makes much difference to them is hard to say. If you look at it as a case about the validity of shortcut military commissions, it looks a bit more significant, but Congress will provide some kind of fix for those commissions.
But that is not what Hamdan is really about. As Marty Lederman of Georgetown Law Center said to me last night, future historians are about as likely to think of Hamdan as a "military commissions case" as they are to think of Youngstown Sheet & Steel v. Sawyer as a decision about "steel mill law." Hamdan is about the OLC torture memo; and it's about whether the president can refuse to comply with the McCain Amendment. It's about all those laws the president says, as he signs them, that he will not commit to obey, if in his view foreign relations or deliberative processes of the executive or other matters may be affected. And, by the way, he won't even commit to tell Congress he is not obeying the law. That is what it's about.
It's been really frustrating to me that so many people—including critics of the president—fail to understand what's at the essence of the fundamental constitutional claim of this administration. Even such an incisive critic of presidential overreaching as Senate Judiciary Chair Arlen Specter puts the issue in a confusing way. At Hearings on Signing Statements at the beginning of Hamdan week he made the concession that, "There is no doubt that the president's constitutional power under Article II cannot be limited by statute."
But almost all—not all, but almost all—of what presidents do in the exercise of their Article II powers certainly can be limited by statute. Certainly, no act of Congress is necessary to enable the president as commander in chief to discipline and punish members of the armed forces. That is surely a "constitutional power under Article II," but it just as surely can be "limited by statute." And it has been for over 200 years with enactments such as the Uniform Code of Military Justice—laws never seriously thought to be unconstitutional.
There are actually only a very few core executive functions that Congress may not touch. But where—as in all the matters we have been talking about—Congress has its own legislative authority, the president has to show how those core functions of his would be jeopardized by complying with the law. And as the court noted yesterday, no such showing was even seriously attempted in Hamdan.
The White House's response to Hamdan was to shrug that it "requires little more than having Congress put its stamp of approval" on the some modified military trial plans or maybe on the existing plan. But that is the whole point of this ruling in Hamdan—to move the president from violating the law to complying with a new law to be enacted by Congress.
A short while back, there seemed to be no stopping the sweeping and untenable assertions of a presidential power to disregard laws that seemed entirely constitutional to me. I had thought we had effectively lost the principle that the president—indeed, the whole executive branch of government—was really required to comply with valid federal laws constitutionally enacted by Congress. Now I think that principle has been not merely affirmed but also re-enshrined. How many cases can be more important than that?
I have really enjoyed this opportunity—although it really is nerve-wracking to write so fast on complicated matters. I don't know how you do it all the time. I have been one of your abject cult followers since you started writing for Slate and changed the way we all thought the court could be covered. You make us laugh while we learn from your keen insights. I now know how Desi Arnaz must have felt while he watched Lucy work her magic.
Walter Dellinger is a partner at O’Melveny & Myers in Washington, D.C. He filed one of the amicus briefs on behalf of a group supporting gay marriage. The views expressed here are his own.