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A Supreme Court Conversation

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entries
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from: Walter Dellinger
to: Dahlia Lithwick

The Most Important Decision on Presidential Power. Ever.

Updated Thursday, June 29, 2006, at 5:59 PM ET

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Dear Dahlia,

You are right that two years ago I did say that the court's 2004 enemy combatant cases were historic. And they were. But not like today's.

Hamdan is simply the most important decision on presidential power and the rule of law ever. Ever.

The court has rejected the central constitutional claim of this presidency: that no president is bound to comply with laws passed by the United States Congress if those laws limit any exercise of an astonishingly broad category they call "inherent Presidential power."

I will expand upon this later tonight. But first, I must deal with your unwarranted fear that President Bush's administration might simply refuse to comply with the court's determinations, either openly or covertly. First of all, no one in this administration has ever suggested that the president would ever decline to obey Supreme Court decisions. But there is an even more practical restraint on noncompliance. The law officers of the government will not let that happen.

Yes, I know, actions have been taken in secret—prisons, torture, wiretapping, God knows what else. But many? most? of those actions have—to the extent of our knowledge—been approved by legal opinions from the Department of Justice and the White House counsel. Those legal opinions have seemed to very many lawyers to be fundamentally wrong in their assertions of sweeping unilateral presidential power to act in defiance of clearly valid laws. But, right or wrong, those legal opinions, signed and sealed on official government stationery, were a reality that gave substantial legal protection to government officers and agents who acted in compliance with what the lawyers found to be valid presidential directives.

No more. A lot of those legal opinions are inoperative as of 10 a.m. this morning. And without the cover of the now-discredited theory of sweeping unilateral executive power, the criminal law of the United States again controls.

Today the court holds that common Article 3 of the Geneva Conventions applies to the conflict against al-Qaida. As Justice Kennedy expressly notes in his (controlling) concurring opinion, Section 2441 of the U.S. Criminal Code defines a "war crime" as including any conduct "which constitutes a violation of common Article 3 of the international conventions signed at Geneva." And the statute makes any "war crime"—when committed by any member of the U.S. Armed Forces, or against any member of the U.S. Armed Forces, or against a U.S. national—punishable by life imprisonment, or in certain cases, by death. Now that the fig leaf of untenable legal opinions has been stripped away, there will be great resistance by covered officials to complying with directives that may violate such a serious federal criminal statute.

In order to understand the larger significance of today's Hamdan decision it is important to be clear about exactly how this presidency departed from fundamental legal principles. But that's a complicated but extraordinarily important point, so I'll come back to it in a new posting shortly.

Cheer up, Dahlia. This really is a wonderful day for the rule of law.

Yours,
Walter

the breakfast table
entries
1234567891011121314
from: Walter Dellinger
to: Dahlia Lithwick

The Most Important Decision on Presidential Power. Ever.

Updated Thursday, June 29, 2006, at 5:59 PM ET
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Walter Dellinger is an attorney in Washington, D.C. and the Douglas B. Maggs professor of law at Duke. Dahlia Lithwick is a Slate senior editor.
Photograph of Justice Souter by Paul J. Richards/Agence-France Presse/Getty Images. Photograph of the Supreme Court Building on the Slate home page by PictureArts.
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