The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Co-blogger Jonathan Adler wrote a post yesterday on the alleged lawlessness of the Obama administration. I agree with much of the post, but take issue with this assertion:
The debate on the lawfulness of the Obama Administration is really a debate on the extent to which the Administration has allowed legal constraints to get in the way. As with debates over the executive actions taken by prior administrations, the real debate is over whether the Obama Administration has been unduly aggressive in its assertion of executive authority and overly eager to stretch relevant legal authorities in the Administration's favor.
This is exaggerated, perhaps grossly so. It's true that, for example, the debate over President Obama's unilateral moves on immigration, over imposing Common Core on the states, over refusing to prosecute marijuana crimes where marijuana use is legal under state law (though still illegal under federal law), over freeing Guantanamo prisoners without notifying Congress, and over bombing Libya without congressional approval, are all primarily debates "over whether the Obama Administration has been unduly aggressive in its assertion of executive authority and overly eager to stretch relevant legal authorities in the Administration's favor."
But the administration has also been criticized for much more, as detailed in my book "Lawless." Start with the administration advocating wild constitutional theories for political reasons. These include the claim that the president could decide that the Senate was in recess when the Senate clearly was not, in fact, in recess (in fact, Obama signed a bill passed by Congress when it was purportedly in recess!) so the president could make recess appointments desired by Democratic constituencies, and the administration's argument to the Supreme Court that churches and other religious bodies have no First Amendment right to choose their clergy. Not surprisingly, both arguments were shot down 9-0 by the Supreme Court.
Meanwhile, liberal Yale Law School professors Bruce Ackerman and Jack Balkin, among others, have excoriated the Obama administration for ignoring, and thus undermining, the Office of Legal Counsel, one of the few independent internal checks on the exercise of unconstitutional authority by the president.
Both the majority and the dissent in United States v. Windsor expressed their dismay that Eric Holder ordered the Solicitor General's office to refuse to defend a duly-enacted federal statute, DOMA, against longstanding practice that the office will defend any statute for which a reasonable defense can be made. Holder's order seemed transparently motivated by a desire to curry favor with gay rights advocates before the 2012 election, rather than by an objective assessment of whether a reasonable defense was possible. As Justice Kennedy noted in his majority opinion, "when Congress has passed a statute and a President has signed it, it poses grave challenges to the separation of powers for the Executive at a particular moment to be able to nullify Congress' enactment solely on its own initiative and without any determination from the Court [by refusing to defend it in court.]"
Finally, several of the Obama administration's most controversial actions have occurred not when the administration has tried to "stretch" constitutional and statutory precedent, but without the administration providing any substantial legal rationale for why it had the legal authority to do what it was doing. What legal authority did the administration have under TARP to have automobile czar Steven Rattner run GM for several months? What legal authority did the Education Department's Office of Civil Rights have writing a "Dear Colleague" letter, not subject to any notice and comment nor to judicial review, forcing all universities to change their rules for responding to sexual harassment claims in general, much less in ways that stripped accused students of basic due process? What legal authority did the Obama administration have for delaying the enforcement of provisions of Obamacare at the urging of Democrats in Congress, who believed that timely enforcement would hurt their party in the 2014 elections?