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Should Obama Seize Constitutional Power?

A thought experiment: How the president could maximize his imperial authority by invoking the Constitution -- just like his predecessors 

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My last two posts have concerned my thought experiment in which Obama, faced with a refusal by Congress to raise the statutory debt limit, declares the statute unconstitutional and refuses to observe it. This one, I promise, is the last.

The experiment is not a prediction; but it does offer a useful chance to talk about some of the conundrums of constitutional text (see my last post), executive-congressional relations, and the crucial question of who interprets the Constitution -- especially in relation to issues that will probably never come before the Supreme Court.

Executive officials must make constitutional decisions all the time -- for example, does the president have legal and constitutional authority to launch a military operation against Osama  bin Laden in Pakistani territory? -- knowing their decisions won't ever be reviewed by judges.  One of the questions they must answer is whether to obey statutes that purport to limit the president's authority under Article II. It's no small decision for a president to refuse to follow a statute; but by the same token, it's no small thing to obey a law that oversteps Congressional bounds.

I'm not sure I buy the executive-hawk argument; but sauce for the Bush goose, the administration might argue, should be sauce for the Obama gander.

(The Supreme Court just this week agreed to referee such a battle. The case of M.B.Z. v. Clinton tests a statute ordering the State Department to record that American citizens born in Jerusalem are born in "Israel," though official U.S. policy doesn't recognize Jerusalem as part of Israel. Both Bush and Obama administrations have refused to issue the birth certificate as the statute requires, on the grounds that the Constitution gives the executive branch the sole authority to recognize foreign governments and determine their jurisdiction. The lower court held that the dispute was a "political question" -- meaning one that courts could never resolve.  The Court will reconsider that holding; if it finds the question "justiciable" -- meaning a court can answer it -- it may still hold that the executive was right to disobey the statute.) 

To me, one interesting thing about my imagined scenario -- Obama defying the debt limit and ordering Geithner to borrow if needed to repay America's debts -- is how closely it actually fits recent practice by Republican presidents. For the past three decades, conservative theorists have insisted that the executive branch is the rightful place for every federal power except those few given exclusively to Congress. That was the Bush administration's constant refrain during the early years of the War on Terror. In one of the infamous "torture" memos during the weeks after September 11, Office of Legal Counsel official John Yoo breezily wrote that "the constitutional structure requires that any ambiguities in the allocation of a power that is executive in nature -- such as the power to conduct military hostilities -- must be resolved in favor of the executive branch." That meant, to Yoo, that the president could attack any nation he chose, on his sole determination that it posed or might pose a threat. Congress could authorize him to attack another country, but could not forbid him to do so.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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