Open AccessPosted Content
Faithfully Executing the Laws: Internal Legal Constraints on Executive Power
TLDR
In this paper, the authors examine the role of the legal advisor within the executive branch and propose a set of principles to guide the Office of Legal Counsel (OLC) in order to promote fidelity to the rule of law.Abstract:
Since September 11, 2001 the Bush Administration has engaged in a host of controversial counterterrorism actions that threaten civil liberties and even the physical safety of those targeted: enemy combatant designations, extreme interrogation techniques, extraordinary renditions, secret overseas prisons, and warrantless domestic surveillance. To justify otherwise-unlawful policies, President Bush and his lawyers have espoused an extreme view of expansive presidential power during times of war and national emergency. Debate has raged about the details of desirable external checks on presidential excesses, with emphasis appropriately on the U.S. Congress and the courts. Yet an essential internal source of constraint is often underestimated: legal advisors within the executive branch. On a daily basis, the President must engage in decisionmaking that implicates important questions of constitutionality and legality. Whether to seek congressional authorization before engaging in war, what limits to set (and respect) on interrogations, when to publicly release information regarding security efforts - all are issues over which the President exercises enormous practical control, and all can profoundly affect individual lives and the course of history. This Article examines executive branch legal interpretation: How can internal interpretive process and standards foster or undermine adherence to the rule of law? What norms and procedures should govern executive action? What may be gleaned from recent failures? How might the courts and Congress not only hold presidents accountable for particular failures to uphold the law, but also encourage processes that generally enhance the quality of executive branch legal advice and decisionmaking? This Article takes as its principal example the Bush Administration's interrogation policies. It considers past failures and, looking forward, what standards should govern the faithful execution of the laws. It endorses and builds upon a short statement of Principles to Guide the Office of Legal Counsel, in which nineteen former Office of Legal Counsel lawyers set forth the best of longstanding practices in an effort to promote presidential fidelity to the rule of law.read more
Citations
More filters
Book
Executive review : kontrola konstytucyjności prawa przez władzę wykonawczą w Stanach Zjednoczonych
TL;DR: In this paper, the authors present a survey of the state-of-the-art techniques to improve the quality of data collected from the Internet for the purpose of data augmentation.
Dissertation
The dismantling of the rule of law in the United States: systematisation of executive impunity, dispensation from non-derogable norms, and perpetualisation of a permanent state of emergency
TL;DR: In this paper, the authors argue that the abuse of executive supremacy is what led to the development of the rule of law, and that the United States is being governed in accordance with its basic minimum norms.
Lawyering Compliance with International Law: Legal Advisors and the Legalization of International Politics
TL;DR: In this paper, an organizational theory of compliance based on lawyerization, understood as the structural empowerment of legal advisors in decision-making, is presented, which is empirically applied in the realm of international security.
Posted Content
Presidential Power, Historical Practice, and Legal Constraint
TL;DR: The scope of the President's legal authority is determined in part by historical practice as mentioned in this paper, and there has been growing skepticism about the ability of the familiar political checks on presidential power to work in any systematic or reliable fashion.
Dissertation
The accountability state : US federal inspectors general and the pursuit of democratic integrity, 1978-2012
TL;DR: In this article, the authors argue that despite certain failures and limitations, federal inspectors general play an important and unrecognised role in the process of democratic accountability, and they do not always contribute successfully to direct accountability in the form of sanctions and immediate bureaucratic reforms, and indeed have undermined the very efficiency and integrity they are tasked with promoting.
References
More filters
Book
Executive review : kontrola konstytucyjności prawa przez władzę wykonawczą w Stanach Zjednoczonych
TL;DR: In this paper, the authors present a survey of the state-of-the-art techniques to improve the quality of data collected from the Internet for the purpose of data augmentation.
Dissertation
The dismantling of the rule of law in the United States: systematisation of executive impunity, dispensation from non-derogable norms, and perpetualisation of a permanent state of emergency
TL;DR: In this paper, the authors argue that the abuse of executive supremacy is what led to the development of the rule of law, and that the United States is being governed in accordance with its basic minimum norms.
Lawyering Compliance with International Law: Legal Advisors and the Legalization of International Politics
TL;DR: In this paper, an organizational theory of compliance based on lawyerization, understood as the structural empowerment of legal advisors in decision-making, is presented, which is empirically applied in the realm of international security.
Posted Content
Presidential Power, Historical Practice, and Legal Constraint
TL;DR: The scope of the President's legal authority is determined in part by historical practice as mentioned in this paper, and there has been growing skepticism about the ability of the familiar political checks on presidential power to work in any systematic or reliable fashion.
Dissertation
The accountability state : US federal inspectors general and the pursuit of democratic integrity, 1978-2012
TL;DR: In this article, the authors argue that despite certain failures and limitations, federal inspectors general play an important and unrecognised role in the process of democratic accountability, and they do not always contribute successfully to direct accountability in the form of sanctions and immediate bureaucratic reforms, and indeed have undermined the very efficiency and integrity they are tasked with promoting.