THE JUDICIARY CAN'T TAKE THE CASE FOR THE SAME REASON THE LEGISLATIVE CAN'T BIND THE EXECUTIVE:

Meeting With Chinese, Official Tests Limits Set by Congress (CHARLIE SAVAGE, 11/02/11, NY Times)

At an oversight hearing on the matter Wednesday, the subcommittee chairman, Representative Dana Rohrabacher, Republican of California, criticized cooperation with China and chastised the administration for violating the statute. But Dr. Holdren said that the benefits of engaging with China outweighed the risks and that his actions were lawful, pointing to the Justice Department's advice.

While the power of the department's Office of Legal Counsel to nullify statutes has led to fierce debate in recent years, the highest-profile disputes have involved national security issues like surveillance, where significant portions of the material are classified.

By contrast, the executive branch's writings in the current dispute are public. They illustrate how one president's assertion of executive power -- sometimes in memorandums that are secret at the time -- establishes a "precedent" for his successors to develop by applying it to new circumstances. Each repetition cements and expands the claim without a court ever weighing in.

"This is a bipartisan project of executive aggrandizement," said Bruce Ackerman, a Yale law professor and critic of the Office of Legal Counsel system. "Law is a disciplined conversation between lawyers and judges. But without any judges, law is a conversation between lawyers and other lawyers -- and they're all on the same side, building upon one another."

Dawn Johnsen, who led the Office of Legal Counsel for a period during the Clinton administration and was Mr. Obama's first nominee for that position, said on some matters the president must rely on Justice Department legal advice.

"The executive should be very wary of ever acting contrary to a federal statute, but on rare occasions it is necessary and appropriate," she said. "On some issues there is simply very little judicial precedent, and there is no alternative to the executive branch relying on its own legal interpretations."

As in many cases raising tensions between the power of Congress and of the presidency, courts have no opportunity to weigh in because no one has standing to file a lawsuit. In that vacuum, the Justice Department largely cited its own previous claims.

If congressmen want to exercise executive powers they need to run for the presidency.

Posted by oj at November 5, 2011 10:53 AM
Tweet   

Follow @brothersjudd