Restoring Separation of Powers

Vol. 35 No. 4

By

Erwin Chemerinsky is dean and distinguished professor of law, University of California, Irvine, School of Law.

During the Nixon presidency, the renowned historian Arthur M. Schlesinger Jr. wrote a book titled, The Imperial Presidency (Houghton Mifflin, 1973), about the tremendous growth in unchecked presidential powers. Yet nothing in the Nixon years began to approach the claims of executive authority asserted by the Bush administration. In fact, no other president in history so broadly construed the scope of presidential authority. Undoubtedly, there will be temptations for your White House to retain this authority. Government officials rarely voluntarily relinquish power. But it is essential that your administration emphatically shift course and affirm a strong commitment to the checks and balances that are required by the Constitution’s separation of powers principles.

There are many examples of the extremely broad Bush administration approach to executive power. The most important is the claim of the ability to detain individuals without meeting the Constitution’s requirements. For instance, José Padilla was apprehended and detained by the Bush administration for over four and a half years before being charged with a crime. Although he is an American citizen who was apprehended in the United States for a crime planned in the United States, the Bush administration argued that it had the authority to hold him indefinitely as an enemy combatant. Because Padilla ultimately was charged and tried, the underlying issue of the legality of the president’s assertion of power was never resolved.

Ali al-Marri was a student at Bradley University in Peoria, Illinois, and a resident alien lawfully in the United States. For six years, he has been held as an enemy combatant without being charged with any crime. The Supreme Court will hear his case in March 2009, with a decision expected by June 2009. Again, the Bush administration asserted that even though he was arrested in the United States and is held in the United States, al-Marri is not entitled to any constitutional protections.

This is no less than a claim by the president of authority to suspend the Fourth Amendment, which generally requires that arrests be based on probable cause; the Fifth Amendment, which requires a grand jury indictment to detain a person for trial; and the Sixth Amendment, which requires that there be proof beyond a reasonable doubt and a conviction in order to imprison a person. Arguments like these that purport to be based on the framers’ intent are always suspect, but there is no doubt that the framers were deeply distrustful of unchecked executive power. Their experiences under English rule caused them to want to make sure that any deprivation of liberty involved receiving the approval of another branch of government. The Bush administration ignores this fundamental aspect of separation of powers by claiming that it can detain individuals subject to no judicial review whatsoever.

Likewise, since January 2002, the Bush administration consistently argued that no court has the authority to review its actions in detaining hundreds of people in Guantanamo Bay, Cuba. The Bush administration twice lost in the Supreme Court. First, in Rasul v. Bush , 542 U.S. 466 (2004) the Supreme Court held that Guantanamo detainees were entitled to access to federal courts via a writ of habeas corpus. Subsequently, in June 2008, in Boumediene v. Bush , 128 S.Ct. 2229, the Court declared the Military Commissions Act of 2006 unconstitutional in precluding non-citizens held as enemy combatants from having access to the federal courts via writs of habeas corpus. 

The key from a separation of powers perspective is the consistent claim of unchecked and uncheckable executive authority. The Bush administration over and over again argued that it alone could decide whether a person was to be held or released. 

Another major example of the Bush administration’s expansive view of presidential power is the claimed authority to violate federal laws that curtail executive authority. This was seen most directly in the famous “torture memos” written by former Justice Department Office of Legal Counsel officials John Yoo and Jay Bybee. Although there are both a treaty and a federal statute prohibiting torture, these top government officials said that the president was not bound to obey them. They argued that the president could redefine torture and could not be limited by treaty or statute. This approach essentially ignores the roles of both Congress and the courts in our constitutional system.

As Jane Mayer documents in her book, The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals (Doubleday, 2008), the administration used the memos as the asserted legal foundation for rendition camps created by the CIA in countries with horrendous records on human rights. Mayer describes how individuals, including innocent individuals taken by mis take, were brought to the rendition camps and horribly tortured. She describes how an individual was killed by this torture.

The claim of the authority to ignore statutes limiting presidential power was also present in the area of warrantless electronic surveillance. The Foreign Intelligence Surveillance Act (FISA) is explicit that any electronic eavesdropping on American citizens must be done either in compliance with the procedures under that statute or under those provided in Title III of the Omnibus Crime Control and Safe Streets Act of 1968. Under the latter, a warrant must be obtained by a federal judge before wiretapping or eavesdropping of individuals in the United States. Under the former, the government can obtain a warrant from the Foreign Intelligence Surveillance Court if it shows that a significant purpose of its actions is gathering foreign intelligence information. But the law is clear that one of these procedures must be followed.

The Fourth Amendment requires no less. Electronic eavesdropping is a form of a search and generally requires a warrant and probable cause. From a separation of powers perspective, this makes great sense—again so that there are checks and controls on the executive branch.

But the Bush administration has argued that the limits on executive power imposed by FISA are unconstitutional and that it could simply ignore them. The government implemented a massive program of intercepting electronic communications between those in the United States and those in foreign countries. Even Attorney General John Ashcroft had grave doubts about the constitutionality of this program.

Yet another illustration of the Bush administration’s views regarding separation of powers concerns the use of presidential signing statements. Signing statements are nothing new, but no president in American history has ever used them nearly as frequently as did President Bush. He routinely declared that there are parts of laws that are unconstitutional and attempted to substitute his view of a law for that of Congress. During the Reagan presidency, lawyers for the government argued that signing statements were a way to shift power from Congress––whose legislative history has long been important––to the executive branch.

There is nothing wrong, of course, with presidential signing statements. The president has the right to express his views on any issue, including legislation passed by Congress. But there is no legal effect to such signing statements, and this needs to be made clear and explicit.

Thes e are just some of the prominent examples of the Bush administration’s rejection of separation of powers. Your administration must come forward and repudiate all of these doctrines. It must reaffirm the basic framework set out in the Constitution: for virtually any major federal action, two branches of government must be involved. Separation of powers may be inconvenient or even an impediment to executive action, but it is a constitutional imperative.

My fear is that you and your cabinet might find it appealing to have the expansive powers claimed by your predecessor’s administration. But the excesses of the Bush presidency must be renounced and abandoned. No longer should the government claim the ability to detain without judicial review. No longer should the president claim that basic statutes ensuring checks and balances can be ignored. No longer should the president assert that his signing statements trump all legislative history. You should realize that the imperial presidency cannot be reconciled with the United States Constitution.

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