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Tuesday, June 21, 2011

Beldar scoffs at Ackerman's notion of a magical priesthood of special government lawyers

His bio page at Yale tells us that Bruce Ackerman is the "Sterling Professor of Law and Political Science at Yale, and the author of fifteen books that have had a broad influence in political philosophy, constitutional law, and public policy." Prof. Ackerman has credentials out the wazoo, but there seems to be something very wrong with his basic understanding of government, lawyers, and government lawyers. As part of an NYT op-ed decrying Pres. Obama's defiance of the War Powers Resolution, and in particular on Obama's refusal to accept and follow the advice of the Office of Legal counsel with respect thereto, Prof. Ackerman wrote this:

If the precedent Mr. Obama has created is allowed to stand, future presidents who do not like what the Justice Department is telling them could simply cite the example of Mr. Obama’s war in Libya and instruct the White House counsel to organize a supportive “coalition of the willing” made up of the administration’s top lawyers. Even if just one or two agreed, this would be enough to push ahead and claim that the law was on the president’s side.

The premise of that last sentence is spectacularly wrong.

Prof. Ackerman seems to see the government lawyers advising the President as some sort of official priesthood whose special blessings are essential prerequisites to the legitimate exercise of presidential power under the Constitution. And if the wrong priests are being relied upon, Prof. Ackerman seems to believe that this President's actions, and those of future Presidents, may become some sort of legal heresy. Ackerman scolds: "Mr. Obama is creating a decisive and dangerous precedent for the next commander in chief who is unlikely to have the Harvard Law Review on his résumé" — as if that credential has some constitutional significance.

But that's just silly. Whether they're from the Office of Legal Counsel or the Department of Defense any other unit of government, those lawyers are no more than advisers. Neither Barack Obama nor any other POTUS needs even one lawyer to bless what he's done or opine that it's okay — and that doesn't vary a whit based on whether the POTUS is or isn't also a lawyer. It's not that something becomes legal just because the POTUS says so. But the decision of the POTUS is the decision of the executive branch because the Constitution puts the POTUS at the head of that coordinate branch of government — whether the POTUS is backed up by 500 lawyers, one lawyer, or no lawyers at all.

If Ackerman can't grasp and apply the distinction between counselor and principal, he shouldn't be teaching law school — not even at Yale. As another Yale law grad with whom I'm familiar wrote a few days ago:

The President gets to make these calls [as to which lawyers, if any, he chooses to rely upon]. Of course, when the President makes this sort of a call, in a war that never had any sort of Congressional approval, it’s pretty risky — or, if you prefer, “gutsy” — but that choice is the President’s to make, and the political risks are his to run.

Exactly. Obama's taken the position that his administration isn't violating the War Powers Resolution — not because it's an unconstitutional infringement on the POTUS' constitutional responsibilities and powers as commander in chief, but because our military forces supposedly aren't involved in "hostilities." The voters who consider his reelection bid can and should hold him accountable for that ridiculous position (and the overweening vanity which permits him to insist upon it), regardless of whether that position was or wasn't blessed by the particular number and brand of orthodox legal priests upon whom Ackerman thinks all presidents should rely.

Posted by Beldar at 09:13 PM in Foreign Policy, Global War on Terror, Law (2011), Obama, Politics (2011) | Permalink

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Comments

(1) Mike Myers made the following comment | Jun 21, 2011 11:59:32 PM | Permalink

One can ask the question, "Who elected that government lawyer King of the World?" Or you can call him a Grand Vizier or the Great Wizard. The point is that any lawyer is a counselor--not a master and commander. Until they own the danged boat, the boat will go where the owner/skipper steers it.

(2) Milhouse made the following comment | Jun 22, 2011 3:06:17 AM | Permalink

Whether they're from the Office of Legal Counsel or the Department of Defense any other unit of government, those lawyers are no more than advisers. Neither Barack Obama nor any other POTUS needs even one lawyer to bless what he's done or opine that it's okay

Perhaps Mr Ackerman wishes he's in Israel, where the Supreme Court overturned this principle about 20 years ago, and made the servant the master. It held that the government must obey the legal advice of the יועץ משפטי, which means "legal adviser". *

I think the rationale is that all government decisions, without exception, are subject to rational basis review, and failure to obey the OLC's advice cannot be rational. Both dangerous premises, which together have turned the OLC into an effective dictator. Especially since he is also in charge of deciding whether criminal charges should be brought against politicians with whom he deals, and to whom he gives his mandatory "advice".

This sickness is at the root of a lot that's gone wrong with Israel in the last few decades. There are persistent rumours that certain inexplicable decisions that endangered the nation's security were made as part of secret plea bargains with the OLC. And the recent introduction of "lawfare", where commanders in the field must seek legal advice before making their decisions, can be directly traceable to this sick sick situation. I know Shakespeare meant to praise lawyers when he had a gang of villains decide that in order to succeed in their nefarious plot they must first kill all the lawyers. But Israel would be greatly improved by killing all the judges; or at least unbenching them and appointing a whole new batch, who are more loyal to their nation than they are to leftist and internationalist ideology.


* (Though for some reason I cannot comprehend it's always translated by the English-language press as "Attorney General". This is flat-out wrong. An Attorney General is a politician; the cabinet minister in charge of the legal system, need not himself be a lawyer, and is appointed (or in some places elected) on a purely partisan basis. The "Legal Adviser" is a career civil servant or outside lawyer, appointed by the government for a fixed term on a non-partisan basis; indeed, when the first Netanyahu government appointed one as a result of a partisan political deal, this turned into a scandal, and the appointment had to be withdrawn! It's clear to me, therefore, that "AG" is a misleading translation, and the closest US equivalent is the OLC.)

(3) EricPWJohnson made the following comment | Jun 27, 2011 6:32:05 AM | Permalink

Interesting post, as a nonlawyer, throughout my career unfortunately have been put in the position of directly supervising the activities of a great many lawyers. I found out that - like in many professions like accounting or engineering - there are gems, pure gems and there are a great many unfortunate practioners as well.

Lawyers are more visible in their defects as they are more closely associated with public service than other professions so they are exposed more

But there are retards in every profession more than I would like

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