Presidential Legacies

In our country’s history there have been many great men who have sat in the Oval Office, leaving behind legacies to be printed in history books and taught in classes for years after they are gone. However, on the other hand there are many more men who have sat in the same seat that have been forgotten and if you were to hear their name you would not recognize it as being the leader of the most powerful country in the world. It is true that great legacies come out of times of hardships, war, and great change, so for some presidents who sat in office in times of peace and stability they didn’t leave behind any notable legacy. President Lincoln who faced a very difficult presidency is known for his great leadership and ability to hold the country together even when it was amidst a succession.

Many scholars say that there are two versions of the presidency that a president will experience, the first is the active one, where he deals with current issues and unplanned problems. The second, is the one that we actually remember, just highlighted details and a vague summary of events.

President Obama’s legacy will have several notable highlights, one of which will be the Affordable Care Act. The ACA was a monumental win for the Democrats and will definitely find a place in history books and classrooms. But it wasn’t all smooth sailing, the ACA was put to the test twice by the Supreme Court. The fate of Obama’s great legacy was in the hands of nine black robed individuals; and Obama knew it.

In 2012 the Supreme Court first heard National Federation of Independent Business v. Sebelius and decided 5-4 that the Affordable Care Act legislation was constitutional under Congress’s power to tax. They also ruled that it was unconstitutional for the government to pull Medicaid funding to states who did not participate in the expansion. Then in 2015 the Court heard King v. Burwell the court upheld a challenged provision of the law that outlined tax credits to individuals in the states. Thus the Affordable Care Act has survived two Supreme Court cases and looks like it will be a part of President Obama’s legacy in the years to come.

Constitutional Avoidance

This week I will be looking into what constitutional avoidance is and how it relates to the executive branch. The avoidance doctrine, also referred to as constitutional avoidance or avoidance canon, and is used in Constitutional Law. The canon dictates that federal courts should not rule on constitutional issues if the case can be answered in a non-constitutional way. This doctrine comes out of judicial self-restraint and is brought up in discussions about judicial power. However judges do not simply dismiss the case, first they must have a preliminary discussion on the whether or not their is a constitutional question at all in the case.

The Avoidance Canon has also been used as by the courts as self-protections like in  INS v. St. Cyr for example. In this case Congress attempted to strip the courts of certain powers and jurisdictions and to remedy the issue the Supreme Court enacted the avoidance canon.

One of the articles that I looked at was from the Columbia Law Review, which I will link below, and it questioned if the executive branch should practice the same methods of avoidance of which the courts use. Morrison listed several instances in our recent history where the constitutional avoidance doctrine was used by the executive. Here are some of the examples, most of which you have probably heard of, “the initial torture memorandum issued by the Justice Department’s Office of Legal Counsel, the President’s signing statement regarding the McCain Amendment’s ban on the mistreatment of detainees, and the Justice Department’s defense of the National Security Agency’s warrantless wiretapping program.” However, the question isn’t how it has been used, but if the executive branch should have the power at all.

It is understandable for the courts to have this power but does it also include other branches of government? Or is the executive overstepping its power? I think that this is an interesting topic to further investigate because it covers a lot of issues that are important to the entire nation. When the wiretapping controversy first came out, there was a lot of coverage on the developments. The public was very attentive to the information being relayed and people are still very concerned about how it was being handled by the government. Now should issues like this be subject to constitutional avoidance? I am not sure, but I do think that it is a serious conversation to be had.

Ultimately Morrison concluded that several factors go into deciding whether or not the avoidance doctrine justly resides within the executive. For one, many people do not believe that it is in the courts jurisdiction to practice the canon. Therefor, it has no place in the executive. Among the people who agree with the jurisdiction, there is room for interpretation.

Constitutional Avoidance in the Executive Branch by Trevor W. Morrison http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1045&context=lsrp_papers

Another article that I looked at was Constitutional Avoidance, Step Zero by Anthony Vitarelli from the Yale Law Journal

Executive Privilege

This week I would like to discuss Executive Privilege; what it is and how it has changed over the years. The basic idea of executive privilege is that it it grants constitutional power to the president and other members of the executive to withhold information from congress. The fascinating part of this privilege is that it is not written in our constitution, however to many ordinary citizens this idea probably seems common place. Executive privilege is an idea that I have heard about and was aware of but when I decided to research it for discussion I realized it indeed was not mentioned anywhere in the constitution. This constitutional principle is derived directly from a long history of precedent. A precedent embedded enough into our society that some people assume it part of the constitution. This is not to say it has gone unchallenged, many scholars actually reject this principal and argue that it does not exist. Some arguments have even been laid out in Supreme Court case hearings like in Mississippi v. Johnson, the petitioner stated that the president is not above the law and that the Supreme Court has judicial power over all cases under the constitution, not excluding the President. In Nixon v. Fitzgerald it was argued that the checks and balances system advises against the idea of absolute immunity and if absolute immunity does exist then the presidents actions must be defended to be within his authority.  The last argument was presented again in Clinton v. Jones, which acknowledged precedent for immunity, but rejected personal privilege for civil suits or otherwise unrelated to presidential duties. From these few examples we can see that this precedent has been challenged, but in many ways has been upheld with of course limitations being imposed. There has clearly been a balancing act between the branches to create clear, fair, and constitutionally sound precedent. Which seems fairly laborious, it would make more sense if there were legislation passed to clearly define what this power would and would not protect. Even thought the conversation has come up in Congress no initiatives have ever been made.  Maybe the next time that a case is brought forth there will be more motivation to develop a statute. Which we may not see for a while since in recent years presidents have refrained from flexing this privilege for the past controversies surrounding it. This power is mainly associated with political scandals and administrations do not want to be caught up in the wrong image. Overall I think that this is an interesting example of how our government works around issues not explicitly set out in the constitution and that are not clearly defined by the Supreme Court.

An interesting article that I read while researching this topic was The Constitution and Executive Privilege by Mark Rozell which can be found here: http://www.libertylawsite.org/2012/07/12/the-constitution-and-executive-privilege/

Rozell also wrote an article called “The Law”: Executive Privilege: Definition and Standards of Application that was in The Presidential Quarterly 

Overview of Blog

After looking over the topics that will be covered in class I decided to focus my blog around The Executive Branch and Presidential powers. This is a broad topic that will allow me to go in depth with different topics each week and I hope to tie in other readings that we do in class and see how those other broad topics may influence and/or interact with The Executive Branch. Last semester I took a class on The Presidency, which I enjoyed very much, so I am excited to bring my prior knowledge into the blog and see what new discussions and ideas I can explore. Some possible topics which I could explore are, how presidential powers have developed over the years? How the Executive Branch interacts with the other Branches of government and how that relationship has changed? What are the catalysts for these changes? I am also interested in learning more from the assigned case readings specifically because they are a resource that I do not use very often.