POLITICS JULY 1, 2011
Harold Koh and John Yoo are two peas in a pod, except that Yoo is the right-wing pea and Koh is the left-wing pea. Yoo, a Justice Department lawyer during the Bush administration, interpreted “torture” narrowly in order to advance a constitutional agenda in which executive power has primacy. This interpretation permitted the Bush administration to use harsh interrogation tactics on suspected members of Al Qaeda. Koh, the legal adviser for Obama’s State Department, has now interpreted “hostilities” narrowly in order to advance a constitutional vision in which international norms and institutions play a role. Under Koh’s interpretation, Obama can keep troops in Libya despite apparently contrary provisions in the War Powers Act.
Many observers assumed that Koh and other lawyers appointed by Obama would repair the damage to the rule of law caused by Bush lawyers like Yoo—not follow in their path. Yet now, both Yoo and Koh have kicked up dust storms among law professors and other commentators who believe that the two lawyers distorted the meaning of a clear statute in an obvious way, and hence in defiance of Congress. These critics, however, are misguided.
Why did Yoo, and then Koh, who once belonged to the chorus of critics of Bush’s lawyers, act the way they did? There is no evidence that either of them sought to curry favor with his president. Yoo, for one, advanced views that he had published in academic articles before he entered the Bush administration. Koh’s case is a bit more complex; he was a strident critic of executive power during the Bush administration, and yet now, he appears to endorse presidential power. But Koh is also a long-time proponent of international institutions like the United Nations and believes that the United States should advance international humanitarian norms. His previous scholarship never acknowledged the tension between holding the executive to Congress’s foreign policy agenda (which is rarely internationalist) and advancing international law (which is something that only the U.S. executive has ever really cared about). Now, though, as a lawyer in the State Department, the internationally oriented agency of the executive branch, Koh is unsurprisingly resolving this tension in favor of the executive and international law. His legal advice to President Obama emphasized that the U.N. had approved the Libya intervention and that the effort had been undertaken for a humanitarian purpose.
I take no position on whether Yoo and Koh’s interpretations reflect the best readings of the statutes in light of constitutional norms. My point is that Yoo and Koh’s critics hold an idealized view that Congress passes the law and the executive merely executes it; this is something like the original Madisonian theory that animated the Constitution. But the process has never actually worked that way. The executive participates in the law-making process as a necessary consequence of its unique power to execute the law. In order to execute the law, one must interpret it; and, in the course of interpreting, one’s own political and institutional interests will play a role in determining the meaning of the original statute. Thus, the law everywhere bears the imprint of the executive. In domestic law, this point is hardly controversial. Under the famous Chevron doctrine established by the U.S. Supreme Court, courts defer to reasonable interpretations by the executive branch of ambiguous regulatory statutes. This is why environmental law reflects as much the policy choices of the executive branch as the original intention of Congress.
In foreign relations, where Koh and Yoo come in, a similar point has also always been recognized. Chevron does not formally apply to the War Powers Act, because that statute does not explicitly delegate authority to the executive, but the courts have for a long time followed a similar tack of deferring to executive interpretations of statutes and treaties that touch on foreign relations. Congress does not have the institutional capacity or motive to direct foreign policy and thus traditionally has given the executive broad leeway. Where Congress has tried to micromanage, the executive has almost always resisted.
Usually, the executive does not defy Congress outright; instead, it interprets ambiguous statutes aggressively in line with the executive’s view as to what should be done. But the executive has also staunchly maintained that its constitutional authority to conduct foreign relations cannot be overridden by Congress. It has typically chosen to advance narrow interpretations of the law rather than to insist that various statutes are unconstitutional, in order to avoid an explicit showdown with Congress over constitutional norms. The most famous example was Attorney General Robert Jackson’s opinion during World War II that the U.S. government could trade destroyers for leases on British bases, which was grounded in an extremely narrow and (to most lawyers) implausible interpretation of various laws that required the United States not to arm belligerents.
Critics of Koh and Yoo are really critics of this whole line of executive practice, which extends back through U.S. history. They may reasonably fear an out-of-control executive, but it is important to recognize that it is the critics who want to change the status quo, and it is unfair to expect executive-branch lawyers to take the lead in forcing the president to give up his traditional legal authority.
The question now is whether Congress, other U.S. institutions or officers, or the public will try to force President Obama to back down. (This is the way that disputes between Congress and presidents are actually resolved.) All indications so far are that the answer to this question is no. The House voted down the resolution to defund the Libya intervention, while a Senate committee has voted to authorize it. There are just not the votes to compel the president to withdraw from Libya, and, although public support for the intervention has declined, that reflects not concerns about the legality of the war but about its prudence. Once again, in the area of foreign relations, the president’s authority prevails.
Eric Posner teaches at the University of Chicago Law School and is coauthor of The Executive Unbound: After the Madisonian Republic.