Writing ... with Intent

During the Clinton administration, Doug Kmiec wrote a sharply worded critique of President Clinton's reading of the law in some of his Executive orders: I am a defender of executive power. No one who has headed the office of legal counsel, designed to preserve the office of the presidency, could be otherwise. But defending the constitutional parameters of presidential power is fundamentally different from defending assertions of power inclined toward excess or abuse. . . . The duty of the president is to faithfully execute, not invent, the law. Yes, the extent of executive power can be debated, and yes, some political scientists complacently claim that all modern presidents have pressed or exceeded the boundaries of Article II authority. Yet those sworn to "taking care" of the execution of the law must be held to a high standard. This could be (and was) read by me as a condemnation of the Unitary Executive Theory; one would expect this from essays written by someone with any connection to the Cato Institute. In reality, however, it is simply partisan politics. Read this article in the Washington Post. In it, we find a dogmatic defense of the current administration, even to the extent of approving of UET. It is possible that Kmiec believes that the "constitutional parameters of presidential power" do not govern war, torture, personal privacy, and habaes corpus. Much more likely is the possibility that Kmiec is just defending his preferred political junta. As Marty Ledermen says: ...if Doug believes such strong criticisms were apt in the case of some Clinton Executive orders that were of relatively modest import - and that were publicly promulgated and defended - then perhaps he and others who were so quick to criticize the alleged constitutional deficiencies of the Clinton Administration (see, e.g., Ted Olson's chapter in the same volume) might apply just a bit of that same scrutiny to the much more profound constitutional crises that we now face. Where's that "high standard" now that we really need it? I don't mean to suggest that the "you did it, too" defense is at all permissible; rather, I mean that Kmiec's initial criticism of UET in the Clinton era was appropriate, and the current administration should see the same scrutiny. This President's (supposed) constitutional understanding is that he should do whatever he thinks is best for the security of the nation if any legal justification can be articulated for it, as long as that justification is somewhere within a very wide range of what is deemed legally "reasonable." A presidential position like this would certainly have drawn the ire of Doug Kmiec circa 1998. Strangely, he is much more subdued on the topic now. Sandy writes a post with a similar flair to Lederman regarding UET, stating: The problem is not that the President is the final decisionmaker within the Executive branch, but that he has adopted this highly contestable notion of what it means to take care that the law is executed faithfully -- and has done so in a manner that virtually guarantees that his decisions are unreviewable, uncheckable. This is one of the major dangers of the UET. Beware critical journalists; they are seldom enemies of state power.