Bickel, Jackson – and Bush

Adrian Vermeule, co-author with Eric Posner of Terror in the Balance: Security, Liberty, and the Courts, is a Professor of Law at Harvard Law School. Their book looks at the cycle of lawmaking during emergencies and argues that when governments strive to increase national security they should be given wide latitude to adjust policy and liberties in times of emergency and war. Vermeule also wrote for the blog last week, check it out here.

Recently the Bush administration has submitted its warrantless surveillance program to examination by
the Foreign Intelligence Surveillance Court, after maintaining vigorously that it need not do so. It is unclear what, exactly, the administration is asking the Court to do, and the administration refers obscurely to “new legal developments”; but let us suppose that at least part of the administration’s motive is to avoid a judicial and legislative test of the program’s legality, by rendering litigation moot and dampening the impetus for congressional oversight. In litigation over the detention of enemy combatants, the administration has sometimes pulled off a similar maneuver, as when it transferred Jose Padilla from military detention to the criminal justice system in order to moot pending litigation. Many critics find these actions objectionable. Are they?

Sometimes the critics complain that the administration dilutes its credibility when it advances a legal position in public debate, encourages its defenders to speak up, and then changes course by avoiding a legal showdown. If the complaint, however, is that the administration has miscalculated the political costs and benefits of changing its course, one wonders why the critics are better positioned to make that assessment than is the administration itself. Critics who make this objection say little about the benefits of changing course, such as eliminating the risk of bruising oversight in Congress or a humiliating defeat in the courts. Politically, it seems quite rational to think that the benefits outweigh the sacrifice in credibility.

More interesting is a different objection: that the administration has violated constitutional norms and evaded accountability by ducking a formal judgment on the legality of its programs. On this view, because the administration’s “goal is to prevent a court from stating clearly that the President acted illegally and that his theories of executive power are self-serving hokum”, the administration is akin to a neighborhood bully who backs down from a challenge. Private litigants can generally settle cases to avoid creating an adverse precedent, but not always, because precedents are a type of public good rather than private property. In any event, the executive branch is no ordinary private litigant, and has higher obligations.

Another perspective, however, is that the administration is acting just as Congress and the courts themselves have historically acted. Congress has often avoided a showdown with the executive branch over the constitutional allocation of the power to make war and other national security powers. The pattern is repeating itself today, as the new Democratic Congress is so far avoiding a direct confrontation with the President over the deployment of troops in Iraq.

As for the judges, when facing a rampant Reconstruction Congress in the aftermath of the Civil War, the Court in several cases resorted to dubious procedural rulings to avoid having to pronounce on the legality of legislative measures – in part because invalidation of those measures would have resulted in retaliation, and perhaps severe political damage to the Court itself. And after Brown v. Board of Education, the Court avoided ruling on the validity of anti-miscegenation laws for more than a decade, fearing that a legal showdown would require either upholding those laws, or else would result in an invalidation that would prove politically intolerable to an inflamed public, especially in the South.

Many legal theorists have thought that the Court followed the proper course in these situations. Alexander Bickel famously praised the Court for exercising “the passive virtues” by taking a third way, neither upholding nor invalidating politically controversial laws. In the context of wars and emergencies, Justice Robert Jackson, in a famous opinion in the 1944 Korematsu case, urged the Court to avoid ruling on the validity of Roosevelt’s military orders that interned Japanese aliens and Japanese-Americans. Jackson seems to have thought that approving the orders was constitutionally and morally objectionable, while invalidating them was politically impossible; the better part of valor was to avoid the issue altogether, in part to avoid creating a damaging precedent that would “lie around like a loaded gun.”

On this view, the administration is acting in the best traditions of Bickel, Jackson and the Court itself. By avoiding a final test of its power to detain citizens like Padilla, or to engage in warrantless surveillance, the administration avoids creating precedent when the political winds are blowing against it; that sort of precedent would lie around like a loaded gun to be used against the executive in the future. Mooting the issues leaves the law of executive emergency powers in the state of twilight uncertainty that Jackson praised in Korematsu, and allows the administration to fight another day in better circumstances — the same plan that the Court followed after Reconstruction and after Brown v. Board. What’s sauce for the judicial goose is sauce for the executive gander.