Presidential Power

From Drones to Drachms

By Michael McCullough

From the very beginning of the Republic, Americans have always delighted in accusing their chief magistrate of having totalitarian ambitions. With extraordinary derisiveness, every president since FDR has been called a “fascist” for alleged subversion of the Constitution, even in spite of Orwell’s observation in 1944 that misuse of the term had rendered it “almost entirely meaningless.” As a result, it’s become tradition for the wielder of power to be regarded with mistrust, a disagreeable but perhaps necessary state of affairs for both president and people.

Thus, it’s not surprising to find two very different demonstrations of the royal prerogative being criticized in recent weeks: the use of drones to kill Americans and import restrictions on ancient coins. And if you are remotely interested in the proper functioning of our government, each example provides ample opportunity for evaluation and reflection.

It is widely known that the “executive power” of the President enumerated in Article II of the Constitution was meant to create a strong executive. The Framers of the Constitution, who lived through a disastrous government under the Article of Confederation, viewed legislative government as too fragmented and episodic. It’s less known that the role of the Federal courts in explicating constitutional law is mentioned nowhere in the Constitution. Judicial review of executive and legislative actions was created out of whole cloth by the Supreme Court itself in the famous case of Marbury v. Madison. And since the power of the courts constitutional review is not structural to the Constitution but only a practical condition upon its successful operation, it need not be exercised whenever a court perceives an invasion of the Constitution. Courts always consider the threshold question of how importunately the occasion demands an answer. Sometimes it’s better to leave the issue to be worked out without an authoritative solution and other times the circumstances require a decision.

Recently, the Department of Justice released a “White Paper” on the legality of killing American citizens who are believed to be “senior operational leaders” of al-Qaida or “an associated force.” Despite the obvious vagueness of terms that leaves one wondering how remote the “association” need be to avoid the breach, the central concern here is use of executive power without some form of judicial review.

The United States after September 11th, our “Homeland America,” has new structures of constitutional democracy created by the Bush the Younger and Obama Administrations. In consequence of this, people have been denied rights that have long been regarded as fundamental, giving rise to indefinite, incommunicado detention, torture and abuse, and the denial of a fair chance to contest life-and-death charges.

The “White Paper,” written by government lawyers, makes a pointed but unsubstantiated case for an unconstrained executive, necessary to deal with the security threats of today’s world. This new view sees terrorism and associated threats to Homeland America as qualitatively different from past security threats. As a result, a more flexible kind of “executive power” is required; one that cannot be readily accommodated within the traditional scheme of judicial and legislative oversight. As it turns out, the unique qualities of “executive power”- what Hamilton described in the Federalist Papers as the capacity to act with “decision, activity, secrecy and despatch” – are unique and essential advantages in this new world. And the nature of warfare against these new enemies relies more on intelligence gathering and covert action, so waiting for the courts or Congress to review or ratify executive action may compromise America’s ability to defend itself.

The problem with this new theory of executive power is that neither the nature of structural constitutional interpretation nor the security policy premises on which these claims are based support the case for the kind of expansive executive power found in the “White Paper.” Fundamentally, a theory of structural constitutionalism should not depend so heavily on something as transitory as the security threat du jour. It is also difficult to understand how these security threats are so very different from those faced before, and even if they are, one could easily conclude that unchecked “executive power” is not an effective means to meet them.

For the purpose of contrast, the President’s imposition of import restrictions on ancient coins provides a more traditional look at “executive power.” Last week, the Ancient Coin Collectors Guild filed a Petition of Certiorari asking the Supreme Court to review the lower courts’ failure to conduct a “political question” analysis of the President’s actions before dismissing the Guild’s complaint.

Three years ago, the Guild filed its lawsuit alleging that the government failed to comply with specific statutory requirements of the Convention on Cultural Property Implementation Act (“CPIA”). The CPIA imposes certain procedural and substantive constraints on the President’s authority to impose import restrictions on cultural objects. Over time, the President’s authority was delegated down to the Assistant Secretary of State, Bureau of Educational and Cultural Affairs of the State Department. Once the State Department authorized import restrictions on coins from Cyprus and China, U.S. Customs and Border Protection published regulations in the Federal Register imposing those import restrictions.

After briefing and oral argument, the district court dismissed the case without allowing any discovery, prompting an appeal. On appeal, the Guild asked the circuit court to rule that the district court had the authority to review the President’s action and that any import restrictions on coins must be written to comply with the plain meaning of the CPIA (N.B., This correspondent represented three coin organizations in filing an amicus curiae brief in support of the Guild). The court of appeals declined the Guild’s request, saying that anything but the most cursory review of the Federal Register “would draw the judicial system too heavily and intimately into negotiations between the Department of State and foreign countries.”

The Guild wishes to address the Supreme Court to argue that the power and duty to decide constitutional disputes was accepted by the judiciary in Marbury v. Madison. Moreover, the Supreme Court decided over a quarter of a century ago, in a case called Japan Whaling Association v. American Cetacean Society, that “one of the Judiciary’s characteristic roles is to interpret statutes, and [it] cannot shirk this responsibility merely because of the interplay between the statute and the conduct of the Nation’s foreign relations.” And if the Supreme Court agrees, then the Guild will ask the Court to direct the court of appeals to apply the “political question” analysis enunciated in Baker v. Carr, which says that a court can decide to review a presidential decision by applying “a discriminating analysis of the particular question posed, in terms of the history of its management by the political branches, of its susceptibility to judicial handling in light of its nature and posture in a specific case, and the possible consequences of judicial action.”

The “particular question” posed by the Guild is quite narrow: whether the Government promulgated and applied import restrictions on coins in compliance with the CPIA. Courts have ample experience in determining whether a specific grant of power by the legislature is being followed by the President. This matter, argues the Guild, is thus well within the competence of a court to handle. Furthermore, the court of appeals’ dismissal of the Guild’s case because it touched on “foreign policy,” but without performing any further analysis of the particular legal issue actually before the court, places its decision making squarely at odds with that of the Supreme Court and other federal appeals courts, which have applied the “political question” analysis found in Baker v. Carr in a “foreign policy” context. Under these circumstances, the Guild asks the Supreme Court to grant certiorari to secure and maintain the applicability of its decisions by bringing the court of appeals and the two other circuits that have not addressed the issue into line with the decisions of the Court.

While I doubt that Mr. Obama is giving this case much thought, it’s equally doubtful that Supreme Court will ever get another case presenting less benign “consequences of judicial action.” Although, I wouldn’t be taking any bets on the Guild’s chances of getting through the golden doors, as the Supreme Court accepts a mere 1-2% of the cases submitted on appeal. However, the odds get considerably better once the doors close behind the Guild; the Supreme Court has reversed or vacated this court of appeals in 61% of past cases.

But no matter what happens in these two instances, the traditional view of “executive power” is not apt to be revived anytime soon. The portentous reluctance of the judiciary is not more use to us than the capriciousness of our legislators who are constantly trying to figure out what the next “serious” security threat will be when it is plain that the next “serious” security threat is their own stupidity.

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About mcculloughllc

Michael McCullough has extensive experience in art, cultural heritage, and international trade matters. He is a former associate counsel to Sotheby's worldwide where he advised the company on the sale and financing of fine art, the decorative arts, cultural property, antiques, jewelry and special collections. Mr. McCullough is credited with the development and implementation of global policies and procedures related to the acquisition for consignment and sale of some of the greatest artworks in the world. Mr. McCullough is also experienced in U.S. Customs regulations, international trade agreements, export controls, economic sanctions constraints, anti-corruption rules, U.S. Fish and Wildlife regulations, and other government agency requirements. Mr. McCullough has represented clients before U.S. Customs and Border Protection, the Department of State, Immigration and Customs Enforcement, the U.S. Fish and Wildlife Service, the Food and Drug Administration, the United States district courts and the Court of Appeals for the Second and Fourth Circuits.
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