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Tortured Defenses of Obama's Presidential Power

1:05 PM, Jun 3, 2014 • By ADAM J. WHITE
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Unsurprisingly, legal scholars criticized this reasoning vehemently. In a widely-read series of Harvard Law Review articles, professors David Barron and Marty Lederman criticized the administration for using this method of statutory interpretation to "avoid" the constitutional issue:

In some cases, the Administration has used this principle [i.e., the principle of inherent president powers] not only to conclude that a statute was unconstitutional, as such, but also as a justification for adopting extremely strained interpretations of statutory constraints so as to avoid allegedly serious constitutional questions. 

Barron and Lederman added that the OLC's approach was constitutionally problematic in and of itself because, they argued, it fell far short of the president's constitutional duties to uphold the law: 

"It is a very interesting and important question whether and when such statutory creativity is consistent with the President’s constitutional obligation to faithfully execute the law." See Posting of Marty Lederman to Balkinization, http://balkin.blogspot.com/2006/07/chalk-on-spikes-what-is-proper-role-of.html (July 4, 2006, 11:28 EST) …

In a separate blog post, Lederman also mocked the notion that the Bush administration's interpretation of Congress's intent actually reflected reality:

[A]s far as I'm aware no one in Congress has been persuaded by the Administration's statutory argument: It was dead on arrival. As Senators Graham and Specter, among others, have explained, they were present at the negotiation and enactment of the AUMF, and they guarantee that neither they nor their colleagues intended to authorize the sort of circumvention of FISA that the Administration has been engaged in for the past five years. (Attorney General Gonzales's testimony, in response to Graham's explanation to this effect, was basically that Congress unknowingly authorized a major restructuring of a central framework statute, and that actual legislative intent is irrelevant. You can imagine how well that notion went over in Congress.)

Although the Bergdahl-terrorist swap came to light only a few days ago, it is safe to say that criticism of the Obama administration's assertions of executive power have been, let's say, rather muted. David Barron is not going to comment anytime soon, but for good reason: He's now a judge on the U.S. Court of Appeals to the First Circuit, after serving in Obama's OLC (where he authored controversial memos defending the president's use of drones to kill an American terrorist recruiter). 

Meanwhile, Barron's co-author, Marty Lederman (who also was appointed to Obama's OLC) has proffered a few comments in support of the administration, on his blog.

(To be clear, Lederman urges that he's not actually defending the administration, but rather just analyzing the administration's analysis. It's worth noting that when other professors attempted similar "non-defenses" in the Bush years, Lederman was less than impressed by such distinctions.)

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