Suchergebnisse

Professor Rebecca Ingber testified at a U.S. House Committee on Rules hearing on March 23, 2021, titled "Article I: Reforming the War Powers Resolution for the 21st Century."

Longstanding debates over the allocation of foreign affairs power between Congress and the President have reached a stalemate. Wherever the formal line between Congress and the President's powers is drawn, it is well established that, as a functional matter, even in times of great discord between the two branches, the President wields immense power when he acts in the name of foreign policy or national security. And yet, while scholarship focuses on the accretion of power in the presidency, presidential primacy is not the end of the story. The fact that the President usually "wins" in foreign affairs does not mean that the position the President ultimately chooses to take is preordained. Questions of foreign policy and national security engage diverse components of the executive branch bureaucracy, which have overlapping jurisdictions and often conflicting biases and priorities. And yet they must arrive at one executive branch position. Thus the process of decision making, the weight accorded the position of any given decision maker, and the context in which the decision is made together shape the ultimate position the President takes. This Article explores and critiques the foreign policy role Congress can—and does—play in structuring and rearranging the relative powers of those internal actors and the processes they take to reach their decisions, in order to influence and even direct the President's ultimate position. Having yielded much of the ground on substance, Congress has an opportunity for a second bite at the apple, and may influence the policy directions of the presidency by manipulating its internal workings. There are risks to deploying "process controls," as I term these measures, in lieu of direct substantive engagement, but I argue that Congress can and should use these tools more instrumentally to influence the course of foreign policy in areas where it is otherwise unlikely to assert itself as a coequal branch and necessary check on presidential power.

Modern accounts of the national security state tend toward one of two opposing views of bureaucratic tensions within it: At one extreme, the executive branch bureaucracy is a shadowy "deep state," unaccountable to the public or even to the elected President. On this account, bureaucratic obstacles to the President's agenda are inherently suspect, even dangerous. At the other end, bureaucratic resistance to the President represents a necessary benevolent constraint on an otherwise imperial executive. This account hails the bureaucracy as the modern incarnation of the separation of powers, an alternative to the traditional checks on the President of the courts and Congress, which are faulted with falling down on the job. These "deep state" and "benevolent constraints" approaches to bureaucratic behavior track debates in the scholarship over the legitimacy of the administrative state more broadly, and are used as rhetorical devices to challenge or defend current allocations of power. These accounts lead, respectively, to fear of or over-reliance on bureaucratic resistance—which I define here broadly as action or inaction within the executive branch that hinders executive movement—as a means of checking Presidential power. Fear of bureaucratic resistance results in an erosion of valuable internal checks on the President. Alternatively, over-reliance on these internal checks may result in complacency, and an abdication of responsibility by the traditional external checks, namely members of Congress and the courts. Both approaches result in an insufficiently constrained President, which should concern most advocates and opponents of the administrative state. This Article seeks to navigate the tension between these approaches in order to craft a more realistic account of bureaucratic resistance, divorced from substantive views about the policies or President at hand. This account suggests that critics of the bureaucracy underestimate the extent to which bureaucrats wield formal authority well-tethered to politically accountable sources. And both critics and champions of bureaucratic resistance overestimate the extent to which bureaucrats exercise functional power free from practical constraint. Ultimately, the bureaucracy is neither all-powerful nor unaccountable. While it plays an essential—and endangered—role in the modern separation of powers, it is neither the threat that some fear, nor the holistic cure to a President who is.

Welcome to our fantastic panel. I am Rebecca Ingber. I am an associate
professor at BU Law School, and I am going to be your host today. We are
doing this panel in a little bit of an unusual style. Our panel is "Military
Commissions: Are they Lawful? Are they Worth It?" If you did not intend to
come hear the answer to that question, you are in the wrong place. Feel free
to file out, but as though do, feel free to take the empty seats in the
middle here.

Executive branch officials rest the President's authority in today's war against ISIS, al Qaeda, and other terrorist groups on an expansive interpretation of a 15-year-old statute, the 2001 "Authorization for Use of Military Force" (AUMF), passed in the wake of the 9/11 attacks. They rely on that statute to justify force against groups neither referenced in – nor even in existence at the time of – the 2001 statute, by invoking a creative theory of international law they call "co-belligerency." Under this theory, the President can read his AUMF authority flexibly, to justify force against not only those groups covered by the statute, but also new groups that "join the fight." In relying on "co-belligerency," executive branch officials maintain that the President's authority is bound by a clearly constraining rule with an established legal pedigree, but the co-belligerency theory does not in fact deliver on either. Instead, the Executive's position is fluid, evolving, internally contested, and – contrary to the assurance that it has a firm foundation in international law – rests on shaky doctrinal grounds. In fact, the record suggests that executive branch officials are not even unified themselves on what the concept means or where it comes from. And yet the existence of this contested idea nevertheless acts as some impediment if not a barrier to executive action. It is, in effect, a grey-ish legal space, dangerously close to what David Dyzenhaus has called a "legal grey hole," a mere "façade" of legal constraint. This article presents a story of a creative idea that became entrenched law, but in the process lost much of its shape. The result has been neither a clear limit on Presidential power, nor an executive branch run completely amok, but rather an amorphously-defined pool of discretionary authority for the President that few if any fully understand.

As we contemplate the incoming presidential administration, we stare ahead into uncharted space. It may seem as though recent history leaves us unprepared for what lies ahead. What can a discussion of the Obama war powers legacy, and the transition from the Bush to Obama administration, tell us about a transition from Barack Obama to the next president, and beyond?Yet there are lessons here. Noone can predict precisely how the president-elect and the team that is installed will confront the rule of law or grapple with the bureaucratic norms that I discuss in this paper. But systemic forces exist inside the executive branch that influence presidential decision-making in each modern administration and, barring a total reimagining of the executive branch, will operate on administrations to come. These internal forces include mechanisms and norms that fall within two broad categories: (1) those that favor continuity and hinder presidents from effecting change, and (2) those that incrementally help ratchet up claims to executive power.

Recent years have seen much speculation over executive branch legal interpretation and internal decisionmaking, particularly in matters of national security and international law. Debate persists over how and why the executive arrives at particular understandings of its legal constraints, the extent to which the positions taken by one presidential administration may bind the next, and, indeed, the extent to which the President is constrained by law at all. Current scholarship focuses on rational, political, and structural arguments to explain executive actions and legal positioning, but it has yet to take account of the diverse ways in which legal questions arise for the executive branch, which have a significant effect on executive decisionmaking. This Article adds necessary texture to these debates by identifying and exploring the role of distinct triggers for legal interpretation - which this Article terms "interpretation catalysts" - in driving and shaping executive branch decisionmaking, particularly at the intersection of national security and international law. Interpretation catalysts impel the executive to consider, crystallize and potentially assert a legal interpretation of its obligations under domestic or international law on a particular matter, and they can both impede and facilitate change within the executive. Examples of interpretation catalysts include such diverse triggering events as decisions whether to use force against an armed group; lawsuits filed against the U.S. government; obligatory reports to human rights treaty bodies; and even the act of speechmaking. Each of these unique catalysts triggers a distinct process for legal decisionmaking within the executive, and is instrumental in framing the task at hand, shaping the process engaged to arrive at the substantive decision, establishing the relative influence of the actors who will decide the matter, and informing the contextual pressures and interests that may bear on the decision, and thus shapes the ultimate substantive position itself. These distinct mechanisms for decisionmaking each carry their own individual pressures and biases; thus in laying bare the interpretation catalysts phenomenon, this Article demonstrates potential avenues for actors inside and external to the executive branch to predict, to explain, and even to affect executive decisionmaking. This Article will explore the effect of interpretation catalysts on executive legal interpretation, and address some of the implications of this phenomenon for scholars, private actors, courts, and executive branch officials.