Executive power

The Supreme Court Holds Up the Chrysler Sale

I actually decided to write a short piece stating my hope that the Supreme Court would look into Obama’s and Bush’s expansion of executive powers in tackling the financial crisis before the Supreme Court delayed the sale of Chrysler to Fiat. Now that they have, I’m relieved if a bit nervous. The key issue is the use of executive power in a crisis – as Michael J. de la Merced explained the issue:

In a broader context, such a decision would also give the justices an early opportunity to consider the scope of the wide-ranging but not unlimited authority that Congress granted the president to address the economic crisis.

I think this is a good thing – though I’m not sure how the timing of this will affect things. Generally, the strongest decisions restricting the executive’s freedom in a crisis have come after the crisis has past. With the rash of bad news on the economic front – even as most indicators seem to be levelling off – this financial crisis is not yet over. On the one hand, strong action by the Court at this time to curb the power of the president could destabilize the economy, as it is confidence in the power and determination of the executive branch and the Federal Reserve to backstop the financial system that seem to have restored confidence in the market and economy itself. At the same time, the Supreme Court is less likely to challenge the president’s authority in the middle of a crisis – making it more likely the decision will be deferential.

It is possible that all of these competing claims could be dealt with responsibly – with a Solomonic decision along the lines of Marbury v. Madison. It’s also possible that the Court may find Presidents Bush and Obama both acted constitutionally in their response. But as a matter of policy, the recent government interventions into the market are ill-advised if they extend beyond the minimum amount of time. As I wrote regarding Obama and the Rule of Law:

The power of the executive branch has grown enormously in the financial crisis – between the Stimulus Bill and the bank bailout. While in the short-term this may be necessary, if steps are not taken, this would undermine the balance of power between the federal government and the states. While this in itself is not a violation of the Rule of Law – it does weaken the system which together helps maintain the Rule of Law.

The one issue that strikes me as worth considering – on matters of constitutionality rather than policy – is whether or not Bush and then Obama acted within their powers in providing loans to Chrysler and General Motors; perhaps a Court should also look at the broad authority given by the TARP bill itself and set some standards regarding what authorities and monies can and cannot be extended to the executive branch by the legislative.

The whole process of drafting and passing the TARP bill was obviously flawed – though it’s difficult to judge legislation passed in the midst of a crisis. The only logical way out of this I’ve heard mentioned would be to “stockpile laws” as Philip Bobbitt once suggested with regards to terrorism.

But even as there is a flawed process, it’s not clear what if anything was unconstitutional.

At the same time, I’m glad to see the Court looking seriously at getting involved. I’m all for these checks and balances.

My opinion of Judge Sotomayor hasn’t changed much since last week’s announcement. The right-wingers attempts to tar her as a racist bug me. But not all that much. The particular sentence they keep repeating is – without context a racist remark:

I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life. [my emphasis]

Within the speech she was giving though – when she made this remark – she seemed to be making a similar, but different point:

I would hope that a wise Latina woman with the richness of her experiences would as often as not reach a better conclusion than a white male who hasn’t lived that life.

It does seem – as Barack Obama said – that her original speech contained one sentence that was poorly phrased to convey the point she was making.

I agree with the many out there who think the right-wingers are hurting the Republican Party by making Sotomayor’s nomination about race.

The two areas that might potentially trouble me about Sotomayor are in the areas of executive power and civil libertarianism. She’s probably in the mainstream of the conservative/liberal consensus on these issues – which is an improvement over the right-wing extremism on these issues evident in Judge Roberts and Judge Alito. But I am not sure where within this conservative/liberal consensus she stands.

Sotomayor’s ruling the “douchebag” case – though it is certainly possible to view her deference to the school’s position as a judicial modesty which I can support. But I think the role of Courts in checking the increasing power of corporations, schools, and other semi-voluntary organizations to monitor and police the private activities of citizens is going to gradually become a big issue. That Sotomayor signed onto an opinion then that allowed the restriction of free speech on a non-school affiliated blog because calling administrators “douchebags” presented a “foreseeable risk of substantial disruption” is a matter of concern.

On the issue of executive power, Sotomayor’s record is thin. As Charlie Savage wrote in the New York Times:

[T]he effect on presidential power could be pivotal. Important rulings on executive authority — striking down military commissions and upholding habeas corpus rights for Guantánamo detainees — have been decided by a five-vote majority, including Justice Souter, on the nine-member court.

“Given that the decisions have generally been 5-4 in this area, this could be terribly consequential,” said David Golove, a New York University law professor. “We’re losing one of the court’s strongest leaders on the side of limiting executive power to reasonable bounds. If the person who replaces Souter is different than him, the balance of power may shift.”

The article was written before Sotomayor was nominated – but Savage briefly outlined her record in this area:

[O]ne person near the top of Mr. Obama’s short list — Judge Sonia Sotomayorof the United States Court of Appeals for the Second Circuit — has never worked in the federal executive branch and sits on a court that hears few executive power cases.

These issues – of executive power, war powers, of state secrets, of torture, and of national security in general – are becoming the new culture war. And it is a front in which the Court must take a strong position. I await the hearings to see what Sotomayor has to say on the issue – although I presume she will be as careful in her answers on this issue as past nominees have been on abortion.