Thursday, December 10, 2015

How Can Law Be Enforced Against the Executive?

The nonpartisan Government Accountability Office concluded that the Obama administration violated a “clear and unambiguous law.”
A recent post to the Volokh Conspiracy blog argues that a 2014 prisoner swap was blatantly illegal, in violation of a statute requiring that Congress be given thirty days advance notice of such an action. What interests me about it is not whether the claim is correct but, if it is correct, what ought to be done about it. More generally, how can either statutory or Constitutional restrictions be enforced against the executive branch?

In the case of an ongoing action, the obvious answer is that opponents can ask the courts to block it. Examples would be the various suits, past and present, over Obamacare, and Obama's policy on illegal aliens. But what about an action which is already over at the point when opponents learn of it—as was apparently true of the case that the post deals with?

The usual solution to that problem, in both tort law and criminal law, is to punish the tortfeasor or criminal. But government officials are not usually held liable for obeying the orders of their superiors, which shifts the responsibility to the President. If the violation is sufficiently serious, he can be impeached—the President of Brazil is currently threatened with impeachment for spending very large amounts of money in ways alleged to have been in violation of Brazilian law. But it's hard to argue that the particular case alleged reaches the level of “treason, bribery, and other high crimes and misdemeanors.”

One problem is that the responsibility is on the President, who is effectively immune from any sanction short of impeachment. Another is that all crimes are treated as offenses against the government, prosecution is by the executive arm of government, hence crimes that the head of the executive arm approves of are unlikely to be prosecuted. That is the same issue that arises in the very different context of offenses by police.

Solutions? Either in current law or in ways one could imagine altering it?


August said...

Remember Pinochet's end? I think that's the only way. A leftist president shall never be enforced against, but if you have a right winger who really upsets the left, then foreign leftists will meddle and scheme until they get their way.

August said...

In general the laws shall not be enforced, for the potential enforcers are also potential candidates who do not want to set a precedent curbing their future actions.

Doctor Mist said...

I have read (on wikipedia and elsewhere) the claim that "high crimes" does not mean "really serious crimes" but rather "crimes of the high" -- misconduct peculiar to officials, including actions that might not even be criminal if performed by an ordinary person. English tradition uses the phrase to include such picayune offenses as appointing unfit subordinates or not prosecuting a case. The use of the word "misdemeanor" suggests to me that we have given impeachment more gravitas than was originally intended. The Washington Post had an interesting article back in the Clinton impeachment days.

On the other hand, the fact that we have had only two impeachments, neither successful, suggests that it is unlikely to be a useful remedy in this case.

Tom W. Bell said...

So far as finding an objective tribunal goes, one might do much worse (indeed, the U.S. now does much worse) than a panel formulated per the guidelines of UNCITRAL article 9: "[E]ach party shall appoint one arbitrator. The two arbitrators thus appointed shall choose the third arbitrator who will act as the presiding arbitrator of the arbitral tribunal." By no means, at any rate, should government courts decide claims against the government, a practice future generations will regard as barbaric.

Max said...

It's hopeless for crimes performed "in the line of duty" (e.g. torturing prisoners). Those will never be prosecuted because there's no appetite for it. In the case of crimes performed for gain, e.g. bribery, it's up to the opposition party to gain power and pursue the case.

Anonymous said...

I just wanted to raise the issue of "But it's hard to argue that the particular case alleged reaches the level of '...high crimes and misdemeanors.'"

This is press speak to defend Clinton's nonsense. What does "reaches the level of.." mean in that sentence. Something is either a misdemeanor or it isn't. This is not some abstract term, but one with a very clearly determined meaning in our legal system.

It reminds me of all the hand wringing over "cruel and unusual punishment". The words "cruel" and "unusual" have extremely plain meanings and all the straining and arguing over the meaning of these words is just an excuse to obfuscate the plain, and to curtail the normal mechanisms for changing the law.

Misdemeanor means what it says, it is a fairly minor offence, and certainly most of our Presidents have committed them in abundance. However, as another commentor pointed out a law that can't be enforced doesn't much effect its purpose.

Max said...

Anon, on your interpretation, "high crimes and misdemeanors" means "serious crimes and minor crimes", which is borderline gibberish - nobody would write that. No, what it means is "high crimes and misdeeds". In other words, serious crimes and (serious) misdeeds that are not crimes.

JWO said...

That has been a problem for a long time. Even in the case of Hillary Clinton's emails, she broke the law but does a judge really want to bring down the leading candidate for President over such a small matter. Bill Clinton committed perjury but do you want to impeach the President for that!

The down side is politicians can make laws for everyone else that they do not need to keep.

Anonymous said...

Max, I don't agree with you. There is a level of crime below misdemeanor, namely infraction (things like speeding tickets for example). The text is plainly referencing any significant crime, high crimes, which it seems reasonable to think of as what we would call felonies, misdemeanors, the level of crime that ends with punishments less than a year in jail are all impeachable. A parking ticket though? Not so much.

And BTW, J Oliver, I don't agree that H Clinton's email situation is minor. It is a crime that people can go to jail for, for a pretty long time. Carelessly exposing government secrets when you have the very highest level of clearance is something you get shot for during wartime.

Anybody familiar with today's situation and the way computers work will tell you that that server was almost guaranteed to have been pwned by several major government hacking teams, so anything that went through that server certainly was revealed to the Chinese and the Russians, and possibly even little North Korea. If that isn't a serious crime, I don't know what is. Judges should be making decisions based on matter of law, not matters of politics. I'm sure they don't, but that is what they should do.

Anonymous said...

Is there a possibility under law the president can be prosecuted after he leaves office?

Tibor said...

What about a system with multiple equal executives (as opposed to one president) who have to decide unanimously on each decision? That makes decision making slower (IMO a feature not a bug) so more time to react to it and also less likely that there could be an illegal action of the executive branch which every member of the executive would benefit form. If they don't it simply does not happen because every subordinate knows that any decision not accepted by all of the "presidents" is invalid and they should not accept it themselves (and they could be held liable for doing so). I think that the system of multiple executives on equal footing who have to reach a unanimous conclusion is more or less the Swiss federal council (one of them is always officially a president for a year and that position rotates among them but under normal circumstances the presidency seems to be mostly ceremonial with the president being a "first among equals" without any more actual power than that of the other six councillors). I do not know how much the unanimity is a custom and how much a written rule though.

In any case, this system seems to be the best in this respect, followed by the parliamentary system where the prime minister still is above the ministers but not as much as in the presidential system where the president can act quite fast and unopposed. Even if he is later proven to have done something illegal, you do not want to have new presidential election over every minor thing and seems better to prevent such action by putting people in place of equal power who have an interest of you not doing it and without whom no decision is legal by default.

Thomas Sewell said...

For laws which make something illegal by executive branch officials, especially the President, you pretty much have to write into the law a private course of action for someone else to enforce it and/or collect damages.

So if the law in question had included a provision which stated that if notice wasn't given, each member of Congress (as the offended parties) was entitled to liquidated damages of $100K (or whatever) payable by the President personally (perhaps subject to a defense where he successfully prosecuted someone else for doing it without his approval) and not subject to bankruptcy, then suddenly the President has $53.5 million reasons (maybe less if his own party doesn't sue) not to break that law requiring notice.

Obviously there are some potential court-ruling minefields in there and you need someone competent in the law to draft the provisions, but making the person who has the power personally responsible for its use can go a little ways towards curbing executive branch abuses.

David Friedman said...

Thomas: I agree that creating a private course of action looks like an attractive approach to solving the problem.

Donald F. Linton said...

Why not private criminal prosecution alas the UK? Of course the pardon power would also have to be clipped appropriately.

Anonymous said...

The commenters forget: even if a tribunal were to find a president "guilty", what then? That might help an impeachment campaign politically, in theory, but we have reached the point that no leftist president is going to be without the aid of one third of the Senate.

Moreover, the Republicans are (obviously) terrified to impeach, whatever the president may do, because look what happened last time!

jdgalt said...

I would simply do away with the separation of powers and make the executive subject to the courts. It might still prove necessary to delay any trial of the president until he is out of office (although I could make a case against that, at least if a vice president is available in case of emergencies like a war). But I see no reason that government couldn't perform its (arguably) essential functions without any immunity for its own people whatsoever.

Certainly the prospect of impeachment under the present system doesn't work. We knew that when Andrew Jackson defied the Supreme Court and got away with it, and it got worse when FDR successfully threatened to pack the court. One is tempted to propose replacing the Court with a self-perpetuating Politburo, but over a long enough time that is bound to go bad, too.

To deal with the possibility of a rogue executive to whom all the police are loyal, I lean toward decentralizing all policing to very local levels, thus making a successful civil war possible if enough local communities get behind it.

JWO said...

Steve Landsburg had an idea here:

I kind of like the idea that you fine them by so huge amount that a judge will take all of their earnings above the poverty level for the rest of their lives.

I worked with a guy who claimed that he was not allowed to own a car worth more than $2000 or keep any earning above $x dollars because he injured someone badly and owed them a huge amount of money. Something like that.