In his July 23, 2013 USA Today Op-Ed entitled, "What Supreme Court Shutouts Reveal," George Mason law professor Ilya Somin reminds us of the alarming number of cases in which the U.S. Supreme Court has ruled unanimously against the Obama White House. The professor correctly concludes that when a “president pursues policies that require such expansive federal power that he can’t get a single justice to agree, something is probably amiss.”
Having participated in more discussions than I can count on terrorism-related issues with some of the brightest lawyers in America, I can attest that the legal issues we confronted after the September 11, 2001 attacks were difficult and unique.
However, Professor Somin misses the mark when he equates the record of President George W. Bush with the current administration with respect to pushing the limits of federal executive power. Having participated in more discussions than I can count on terrorism-related issues with some of the brightest lawyers in America, I can attest that the legal issues we confronted after the September 11, 2001 attacks were difficult and unique. I concede we did not always accurately anticipate where the Supreme Court would draw the balance between security and liberty. However, I derive some professional satisfaction knowing that, unlike with the 9-0 court shutouts the professor highlights, the justices struggled with the issues presented in the four major terrorism cases decided during my tenure in government: Hamdi v. Rumsfeld, Rasul v. Bush, Hamdan v. Rumsfeld and Boumediene v. Bush.
Collectively these four cases produced 17 opinions, not one of which was able to attract more than five votes. In the Hamdan case alone, six of the eight participating justices felt compelled to author an opinion, thus showing the difficulty of the issues presented.
Professor Somin alludes that President Bush is an example of a president who routinely pushes the limits based on dubious theories of federal power. However, in the four cases above, 11 of the 12 judges in the federal circuit courts below agreed with the government’s assertion of power based on precedent.
While it is true that in the Hamdi case the Court held that due process required that a U.S. citizen being held as an enemy combatant had to be given meaningful opportunity to contest the factual basis of his detention, a clear majority of the Court also recognized that a court’s review of the Executive’s actions in wartime should be deferential. Furthermore, the Court recognized the legitimate application of the laws of armed conflict. Finally, in her plurality opinion, Justice O’Connor confirmed that the President could detain an enemy combatant without charges for the duration of hostilities, even if the enemy combatant is an American citizen.
The Obama era cases identified in Professor Somin’s writing deal primarily with issues in the domestic arena. At least in those cases in which President Bush has been accused by pundits and political critics of governing as an imperial president, he acted in response to national security threats. These decisions rested in part upon his Commander-in-Chief powers under the Constitution - a power at its apex during a time of conflict or when acting in self-defense to an attack such as 9/11.
I believe strongly in the exercise of executive power to protect our citizens. I believe even more that those actions must be constrained by the limits of the Constitution. The Bush Administration took extraordinary actions in response to an extraordinary threat. However, many people worked hard to ensure that the exercise of presidential power was within appropriate constitutional limits. We did so, not because we feared a unanimous loss at the Supreme Court, but because that is what President Bush directed and what the Constitution demands.