Will Sotomayor restrain executive overreach?

By Lewis McCrary

Conservatives tend to judge Supreme Court nominees’ fitness on the strength of their pro-life credentials. Sonia Sotomayor is unlikely to vote for Roe’s repeal, but retiring David Souter proved a reliable pro-choice vote. The current balance holds.

Sotomayor’s appointment could, however, shift the majority on another issue that should concern the Right: the ongoing abuse of executive power.

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Following 9/11, George W. Bush used the threat of terrorism to stretch presidential prerogatives to historic dimensions. Barack Obama has dispensed with the “war on terror” label, but his administration has not renounced practices like holding suspects in “prolonged detention.” As challenges mount, and Congress refuses to assert itself, the high Court will be forced to affirm or contain executive ambitions.

Much as he frustrated conservatives on a range of issues, Justice Souter was a dependable vote for limiting presidential power. As he lectured the solicitor general in oral arguments on Hamdi v. Rumsfeld (2004), “it may very well be that the executive has power in the early exigencies of an emergency. But at some point in the indefinite future, the other political branch has got to act if that power is going to continue.” Souter displayed a decidedly pragmatic view: the president’s authority to act in an emergency continues only until Congress can weigh in on further action.

At stake in Hamdi was the legality of indefinite detention of American citizens by the executive branch. Yaser Esam Hamdi, a U.S. citizen by birth, was captured in Afghanistan and accused of fighting for the Taliban. Classified as an “enemy combatant,” he was held without formal charge or access to counsel until his family appealed. A majority of the court ultimately recognized Hamdi’s ability to challenge his legal limbo, but Souter filed an opinion that went much further in attempting to restrain executive power. He rejected the rest of the majority’s broad interpretation of the original Congressional Authorization for the Use of Military Force, insisting that Congress was required to speak again on the issue of indefinite detention. Citing Federalist 51, he remarked that the “defining character of American constitutional government is its constant tension between security and liberty” that justifies the separation of powers. “In a government of separated powers, deciding finally on what is a reasonable degree of guaranteed liberty whether in peace or war (or some condition in between) is not well entrusted to the Executive Branch … whose particular responsibility is to maintain security.” Souter recognized that the interminable nature of the war on terror opens a dangerous loophole for the executive to detain anyone declared an “enemy combatant” without trial. In a conflict that might continue for generations, detainees could die in prison without hearings.

The Court’s opinions in Hamdi show that when it comes to executive power, the traditional Left-Right classifications break down. Souter and Ruth Bader Ginsburg proved reliable buttresses against arbitrary executive power, while Sandra Day O’Connor, William Rehnquist, Anthony Kennedy, and Stephen Breyer only narrowly upheld a citizen’s right to challenge his status as an enemy combatant. John Paul Stevens, considered the most liberal justice, joined conservatives Antonin Scalia and Clarence Thomas in rejecting all of Hamdi’s claims.

Since that case was argued, John Roberts and Samuel Alito have replaced O’Connor and Rehnquist. These former Reagan hands are far less inclined than their predecessors to limit presidential power, making Souter’s seat pivotal in future cases.

Sotomayor’s record on the executive power is sparse. Her Second Circuit Court of Appeals, based in New York, hands down few decisions in this area. When he sat on the D.C.-based circuit court, then Judge John Roberts decided in favor of the administration in the 2006 Hamdan detainee case and had to recuse himself when the decision was overturned by the Supreme Court.

On a pair of cases concerning the use of executive privilege to overrule claims made under the Freedom of Information Act, Sotomayor did decide in the government’s favor. In Tigue v. DOJ (2002), she denied a FOIA request to release a memorandum written by a U.S. attorney advising an independent commission chartered to reform IRS criminal investigation practices. In Sotomayor’s view, the memo was interagency “deliberation,” an exemption allowed by FOIA so that disclosure would not “unreasonably hamper agencies in their decision-making.” In a 2005 case addressing another FOIA request, Wood v. FBI, involving the release of a Department of Justice memo discussing FBI misconduct,” Sotomayor deemed the document in question “pre-decisional” and thus covered under another FOIA exemption.

But she has also, on occasion, ruled against the executive branch. In Doe v. Mukasey (2008), Sotomayor weighed in against Patriot Act provisions that imposed gag orders on telephone companies and Internet service providers regarding subpoenas for customer data. In another case, in which a decision hasn’t yet been released, she questioned the government’s lawyer harshly on “extraordinary rendition,” the practice of transferring suspected terrorists to countries known to employ harsh interrogation techniques.

Cato Institute scholar Gene Healy says there is “some reason to be cautiously optimistic that she won’t roll over on claims of broad presidential power when it comes to national security issues.” While Sotomayor’s record “on government secrecy is a little mixed,” he suspects that “she probably will not be a down-the-line ACLU sort of voter.”

“From a libertarian/constitutionalist perspective, McCain’s prospective nominees would have been better on some issues than either Obama’s or Clinton’s,” Healy continues. But likely Republican nominees—as Roberts and Alito demonstrate—“would have been far worse than Democratic appointees on questions like, can the president carry out a wiretapping program in defiance of federal law and forever shield the details of that program behind the state secrets doctrine?”

Given the certainty of future Court decisions regarding Bush era assertions of presidential power, senators should ask Sotomayor what role she sees the judiciary playing in restraining the executive branch. If her inquisitors want to sound even more learned, they might ask about the unitary executive. According to this theory, the president acts not only as head of the executive branch, but is a corporate person animating all executive activities of government. As Justice Alito stated in a speech to the Federalist Society, “The president has not just some executive powers, but the executive power—the whole thing.” Justices sympathetic to originalism— particularly Alito, Thomas, and Scalia—claim that this unitary executive was always the framers’ intent. Good constitutionalists should therefore not be alarmed by the vast expansion of the federal bureaucracy since the days of Hamilton and Madison.

Cass Sunstein, one of the nation’s most prominent legal scholars, asserts in a well-circulated law review article that this originalist understanding “is just plain myth” and “ignores strong evidence that the framers imagined not a clear executive hierarchy with the President at the summit, but a large degree of congressional power to structure the administration as it thought proper.” This does not stop Sunstein—himself a rumored contender for the Souter slot—from endorsing a unitary executive by other means. He argues that a progressive jurist must recognize that “a strongly unitary executive can promote important values of accountability, coordination, and uniformity in the execution of the laws” and that first principles of constitutionalism such as separation of powers are maintained through a defense of presidential power. Legislation authorizing federal personnel who are not subject to termination by the president—for example, independent counsels or heads of some regulatory agencies—is “troublesome” as “a matter of constitutional law.” A robust theory of the unitary executive enabling expansion of executive power need not come from the court’s Right flank.

Justice Souter appeared to disagree with Sunstein’s conclusion that a historically dramatic expansion in executive prerogatives poses no threat to separation of powers. So should his replacement. The inevitable frailty of human actors, presidential or not, requires that the Court resist cries of “activism” in limiting executive power to secure what scholars like Randy Barnett call a Constitutional “presumption of liberty.”

Sotomayor is regularly described as exercising a “pragmatic” approach to jurisprudence. This pragmatism is potentially a smokescreen for judicial activism. But given what is at stake in the area of executive power, conservatives can only hope that if Sotomayor is indeed an activist, she is one in the mold of David Souter.

Lewis McCrary is an editorial assistant at The American Conservative.