Goldsmith, Feldman, and Notre Dame Dean debate separation of powers


Widely considered one of the most ambiguous areas of legal scholarship, the separation of powers often comes to the fore at times of divided government and international conflict. Three renowned legal scholars discussed and debated current separation of powers issues before a nearly-full Ames Courtroom on Sept. 9. The event was the first in a series of panels sponsored by the Federalist Society. Professor Noah Feldman, Professor Jack L. Goldsmith, and William K. Kelley, the Assistant Dean and Associate Professor of Law at Notre Dame Law School treated audience members to a lively discussion. Professor John Manning served as moderator for the panel.

Professor Kelley began the discussion with his views on Presidential signing statements, the written documents Presidents can issue upon signing a bill in which he states his interpretation of the statute or directs executive agencies to act in a certain manner. Kelley attempted to counter accusations levied against President George W. Bush that his use of such statements was unconstitutional.

“There’s nothing wrong with signing statements, for goodness sake,” said Kelley.

Kelley stressed that Bush did not invent signing statements, but only began using them more systematically. In Kelley’s view, signing statements simply inform the public and the other branches of government of the President’s statutory interpretation. He also cited other benefits of signing statements: transparency, heightened oversight capability, and their addition “to the knowledge of the public.” Indeed, according to Kelley, “no less legal interpretation [would occur] in the executive branch” without signing statements.

Kelley also objected to a campaign pledge made by Senator John McCain. McCain has promised that, when presented with legislation, he would either sign a bill without issuing a signing statement or veto the bill. According to Kelley, statutes are very rarely facially unconstitutional and excessive use of the veto power could make legislating too burdensome. Instead, signing statements deal with a President’s concerns about potential unconstitutionality of a statutory provision as applied. Kelley envisions a Presidential signing statement as a beneficial signal that a potential problem exists with the legislation.

Kelley termed his views “trite and uncontroversial,” but admitted that “they might well seem bold.”

Professor Goldsmith proceeded to take the discussion in a different direction: the need for a President to seek the advice and approval of Congress when his power is at or near its Constitutional height.

In many important cases, the Bush Administration “waited too long politically . . . to secure Congress[ional] approval,” said Goldsmith.

Goldsmith cited the Supreme Court decision in Medellin v. Texas, a landmark defeat for the Administration, as a stern statement from the Court that the executive must consult with the legislative branch and “get Congress on board.” Instead, the President unsuccessfully used a memo to Attorney General Alberto Gonzales mandating compliance with an International Court of Justice decision restricting the execution of a Mexican national by the state of Texas.

Goldsmith posited that Medellin as well as some negative public sentiments toward the Administration are “best explained . . . by the perception of unilateralism.”

Goldsmith went on to discuss the claim that executive power today is similar to the growth experienced in the Watergate and Vietnam War era. Goldsmith disagreed with this comparison, citing The War Powers Act of 1973 as an example of Congress attempting “to clamp down on Presidential Power.”

According to Goldsmith, no such clamp-down is present today. He juxtaposed the War Powers Act with the Protect America Act of 2007 (PAA) which removed some of the warrant requirements from the Foreign Intelligence Surveillance Act. Goldsmith stated that the PAA, passed by a vote of 60 to 28 in the Democratic-controlled Senate, represented the opposite of an attempt to limit executive power. Goldsmith believes the “real difference” between the two situations is that “the [current] Congress perceives that there is a real threat” and that surveillance and counter-terrorism are out of date.

Professor Feldman concluded the panel discussion with his take on the current state of the debate regarding separation of powers. Feldman echoed Goldsmith’s assertion that separation of powers lends itself to attorneys for both viewpoints using the case law “with remarkable ease” to support their respective positions.

Feldman described the contemporary arguments on both sides of the political spectrum as “a twilight zone”-a “perfect inversion[s]” of traditional rhetoric and viewpoints. The contemporary conservative viewpoint, forwarding a more powerful executive, contradicts the classic conservative emphasis on originalism. Feldman believes that the Framers were “deeply afraid of executive authority” and, as a result, the “executive turned out to be rather weak.” Likewise, according to Feldman, the liberal viewpoint, favoring a limited executive, is also an “inversion expressed in wholly originalist terms.”

Feldman then discussed the importance of Justice Jackson’s concurrence in Youngstown Sheet & Tube Co. v. Sawyer. Now treated as if it were the majority opinion, Jackson’s concurrence predictably engages in a pragmatic discussion of the levels of executive power. Feldman believes this framework is still utilized because few other pragmatic rules exist in this area, despite that the Youngstown framework is “utterly disconnected from the text of the Constitution.” Feldman linked his consideration of Youngstown with a brief discussion of the recent Boumediene v. Bush decision. In Boumediene, Justice Kennedy, writing for a divided Court, found that Guantanamo Bay detainees have a constitutional right to habeas review in federal courts and that the Administration was never permitted to act as it did. Justice Kennedy, responding aggrandizement of executive power, seemed to suggest that the rule of law in this case is judicial review: “If you don’t have me [Kennedy], you don’t have the law,” said Feldman. Justice Jackson would likely concur, according to Feldman, as he saw the role of judicial activism as a way to settle disputes between the other two branches of government.

In reaction, Kelley posited that “the genius of the three-part test [in Jackson’s Youngstown concurrence] . . . is that it appears to be formal, but it is in fact entirely malleable.” Kelley believes that the greatest degree of aggrandizement during the Bush administration has actually occurred in the judiciary and that malleable frameworks only served to further increase judicial power. Kelley concluded: “In a War on Terror that I believe is real . . . I don’t really want Anthony Kennedy running the world.”

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