The dawn of executive modesty? Don’t bet on it

I wrote here about Dawn Johnsen, who has been nominated to run the Justice Department’s Office of Legal Counsel, which interprets the law for the entire executive branch. I noted that Johnsen has been a particularly shrill critic of the Justice Department’s positions on legal issues pertaining to the war on terror — a critic who has found it necessary to bolster her legal arguments with attacks on the motives of those who disagree with her.

The Wall Street Journal sees the selection of Johnsen as unfortunate. It argues that, given Johnsen’s view that legal advisors within the executive branch should function as a contraint on executive power, her selection to head the OLC is like “naming a conscientious objector as the head of the armed forces, or hiring your wife’s divorce lawyer to handle your side of the settlement too.”

It seems clear that the OLC should be prepared to say that the executive lacks the legal authority to take a given action where that’s the conclusion it thinks follows from the law. In that sense, the OLC can, indeed, serve as a constraint on executive power.

The interesting questions arise where, as may be the case here, the head of the OLC is pre-disposed to take a narrow view of executive power (I say this “may” be the case here because it’s also possible that Johnsen’s stated views stem from dislike of President Bush’s policies, not a real disagreement about executive power). As the Journal points out, it is most unlikely that the judicial and legislative branches will be taking a narrow view of their respective powers. Thus, “modesty” in the executive branch can place the executive at an undue disadvantage in the inevitable jockeying among the branches, and in ways that may harm the nation, including its security. On the other hand, as Johnsen has suggested, it is unseemly and possibly dangerous for the executive to assert its powers based on the view that a legal position is arguable, as opposed to correct.

But this tension is largely of academic interest only. As a practical matter, a president who takes an aggressive view of his powers will want a Justice Department, including an OLC head, who resolves doubt in favor of the assertion of executive power. One imagines that Obama will be such a president and that Johnsen will operate accordingly, or have a short stay.

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