Convention Day 2: Separation of Powers Panel

After the Hillary speech, the ACS put on the second biggest event of the day, a plenary panel of distinguished legal minds discussing the issue of separation of powers, and the tension between the executive and the other branches of government under the Bush administration. The panel included Ronald Weich, lead counsel for Sen. Harry Reid, Professor Harold Koh, Dean of the Yale Law School, Beth Nolan, former Counsel to the President under Clinton, Senator Gary Hart, and Professor Douglas Kmiec of Pepperdine (former dean of my former school Catholic U.) Generally the panel leaned liberal, with the exception of Kmeic, a "reasonable conservative." The topics discussed included the increased use of signing statements by the Bush administration, the administration's willingness to construe statutes broadly in their favor (think FISA), and the role of the judiciary as a check on the executive overreaching. The speakers leaned about as you would expect; that the Bush administration has generally overreached, and upset the rightful balance of power between the three branches of government. All speakers, even Kmiec, seemed concerned with the not only the overruse of signing statements, but the deliberate phrasing of signing statements to seem as vague as possible, so as to leave open the extent of authority that the Bush administration claims, as well as their willingness (or unwillingness) to abide by laws that Congress has passed (think the McCain amendment.) This topic merged generally with the next topic, the Bush administration's willingness to narrowly construe statutory language in their favor (or indicate their unwillingness to abide by statutory language via signing statements...such as the McCain amendment.) Senator Hart hit stride on this topic, comparing the Bush administration to the Nixon administration, and their willingness to justify illegality on the basis of concern over national security. For Koh, the real problem is that, as regards at least the Office of Legal Counsel, the policy justification becomes the legal justification for the administration's approach (think the torture memos). Kmiec launched into a discussion of the ongoing debate over the extent of federalism, and the validity of the "unitary executive" approach, although the other speakers disagreed with his general support for a more powerful executive. However, he also emphatically supported Koh regarding the OLC, stating that regardless of the ideology of the administration, the OLC's purpose should be to determine whether administration policy is legally justifiable, and not start with the premise that legal justification must be made for the policy approach (for which he was applauded by the audience.) On the issue of judicial review, Koh was highly critical of the administration's approach as regards judicial oversight of their policies in the "war on terror", citing the example of Padilla and the Bush administration removing him from military custody on the eve of Supreme Court review of the 4th Circuit's decision in his case. Weich, naturally, discussed the Republican efforts to re-write Senate rules regarding judicial confirmations. And Kmeic stated that the courts should not be involved in creating policy as regards issues of national security.

Of course, there was more to it than all that. Actually, it was a pretty interesting discussion, by some of the brightest legal minds in the country, and quite educational and informative, though I've only touched on the highlights. So...there you go!