Few names are more associated with the worst abuses of the Bush Administration — its callous disregard for human rights, its treatment of the Constitution as opinion, its belief that presidents, or at least conservative presidents, are really kings — than former Bush OLC deputy John Yoo. Yet while Yoo is most famous for his at-best professionally incompetent claims that it’s legal for the United States to torture, Yoo’s first love was always limitless Presidential power. Two cases this Term will reveal just how many of the justices share Yoo’s passion.
- Can You Figure Out If You’re A Terrorist? Humanitarian Law Project v. Holder
One of the bedrock principles of American criminal law is that a criminal statute cannot be written in such a vague manner that a “person of ordinary intelligence” can’t figure out what it prohibits. Individuals shouldn’t have to guess whether or not they are breaking a law; and the Executive shouldn’t be empowered by ambiguously-worded statutes that allow them to claim that virtually anyone’s actions are worthy of prosecution.
Federal law, however, prohibits anyone from knowingly providing any “service,” “training” or “expert advice or assistance” to a group designated as a terrorist organization by the State Department. A law whose language raises serious vagueness concerns. If a terrorist leader announces that he reads the New York Times website to keep track of US politics, must the Grey Lady find a way to deny him the “service” of its reporting? Are attorneys who defend suspected terrorists in court providing illegal “expert advice or assistance?” One government attorney even claimed that an attorney who files an amicus brief — a brief filed by a non-party to a lawsuit to help advise the judges in their decision-making — raising a legal argument that benefits a terrorist organization is a felon.
If the Court allows this statute to stand, it will not only give its approval to a law that appears to ban Constitutionally-protected activity, it will give the Executive a virtual blank check to bring prosecutions against individuals with tenuous connections to terrorism. Worse, should the Court do so, it could take a giant bite out of the principle that people need to be able to figure out what the law is.
- The “Unitary Executive,”Free Enterprise Fund v. Public Company Accounting Oversight Board
Most political appointees in the Executive Branch serve at the pleasure of the President — they can be fired for any reason by the President and at the drop of a hat. In the 1930s, however, the Court recognized that there is value to having certain agencies insulated from the momentary whims and political machinations of the President, so they permitted the creation of so-called “independent agencies.” The members of most of these agencies, which include the FEC, the FCC and the SEC, are still appointed by the President, but often with conditions such as requirements that only a certain percentage of the appointments be selected from the same party, or rules preventing the President from firing agency members except for good (and non-politically motivated) cause.
As anyone who followed Alberto Gonzales’ tenure as Attorney General might expect, the right hates these independent agencies because they restrict their total control of government when they are in the White House. Because the President cannot fire FCC Commissioners for political reasons, he can’t pressure them to fine the Rachel Maddow Show while ignoring the antics of Glenn Beck. Similarly, because FEC Commissioners do not serve at the will of the President, they are not pressured to manipulate elections to benefit the President’s party. Had the rule been different during the Bush Administration, does anyone doubt that Karl Rove would have strong-armed the FEC in exactly the same way the Bush White House strongarmed U.S. Attorneys?
Because Free Enterprise Fund involves a somewhat unusual animal — an independent regulatory board whose members are appointed by another independent agency — it’s possible that the Court will strike down this strange beast but leave the FCC and FEC intact. Nevertheless, in a Term where the Court is already prepared to turn campaign finance over to corporate America, they now also have an opportunity to give control over the entire federal elections system to the next Karl Rove.