Price-Reliance-on-Executive-Constitutional-Interpretation-2018-06-01
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Price-Reliance-on-Executive-Constitutional-Interpretation-2018-06-01
PRELIMINARY DRAFTPlease do not cite or circulate without permission.EssayReliance on Executive Constitutional InterpretationZachary s. Price'Introduct Price-Reliance-on-Executive-Constitutional-Interpretation-2018-06-01tionWith the confinnation of a new Central Intelligence Agency Director who previously ran a black site, the CIA’s use of 'enhanced interrogation” dining the George w. Bush Administration is back 111 the news.1 Despite renewed soul-searching over past abuses, however, a key legal question presented Price-Reliance-on-Executive-Constitutional-Interpretation-2018-06-01by this program—whether executive branch legal opinions approving it immunized participants against future liability—remains unanswered.Fiulhennore. aPrice-Reliance-on-Executive-Constitutional-Interpretation-2018-06-01
lthough no public plans to resume such interrogation exist, numerous other controversial government activities, from oxerseas drone stiikes and electrPRELIMINARY DRAFTPlease do not cite or circulate without permission.EssayReliance on Executive Constitutional InterpretationZachary s. Price'Introduct Price-Reliance-on-Executive-Constitutional-Interpretation-2018-06-01likely depend on internal legal opinions concluding, as the Justice Department’s Office of Legal Coiuisel did with respect to enhanced interrogation, that civil or criminal statutory prohibitions aie inapplicable for constitutional reasons.2 As with enhanced interrogation in the Bush years, governme Price-Reliance-on-Executive-Constitutional-Interpretation-2018-06-01nt personnel or others acting 111 reliance on such legal guidance might well be committing crimes, civil violations, or torts if this legal guidance tPrice-Reliance-on-Executive-Constitutional-Interpretation-2018-06-01
urns out to lie mistaken.3Even worse, if the basic legal issue has not gone away, the political context 111 which It operates has changed considerablyPRELIMINARY DRAFTPlease do not cite or circulate without permission.EssayReliance on Executive Constitutional InterpretationZachary s. Price'Introduct Price-Reliance-on-Executive-Constitutional-Interpretation-2018-06-01ollege of the Law: .ID. Harvard Law School: AB. Stanford University, [acknowledgements] Although the author sewed as an Attorney Adviser in the U.S. Justice Department’s Office of Legal Counsel between 2009 and 2012. the views expressed arc solely the author’s and do not necessarily reflect the view Price-Reliance-on-Executive-Constitutional-Interpretation-2018-06-01s of the office, the Justice Department, or the United States government. The discussion here is based entirely on publicly available sources.* SlianePrice-Reliance-on-Executive-Constitutional-Interpretation-2018-06-01
Harris & Karoiui Demirjian. Gina Haspei Confirmed as CIA Chief Despite Scrutiny of Her Role In Interrogation Program. Wash.POST (May 17. 2018).2See iPRELIMINARY DRAFTPlease do not cite or circulate without permission.EssayReliance on Executive Constitutional InterpretationZachary s. Price'Introduct Price-Reliance-on-Executive-Constitutional-Interpretation-2018-06-01chances that future controversies will not be resolved through informal means, such as the prosecutorial forbearance applied to exempt Bush Administration interrogators from sanction. Next time, key constituencies may well demand heads on spikes, leaving It to courts to sort out whether past relianc Price-Reliance-on-Executive-Constitutional-Interpretation-2018-06-01e affords any current legal defense. Meanwhile, roughly parallel questions seem to be routinely arising at the state and local level: police departmenPrice-Reliance-on-Executive-Constitutional-Interpretation-2018-06-01
ts and other officials must decide whether to take actions, ranging from adopting a stop-and-frisk program to firing an employee over controversial puPRELIMINARY DRAFTPlease do not cite or circulate without permission.EssayReliance on Executive Constitutional InterpretationZachary s. Price'Introduct Price-Reliance-on-Executive-Constitutional-Interpretation-2018-06-01nd constitutional law are increasingly polarized. All these situations raise an important and substantially unresolved question: Is the executive branch lawyer s pow er to advise ever also a power to immiuiize?This essay explores the appropriate legal framework for resolving this question. In hopes Price-Reliance-on-Executive-Constitutional-Interpretation-2018-06-01of providing guidance ahead of the next crisis (and perhaps even forestalling it altogether), the essay aims to address the problem outside the heat oPrice-Reliance-on-Executive-Constitutional-Interpretation-2018-06-01
f any immediate controversy, while nonetheless using real-world examples as illustrations As I will explain, case law has recognized reliance defensesPRELIMINARY DRAFTPlease do not cite or circulate without permission.EssayReliance on Executive Constitutional InterpretationZachary s. Price'Introduct Price-Reliance-on-Executive-Constitutional-Interpretation-2018-06-01 others who relied on internal guidance to take actions later deemed unlawful* 4 Yet past accounts viewing these defenses as either categorically available5 or categorically unavailable6 in the federal context are mistaken. Instead, crafting any soturd reliance defense requires navigating between th Price-Reliance-on-Executive-Constitutional-Interpretation-2018-06-01ree complex and largely incommensurate structural principles, each with constitutional undeipiimings.The first, and most intuitive, is a fairness prinPrice-Reliance-on-Executive-Constitutional-Interpretation-2018-06-01
ciple. All else being equal, providing official assurance that planned actions are law-fill renders It grossly unfair to turn around a hold those who PRELIMINARY DRAFTPlease do not cite or circulate without permission.EssayReliance on Executive Constitutional InterpretationZachary s. Price'Introduct Price-Reliance-on-Executive-Constitutional-Interpretation-2018-06-01limitation on federal executive authority imder oiu system of separation of powers is that executive officials may not4See infra Part I B’ See, eg.. Daniel L. Pines. Are Even Torturers Immune from Suit? Hou- Attorney General Opinions Shield Government Employees from Civil Litigation and Criminal Pro Price-Reliance-on-Executive-Constitutional-Interpretation-2018-06-01secution. 43 Wake Forest L rev. 93 (2008) (purporting to “demonstrate that, in virtually every situation, government employees who rely on an AttorneyPrice-Reliance-on-Executive-Constitutional-Interpretation-2018-06-01
General opinion ill taking action will likely be absolved fiom any legal sanction").4 See. eg.. David Kurtz. Mark This Day. Talking Points Memo (Feb.PRELIMINARY DRAFTPlease do not cite or circulate without permission.EssayReliance on Executive Constitutional InterpretationZachary s. Price'Introduct Price-Reliance-on-Executive-Constitutional-Interpretation-2018-06-01 (2012) (describing civil rights advocates' push for prosecution of interrogators despite OLC opinions).2018-06-01] Executive Constitutional Interpretation- DRAFT3hold unchecked authority to eliminate (or “suspend”) governing legal requirements. Any reliance doctrine in this context must take accoun Price-Reliance-on-Executive-Constitutional-Interpretation-2018-06-01t of this principle too. The third, which is unique to the particular problem addressed here, is a departmentalism principle. Luder longstanding constPrice-Reliance-on-Executive-Constitutional-Interpretation-2018-06-01
itutional theory and practice, each branch of rhe federal government holds some authority to interpret the Constitution for itself in performing its cPRELIMINARY DRAFTPlease do not cite or circulate without permission.EssayReliance on Executive Constitutional InterpretationZachary s. Price'Introduct Price-Reliance-on-Executive-Constitutional-Interpretation-2018-06-01ve branch view even if courts, as a distinct branch of government, would have reached a different legal conclusion de novo.In the federal context. 1 will argue, appropriately balancing these three principles should cash out in three basic doctrinal rules:-1z\r least insofar as rhe advice in question Price-Reliance-on-Executive-Constitutional-Interpretation-2018-06-01 was reasonable (judged from the perspective of past executive blanch opinions), reliance on a formal OLC or Attorney General opinion should provide aPrice-Reliance-on-Executive-Constitutional-Interpretation-2018-06-01
complete due process defense in any subsequent civil or criminal government enforcement action.-2In contrast, reliance on any other executive directiPRELIMINARY DRAFTPlease do not cite or circulate without permission.EssayReliance on Executive Constitutional InterpretationZachary s. Price'Introduct Price-Reliance-on-Executive-Constitutional-Interpretation-2018-06-01 subsequent penal enforcement suit only insofar as the legal conclusions at issue reflect objectively valid reasoning rooted in prior executive blanch opinions.-3In other litigation contexts, including third-party prosecutions or enforcement actions and private damages suits against federal officers Price-Reliance-on-Executive-Constitutional-Interpretation-2018-06-01. reliance oil executive-branch legal conclusions should receive no particular protection, except insofar as past executive branch practice and precedPrice-Reliance-on-Executive-Constitutional-Interpretation-2018-06-01
ent properly inform courts’ own independent legal interpretations.These ground rules, T will argue, appropriately adapt existing reliance case law to PRELIMINARY DRAFTPlease do not cite or circulate without permission.EssayReliance on Executive Constitutional InterpretationZachary s. Price'Introduct Price-Reliance-on-Executive-Constitutional-Interpretation-2018-06-01rinciples ill other related areas, in particular-, under the familiar Chevron and Mead doctrines from administrative law. maximum judicial deference to executive legal determinations depends on both the institutional identity of the interpreter- (whether it is interpreting a statute It administers) Price-Reliance-on-Executive-Constitutional-Interpretation-2018-06-01and rhe degree of process rhe interpreter followed (whether it4Executive Constitutional Interpretation—DRAFT (2018-06-01employed notice-aiid-comment pPrice-Reliance-on-Executive-Constitutional-Interpretation-2018-06-01
rocedures).' Here, by rough analogy, the degree of after-the-fact judicial deference, in tire form of reliance protection for potential defendants, shPRELIMINARY DRAFTPlease do not cite or circulate without permission.EssayReliance on Executive Constitutional InterpretationZachary s. Price'Introduct Price-Reliance-on-Executive-Constitutional-Interpretation-2018-06-01the same time, so as to presen e overall judicial primacy 111 constitutional interpretation, courts should retain authority to formulate independent legal conclusions in at least some litigation contexts.With respect to state and local governments, in contrast, the reliance calculus should be simple Price-Reliance-on-Executive-Constitutional-Interpretation-2018-06-01r. In that setting, considerations of departmentalism and the anti-suspending principle drop out. leaving a more straightforward balance between indivPrice-Reliance-on-Executive-Constitutional-Interpretation-2018-06-01
idual fairness and the supremacy of federal law over state policy.8 Accordingly, although one recent account argues that a professional legal opinionGọi ngay
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