As Bobby notes, Charlie Savage reports that the Obama administration disregarded a congressional statute that banned (through a spending condition) certain activities of the Office of Science and Technology Policy (“OSTP”) involving certain Chinese officials and organizations. The Office of Legal Counsel concluded that the restrictions violated “the President’s constitutional authority to conduct the foreign relations of the United States,” and in particular that “[m]ost, if not all, of the [prohibited activities] fall within the President’s exclusive power to conduct diplomacy.” The executive branch thus maintains that OSTP officials designated by the President to conduct diplomacy could lawfully engage in the activities that Congress had purported to ban.
The end of Savage’s story quotes Shannen Coffin, a Bush administration lawyer, urging courts to stay out of matters like this, but the bulk of the story suggests that there something untoward about the executive branch disregarding a federal statute without a court having ruled on the matter. “Although the Supreme Court has never struck down such a law, the Justice Department pronounced it unconstitutional,” Savage says (emphasis added). OLC’s reliance on a string of executive branch precedents in this case “illustrate[s] how one president’s assertion of executive power — sometimes in memorandums that are secret at the time — establishes a ‘precedent’ for his successors to develop by applying it to new circumstances,” he adds. “Each repetition cements and expands the claim without a court ever weighing in” (emphasis added). Savage then quotes Bruce Ackerman:
This is a bipartisan project of executive aggrandizement. Law is a disciplined conversation between lawyers and judges. But without any judges, law is a conversation between lawyers and other lawyers — and they’re all on the same side, building upon one another.
Continue reading Jack Goldsmith…