I understand Ackerman's sentiments as we certainly do not want the President's Office of Legal Counsel being treated as a group of politically-minded attorneys who will put their legal approval on whatever the President decided he was going to do anyway and that faithful execution of the law has to be rooted in genuine legal analysis. That said, this tribunal is not the answer.
My gut reaction to this article is that this proposal suffers from some "Separation of Powers" problems. A commenter to Ackermna's column named DCPost1 nicely makes this argument:
I cannot believe what I'm reading here, professor. A new tribunal that will "lay down the law for the executive branch"? A kind of "fourth" branch that will straddle the existing three branches for the purpose of limiting the power of one of those branches?
Monstrous, and so beyond what the Framers had in mind when they crafted the Constitution that it could only have come from the ruminations of an Ivy League law professor.
The legislative branch writes the laws, the executive branch executes them/puts them into practice, and the judicial branch interprets those laws by applying them to cases and controversies and, in so doing, tells us what the law "is."
The branches pull and push each other and fight for primacy but . . . they . . . can't . . . quite . . . grasp it. Or if any branch does, the system of checks and balances soon operates to re-calibrate the three-sided machine. A beautiful work of genius.
The branches each have their flaws. The modern Congress tends to get its laws enacted by writing them so broadly (or poorly) that they invite multiple interpretations, or by crafting general statutes and leaving the dirty work to unelected bureaucrats who write implementing regulations long after the public debate has ended and attentions have turned to something else.
Executives drift into micromanagement and become ineffective, or try to govern like monarchs without paying too much attention to the wants of the public, or to the roles of the other branches with which they must learn to share power.
The judiciary forgets that it's the judicial branch and not the legislature. And so on.
But these are not flaws in the system that must be remedied by striking at the heart of the Constitutional system. They are flaws inherent in the system not because of its design, but because however brilliant the system may be, it depends on regular human beings to function, and human beings are flawed.
And when a flawed human being (or group of them) threatens the integrity of the system by its actions, whether merely mistaken, or misguided, or actually nefarious, that system--helped along by the American voters--is able to correct itself. It doesn't always happen overnight, but it happens. The president who seems unassailable by his opponents drops in the polls and eventually is either voted out or runs out his term. The congressional majority that loses touch with the voters sees its ranks diminished or is even reduced to minority status. The courts that forget the limits of their role . . . well, that takes longer to work itself out, but eventually it does. With the exception of slavery, the issue that bested even the Framers, the system works.
So don't risk it by forcing the round peg of the judiciary into the square hole of the executive with the hammer of the legislature, professor. Do that, and you'll risk breaking the very thing you're trying to preserve.
The second point I would make is that these attorneys are already subject, as members of their respective bars, to disciplinary commissions. If the abuses are so clear (as I think they need to be if you're going to interfere with the President's Executive Powers), it shouldn't be a problem for a Court or Disciplinary Commission to step in and issue sanctions.
I understand that Mr. Ackerman really wants to make an example out of John Yoo, but that desire can't take priority over allowing a President to receive candid advice and it can't take priority over allowing attorneys to issue their opinion without fear of prosecution. Mr. Ackerman wants to argue a slippery slope as to what could result from this, but seen another way, but what happens when the tribunal comprised of the party opposite the President (politics is cyclical, remember?) decides it's to their advantage to cripple his power as Commander in Chief? Even if you consider that last point far-fetched, and it might be, it is merely put forth to show that you can't out-bureaucratize politics. I just don't think another level of bureaucracy is the answer.
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