The notion of « framing » – in which the way a topic is presented to people can influence how they solve the problem – is a generally accepted psychological phenomenon.132 It has also proven consistent in many legal situations.133 Political lawyers are subject to framing effects when given a topic that is first formulated by public service lawyers. but executive law firms – and in particular OLC and WHC – are designed to accentuate this civil society. Service framing effect. As a rule, OLC intervenes only at the request of other parties in the executive branch who are already discussing – and thus formulating – the legal question.134 This request is usually made in writing,135 with legal opinions presented in the best possible light by the requesting party.136 Since this facilitates the convincing defence of the issue before OLC, the framing effects may be more substantial.137 Most of the time, WHC is only involved, after an issue has made its way through the executive branch to the WHC (other than the occasional big question that will preemptively consider it).138 The U.S. Constitution does not explicitly address executive orders or define them as part of presidential authority. Rather, this authority has been established « in law and practice » and is considered « an inherent aspect of presidential power. » This does not make executive decrees unlimited; they have the force of law only if they are based on the powers conferred on the President by the Constitution or delegated by Congress to the President. As defined by the House Government Operations Committee of 1957. » An executive order that implements a policy that is in direct contradiction to the law will have no legal effect unless the decree can be justified as exercising the exclusive and independent constitutional authority of the president. In some cases, these de facto « appeals » to political lawyers are treated with respect, with political lawyers referring to public service lawyers. If there is a law firm in one agency or department that regularly deals with an issue, even political lawyers in another lawyer`s office often rely on the expertise of the public service lawyer in the first office.139 Courts may also submit to the part of the executive branch that is perceived to be more knowledgeable.140 There is evidence that: that this deference exists even when political lawyers occupy very different positions from those of public service lawyers. If only because public service lawyers can argue creatively to persuade the political lawyer.141 This deference to the chevron exists not only when a political lawyer reviews the work of a public service lawyer, but sometimes occurs when an external actor reviews the work of the public service lawyer.
There is a wealth of literature highlighting how the Supreme Court trusts and is influenced by the SG`s office.142 * M.Phil., University of Oxford, 2005; J.D. Kandidat, Harvard Law School, Class of 2008. Many thanks to Professor Jack Landman Goldsmith for introducing me to the ethics of law enforcement practice. Many thanks also to Louis Ballezzi and Chiraag Bains for their insightful comments. And thank you also to my family and friends, especially Keira Driansky, for their suggestions and encouragement. [1] See Authorization for Use of Military Force, Pub. L. No. 107-40 § 2(a), 115 Stat.
224 (2001). [2] See memorandum from Jay S. Bybee, Assistant Attorney General, to Alberto R. Gonzales, White House Counsel, and William J. Haynes II, General Counsel, Department of Defense, Application of Treaties and Laws to Al-Qaeda and Taliban Detainees (22. janvier 2002), verfügbar unter www.washingtonpost.com/wp-srv/nation/documents/012202bybee.pdf; Memorandum von Jay S. Bybee, Assistant Attorney General, an Alberto R. Gonzales, Berater des Weißen Hauses, Status der Taliban-Streitkräfte gemäß Artikel 4 der Dritten Genfer Konvention von 1949 (7 février 2002), erhältlich bei news.findlaw.com/wp/docs/torture/bybee20702mem.html; Memorandum von Jay S.
Bybee, Assistant Attorney General, an William J. Haynes II, General Counsel, Dep’t of Defense, Potential Legal Constraints Applicable to Interrogations of Persons Captured by U.S. Armed Forces in Afghanistan (26. février 2002), verfügbar atwww.washingtonpost.com/wp-srv/nation/documents/022602bybee.pdf; Memorandum von Jay S. Bybee, Assistant Attorney General, an Alberto R. Gonzales, White House Counsel, Standards of Conduct for Interrogation Under 18 U.S.C. 2340-2340A (1. Août 2002), verfügbar atnews.findlaw.com/wp/docs/doj/bybee80102mem.pdf.
[3] 343 United States 579, 643-47 (1952) (Jackson, J., concordant) (concluding that President Truman exceeded his constitutional authority by seizing steel mills during the Korean War). [4] At the very least, IBC counsel should have explained why, if at all, Youngstown does not apply. In addition, OLC lawyers should have engaged in more dialogue with other relevant law firms in the Ministries of State and Defence. [5] See Robert K. Vischer, Legal Advice as Moral Perspective, 19 GEO. J. RECHTSETHIK 225 (2006). [6] Richard Bilder & Detlev Vagts, Speaking Law to Power, 98 AM. J. INT`L L. 689, 694 (2004).
[7] Ibid. 693. [8] W. Bradley Wendel, Legal Ethics and the Separation of Law and Morals, 91 CORNELL L. REV. 67, 91 (2005). [9] Ibid. 70. See also Posting of Marty Lederman to Balkanization Blog, Understanding the OLC Torture Memos (Part I), balkin.blogspot.com/2005/01/understanding-olc-torture-memos-part-i.html (7. January 2005, 9:15 EST). [10] See Vischer, note 6 above. [11] Jesselyn Radack, Tortured Legal Ethics: The Role of the Government Advisor in the War on Terrorism, 77 COLO.
1 (2006). [12] See, for example, Kathleen Clark, Ethical Issues raised by the OLC Torture Memorandum, 1 J. NAT`L SEC. L. & POL`Y 455, 469-72 (2005); George C. Harris, The Rule of Law and the War on Terror: The Professional Responsibilities of Executive Branch Lawyers in the Wake of 9/11, 1 J. NAT`L SEC. L. & POL`Y 409, 450-53 (2005) [13] See Wendel, note 10 above. [14] Memo on torture. [15] This method involves tying a prisoner to an inclined plank, lifting his feet and placing his head lightly under his feet, wrapping his face in cellophane and pouring water on him.
Inevitably, the prisoner`s gag reflex comes into play and a terrible fear of drowning leads to almost immediate calls to stop treatment. See Brian Ross & Richard Esposito, CIA`s Harsh Interrogation Techniques Described, November 18, 2005, abcnews.go.com/WNT/Investigation/story?id=1322866&page=1. [16] This technique involves leaving a prisoner naked in a cell near 50 degrees Fahrenheit and spraying him with cold water. It is also important to note that these substantive concerns may be partly political, but also partly – if not largely – legal. These lawyers are advocates of this coalition of parties as opposed to demographers or economists because they support the party`s legal agenda. This means that their substantial incentives might be to support a broad interpretation of substantive procedural rights for social rights in the case of lawyers in a Democratic government and a broad interpretation of economic rights in a Republican government. That`s why they are called politicians, but also lawyers – their concerns are both. Stephen Miller insists that « we have no judicial supremacy in this country. We have three equal branches of government.
In this, he is both right and wrong. When a court interprets the common law or interprets a statute, Congress and the President have the constitutional power to make laws to overturn the court`s decision. But when it comes to interpreting the constitution, the courts have the final say – with the exception of a constitutional amendment. Indeed, in interpreting the provisions of our Constitution, the authors did not trust the President or Congress to have the last word. When such fundamental issues are at stake, we have the supremacy of justice in this country – whether Mr Miller likes it or not. Understanding the structure of the executive branch, how power has been described in the Constitution, and the responsibilities of each role is essential to understanding the scope of executive power and how it has changed since the creation of our government. 10. Some existing and excellent reports are beginning to paint an empirical picture of managerial advocacy – for good examples, see, for example, Borrelli, Hult & Kassop, op. cit. Cit.
Footnote 8; Thomas W. Merrill, Senior Lawyers, « Tenured » Lawyers, Law & Contemp. Probs., Spring 1998, age 83; Trevor W. Morrison, Stare Decisis at the Office of Legal Counsel, 110 Colum. 1448 (2010); , above footnote 8. In Ackerman`s account, the fact that there are others—and other forms of lawyers—in the executive branch is never mentioned or largely unimportant. Ackerman speaks of a « bureaucracy »29, that is, presumably the lawyers of civil servants and civil servants beyond lawyers. But this bureaucracy, according to his account, has become increasingly « politicized » here and elsewhere.30 31 The relationship between the principal and the intermediary is hardly negligent.
The president, his wishes and powers create a « political juggernaut »32 and therefore always issue « executive decrees ». imposed on the federal bureaucracy, even if it conflicts with congressional mandates. » 33 In his first two weeks in office, President Joe Biden signed 28 executive orders directing federal agencies to take specific actions and policies. While this figure is remarkable for the first weeks of a presidency, « the use of executive action to drive policy change is not new. » Ideology and independence are part of the constraint.