Dawn Johnsen, is that really Yoo?

Eric Rasmusen finds a 1997 memo by Dawn Johnsen, then at OLC, which could be mistaken for an early work by John Yoo. He gleefully quotes comparable passages; click his name if you want to see that.

The topic, admittedly, is not torture or war powers, but whether the President is subject to credit-reporting laws that would ordinarily require a potential employer to advise rejected applicants if their credit reports played a role in nixing them. Does this statute apply to the President's executive-branch nominees and employees?

Nay, writes Johnsen. We are told,

the constitutional principle of separation of powers assures a division of power among the federal government's three coordinate branches. The clear statement rule "exists in order to protect 'th[is] usual constitutional balance' of power." Id. (citing Gregory v. Ashcroft, 501 U.S. 452, 460-61 (1991)).

The "id." cite is to a previous memo by Walter Dellinger, so apparently that memo cited Gregory. If you look at the Gregory cite, however, you get a discussion of the separation b/t federal and state powers, not a discussion of the separation of the federal powers themselves. It's not immediately clear to me that these are interchangeable doctrines, and the distinction certainly should at least have been noted in a parenthetical.

Not much better is this part:

It is a well settled principle of law, applied frequently by both the Supreme Court and the executive branch, that statutes that do not expressly apply to the President must be construed as not applying to him if such application would involve a possible conflict with his constitutional prerogatives. See, e.g., Franklin v. Massachusetts, 505 U.S. 788, 800-01 (1992).

Going to Franklin, we do find this:

We would require an express statement by Congress before assuming it intended the President's performance of his statutory duties to be reviewed for abuse of discretion.

However, the Court's next-but-one sentence is this:

Although the President's actions may still be reviewed for constitutionality, see Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952); Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446 (1935), we hold that they are not reviewable for abuse of discretion under the APA, see Armstrong v. Bush, 288 U.S.App.D.C. 38, 45, 924 F.2d 282, 289 (1991).

That is a pretty big "although" to completely omit mentioning.

Note that the Armstrong case merely held that, where Congress applied the Administrative Procedures Act to "each authority of the federal government," it meant to encompass agencies; "the President is not an 'agency.' " Hard to argue there.

Of course, the fact that Ms. Johnsen wrote a lousy memo does not exculpate anyone else, though it is something I would ask her about, were I a member of the appropriate Senate committee. And having found this memo, I would set some staffers to pulling up a great many more of her memos, checking cites.

(I wonder if Yoo and Bybee could plead as a defense that OLC *routinely* rubber-stamped whatever the White House wanted done?)

... The Dellinger memo plays a bit fast and loose as well, I think. Here's the passage citing Gregory that Johnsen quotes:

Thus, the Constitution divides power between the federal and the state governments as well as among the federal government's three coordinate and independent branches. See Gregory, 501 U.S. at 458. The clear statement rule exists in order to protect "th[is] 'usual constitutional balance'" of power. See id. at 460 ....

The cite to page 458 is valid, but the quotation about "this 'usual constitutional balance' of power" is suspect. Here's Gregory:

Congressional interference with this decision of the people of Missouri, defining their constitutional officers, would upset the usual constitutional balance of federal and state powers.

Uh-huh. And the court goes on to say:

This plain statement rule is nothing more than an acknowledgment that the States retain substantial sovereign powers under our constitutional scheme, powers with which Congress does not readily interfere.

It seems here as if the "plain statement rule" applies to federalism questions, not to issues arising out of the separation of powers.

Dellinger goes on to cite Franklin, which at least *is* a separation-of-powers case. But he too omits any acknowledgement of the reviewability for constitutional violations under Youngstown. And again, Franklin like Armstrong considered whether the President is an "agency" under the APA -- Congressional intent can be inferred as much from the framework of a statutory scheme as from the letter of a particular definition in that framework. Dellinger plucks out an unnecessary holding by Justice O'Connor and runs with it.

Dellinger's memo cites other cases too, and the "clear statement" rule may indeed be good law w/r/t separation of powers. But some of the citations seem dodgy, and Youngstown still holds good. As Justice Scalia notes in his separate op in Franklin (citing Youngstown), unlawful executive acts can still be enjoined.