If the president does it, it really isn’t illegal.
On December 7, 2007, Senator Sheldon Whitehouse (D-Rhode Island), as a member of the Senate Intelligence Committee, disclosed on the floor of the US Senate that he had declassified three legal documents of the Office of Legal Counsel (OLC) within the Department of Justice that state:
- An executive order cannot limit a president. There is no constitutional requirement for a president to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the president has instead modified or waived it.
- The President, exercising his constitutional authority under Article II, can determine whether an action is a lawful exercise of the President’s authority under Article II.
- The Department of Justice is bound by the President’s legal determinations.
Read point #3 again and let it sink in: the Judicial Branch of government doesn’t tell the president what the law is, the president tells the Judicial Branch what the law is. Furthermore, the president doesn’t have to tell us what he’s decided or when he’s decided not to abide by what he decided.
What’s the danger? Well, for starters, Sen. Sheldon warned of the “poorly written” Protect America Act:
which provides no statutory restrictions on government wiretapping of Americans and eliminates checks and balances from the legislative and judicial branches. The only restriction on government eavesdropping on Americans is an executive order that limits surveillance to those who the attorney general determines to be agents of a foreign power.
However, since the president, according to the declassified OLC opinions, can secretly change his Executive Orders and signing statements at will and then dictate the legality of those decisions to the Judicial Branch, the rest of us — including Congress and the Supreme Court — have no idea what the Executive Branch is doing and no recourse if we object.
In short, when Obama adviser Valerie Jarrett said the president-elect would be ready to “rule” from Day One, she was dead on. And conservatives who supported George W. Bush and his “presidentialist” administration have no cause to complain when Barack Obama begins to abuse the power of the office.