For Professors H. Jefferson Powell and Christopher Schroeder, the matter of the constitutional scope and limits of presidential authority is anything but abstract. In addition to engaging deeply with the issue as constitutional scholars, both also have grappled with it in practice as high-level executive branch lawyers during the Clinton and Obama administrations.
The two will bring their shared wealth of experience and insight ─ and enthusiasm ─ to Constitutional Law II: The Scope and Limits of Presidential Authority, their spring-semester course currently open for registration.
Powell returned to the Duke Law faculty last spring, after serving as deputy assistant attorney general in the Office of Legal Counsel at the U.S. Department of Justice, which provides legal advice to the president, the attorney general and other executive branch officers. He earlier served in the Justice Department in various capacities from 1993 to 2000, and in 1996, he was the principal deputy solicitor general.
Schroeder will return to the faculty full-time in January after serving in the Department of Justice as assistant attorney general for the Office of Legal Policy (OLP) since April 2010. As the Justice Department’s “think tank,” the OLP develops policy initiatives of high priority for the department and the administration, and helps evaluate judicial nominees. During the 1990s, Schroeder, the Charles S. Murphy Professor of Law and Professor of Public Policy Studies and co-director of the Program in Public Law, served as acting assistant attorney general in the Office of Legal Counsel (OLC).
The text of the Constitution says relatively little about the scope of presidential authority and Supreme Court jurisprudence on the matter is similarly sparse, Powell said. “There just isn’t much case law. So for many, many important issues that clearly are constitutional law issues about presidential authority, you simply can’t do what a lawyer reflexively does, which is go and look in the U.S. Reports to find what the Court has said. The Court hasn’t said very much.”
By way of example, Powell offers the question of the ability and the extent to which Congress can limit or prevent the president from initiating military action. The question came up most recently after President Barack Obama’s March 2011 decision to use U.S. air power against former Libyan President Moammar Gadhafi; some in Congress accused the president of violating the War Powers Resolution when operations continued for more than 60 days without congressional authorization.
“The contemporary question is whether the War Powers Resolution’s ‘60-day clock’ is constitutional,” said Powell. “The issue is obviously a constitutional law issue ─ it’s an issue about how the Constitution allocates authority between the Congress and the president. But the last Supreme Court case that squarely addressed that issue was Little v. Barreme in 1805. The Court has successfully managed to stay out of the business ever since.
“That doesn’t mean, if you’re a lawyer advising a member of Congress or advising the president, as Chris and I have been doing, that you can say, ‘I don’t know,’ or ‘There’s no answer.’ You have to have an answer. And if you’re a responsible lawyer, you aren’t just making it up. You have to reason in the absence of any Supreme Court case law since 1805, which makes the area really, really interesting.”
That’s why, Powell said, he and Schroeder plan to “start with George Washington and work all the way up to contemporary hot-button issues about presidential power” pertaining to such areas as the conduct of foreign relations and the preservation of national security.
Presidential Power Stories (Foundation Press, 2009), co-edited by Schroeder and Curtis A. Bradley, the William W. Van Alstyne Professor of Law and Professor of Public Policy Studies, is the primary text for the course; the book offers the historical and legal context for a dozen significant presidential power disputes in the nation’s history. Students will also read Supreme Court and Justice Department opinions, and secondary materials on point.
“Since we can’t usefully look just at Supreme Court cases, we’re also going to be looking at things that Congress has done,” said Powell. “Congress doesn’t usually opine on constitutional matters, but it passes legislation that expresses at least implicitly and, on occasion, explicitly, its views.
“We’ll be looking at the ongoing, over two-centuries old tradition of executive branch lawyering. As Walter Dellinger [Duke’s Douglas B. Maggs Professor Emeritus of Law] said in an article he wrote back when he was assistant attorney general in the Office of Legal Counsel in the ’90s, executive branch lawyers don’t just start out with the president’s preferences. They act within a long tradition of reasoned, written executive branch legal opinions. So we’re going to introduce students to those.”
Many practicing lawyers overlook Justice Department opinions when researching matters for clients, Powell added. “Those opinions are governing law within the executive branch. If you want to know or predict for a client, say, what the executive branch might do about something, or how to resolve some legal issue that you can’t find Supreme Court precedent on, you ought to be looking at what the Justice Department opinions say. It might be directly germane to your client’s particular needs.”
Powell said he is excited about team-teaching with his longtime friend and colleague in government and at Duke who, he noted, has “tremendous, hot-off-the-press experience in the ‘thinking work’ of the executive branch. Students will have a chance to listen to someone who just stepped away from being an assistant attorney general talk about things he is deeply knowledgeable about. It’s a fabulous opportunity.”
An award-winning teacher, Powell’s enthusiasm for executive branch lawyering is clear.
“Many of my happiest professional memories are of sitting in the main Justice building in Washington, D.C., with some really tough questions and two or three other Justice Department lawyers, trying to work out what we thought the best answer was. It doesn’t get any better than that in terms of professional life. And while in a broad sense Chris and I are very much ‘on the same page,’ there will be points where our judgment just goes different ways. And I think it will be exciting to have students involved in hashing out tough questions as well. I know it will be fun for me.
“For me,” said Powell, “there are two perfect jobs in the world. One is being a lawyer at the Justice Department, and the other is being a law teacher. This course allows me to do both at the same time.”