Can one person change the law?

December 21, 2008 7:48 PM

PoliticsLawFilter: Dick Cheney's lawyer, David Addington, wrote a series of papers/statements/memos that ostensibly change an existing law. How can one lawyer, or even a team of lawyers, change a law by simply writing a memo? Is this even possible?

I'll leave my opinions about this elsewhere, so please do the same and just speak to the legality and legal process of this. Cheney and Addington are presumably intelligent men, so they must have some reason to believe that writing those memos will accomplish their goals...what's the precedent? And were those memos meant for? the media, or for the Justice Department, or...what? Where did he send them and why?

Obviously I know next to nothing about the law, I'm just curious about the system at work. So MeFi lawyers, help me out.

For background on what I'm referring to, click here for starters.

posted by zardoz to law & government (16 comments total)

The law is what everyone agrees it is, or allows it to be. If no one with the appropriate authority and will challenges the administration on its findings that something is legal, then, kerbloop. It's legal.
posted by Etrigan at 7:51 PM on December 21, 2008

Technically, Addington offered an opinion, which the administration used to guide its actions. The memos didn't change the law, just offered an interpretation of it. Now, obviously, if the interpretation takes some liberties here and there, and if that interpretation forms the basis of enforcement, it's going to have the effect of changing the law. And the executive probably won't be punished for it. But, basically, the answer to your question is "no."
posted by smorange at 7:56 PM on December 21, 2008

Congress passes law. Executive is tasked with enforcing it. Executive branch writes memo stating that they believe law to mean "X" and enforce it as such. If nobody sues, there you go. If someone does sue, it goes through the court system for interpretation.
posted by gjc at 8:02 PM on December 21, 2008

Those memos are not the law. Addington and Cheney would dearly love to believe that, but what was done was extra-legal and unconstitutional. They drafted these memos to justify the Administration's actions. They essentially represent a series of legal theories about why their actions were correct. These questions are to be decided by courts who are hearing cases from people who suffered as a result of those decisions. These courts will read those memos and make the decisions on whether or not the Administration and Cheney and Addington were right.

The thing is, Obama's Justice Department will get to decide the legal strategies in defending these cases. They could settle them, or choose to fight them on procedural or other grounds so as to avoid advancing the theories that Cheney and Addington used to justify their actions.
posted by Ironmouth at 8:11 PM on December 21, 2008

For some excellent background on this, the Frontline episode Cheney's Law goes into this in some detail.
posted by stavrosthewonderchicken at 8:21 PM on December 21, 2008

See also "Presidential Signing Statement" and "Executive Order".
posted by Chocolate Pickle at 8:57 PM on December 21, 2008

What is being said above is pretty much on target - Cheney and Addington would like the law to be XY&Z, and so they write a memo saying that it is. Given their place in the administration, that memo might be given a great deal of deference by the courts. ("Institutional competence" is a very important and highly debated doctrine which comes into play here. In a nutshell, it means, "is this a question which the courts are best qualified to decide, or should we leave this to executive/legislative discretion?" The Warren court generally sided with the judiciary. Roberts does the opposite - for now.) If someone sues to get the courts to interpret this themselves, and the courts hear it, the courts may give Cheney's memo a lot of weight, but in the end it is the court's decision which officially interprets the law. Until the next time the court has to officially interpret the law.

As for how much one lawyer can change the law, let me tell you a little story about "Footnote 4." Virtually all of the "law people" here already know what I'm talking about, and virtually nobody else does. This is that kind of thing. Anyway.

Footnote 4 is exactly what it sounds like, written into a case called Carolene Products. The case itself had to do with Skim Milk and the Interstate Commerce Clause, but in this one footnote, the idea of different levels of scrutiny is discussed, and the phrase "discrete and insular minorities" is brought up for the first time.

This phrase would go on to form the basis for almost all equal protection doctrine under the fourteenth amendment. If Prop 8 ends up before the U.S. Supreme Court, the primary question will be whether or not gays and lesbians count as "discrete and insular" as ws meant in Footnote 4. Everything comes back to this.

And it was written, not by a judge or justice, but by a clerk named Louis Lusky, and added onto Justice Stone's opinion. While only the best of the best can get a job as a Supreme Court clerk, they are neither elected not appointed. They are simply hired to come in and help write the law, generally fresh out of law school before they've gotten any practice under their belts. Most will begin work without being admitted to the bar yet. In Lusky's case, that turned out well, but yes, a single person, without have any official power vested in them, may change the law a great deal if the circumstances are right.
posted by Navelgazer at 9:33 PM on December 21, 2008 [2 favorites has favorites]

I have nothing to add to the legality, but anything with the word "LaRouche" in the title ought to make you think twice about its reliability.
posted by SamuelBowman at 2:59 AM on December 22, 2008 [2 favorites has favorites]

>If someone does sue, it goes through the court system for interpretation.

Make that "it might go through the court system". Very often it will not. The Federal courts have been enforcing (or over-enforcing, you may say) the rules governing standing. They won't just let any old Joe use the courts to challenge what he thinks was illegal action by the Executive Branch.
posted by yclipse at 3:50 AM on December 22, 2008

I have to agree with SamuelBowman. If I read an article from LaRouchePub declaring that the sky was blue, I'd go outside and factcheck it.
posted by DWRoelands at 4:24 AM on December 22, 2008 [2 favorites has favorites]

The Federal courts have been enforcing (or over-enforcing, you may say) the rules governing standing.

And it's not only standing keeping the issues out of court. There are also the doctrines of political question non-judiciability, as well as challenges to the jurisdictional reach of our Constitution and laws (e.g., whether the the Guantanamo detainees are protected by the law).
posted by footnote at 5:31 AM on December 22, 2008

Here's the 30 second version. The EIR (which is batshit crazy in many regards, but not I believe in this regard) says Addington was involved in developing the so-called Torture Memos. These were issued by the Office of Legal Counsel at DOJ. That office is charged by statute with providing authoritative legal advice within the executive branch on questions put to it under a variety of circumstances; they are binding within the EB until the underlying law is changed (as it may be by the President, depending on what is being construed). It is sounder to say that they established the interpretation of governing law for the EB -- which as a practical matter affects others outside it (e.g., someone being tortured), but does not alter the law on which they may rely.

As others have pointed out, EB interpretation of a law may be given deference, or may be hard to challenge, but that is not the same thing. And to answer your broadest question, the President may be one person who can change the law -- e.g., by adopting an executive order using authority delegated by Congress or by the Constitution.
posted by Clyde Mnestra at 6:13 AM on December 22, 2008

Jane Mayer's The Dark Side: The Inside Story of How The War on Terror Turned into a War on American Ideals goes into great detail on this topic. You will read all about the politics of writing the memos. Clyde Mnestra's 30 second explanation jives broadly with Mayer's explanation of the memos.
posted by crazycanuck at 6:40 AM on December 22, 2008

Here's Jane Mayer's much discussed New Yorker article on David Addington. And here's an interview that she did on Fresh Air in 2006, right after the article appeared.
posted by marsha56 at 6:48 AM on December 22, 2008

In addition to justifying the administration's actions, the Torture Memos also provide protection to the people who follow those memos. Defendants can claim that they should not be prosecuted because they were merely following the recommendation of the Office of Legal Counsel. Whether or not it's a winning argument, it gives them something to claim.

Another terrific book that covers many of these issues is Takeover by Charlie Savage.
posted by Tin Man at 8:13 AM on December 22, 2008

Thanks to all for the answers. And, no, I'm not a Lyndon Larouche weirdo; I frankly wasn't paying close attention to which article I chose to link, it was out of many.

There are a lot of good links here to sift through. Kudos!
posted by zardoz at 3:32 PM on December 22, 2008