Rand Paul continues to attack the President on his refusal to allow the judicial process to intervene in his drone policy:
“I was pleased with his words,” Paul said. “However, there still is a question in my mind, of what he thinks due process is. Due process to most of us is a court of law, it’s a trial by jury, and right now their process is him looking at some flashcards, and a Power Point presentation on Terror Tuesdays in the White House. For a lot of us, that’s not really due process.”
You may recall in a speech Eric Holder gave at Northwestern last year, he stated that “due process” does not translate to “judicial process.”
Paul continued that he wants the President to disclaim this power. It’s not enough for him to say he’s not going to use it.
“It’s not good enough to us that he’s not using a power,” Paul said, “we want him to assert that he doesn’t have the power. Last year, we passed legislation—that I voted against, and many civil libertarians opposed—and that’s detaining citizens indefinitely without a trial and sending them to Guantanamo Bay. The President said he won’t use that power. But we think a President who really believes in civil liberties would have vetoed the bill.”
Alas, the Commander in Chief is loathe to ever disclaim any power. Look no further than the ACA arguments, when the Solicitor General refused to say whether it would ever actually impose a broccoli mandate.
Katyal believed that the government had to embrace these precedents and offer a coherent limiting principle in order to win. Within the government, there was a resistance to Katyal even articulating limiting principles. One DOJ lawyer told me that the difficulty with answering the question “Can the government do X” (such as, can the government make you buy broccoli?) “is that maybe one day Congress will try to do X.” The government “never wants to give an answer whether something in the abstract is constitutional or not.” Doing so may preclude future governmental action. This explains Solicitor General Drew Days’s strategy not to answer questions about limiting principles in United States v. Lopez, the gun-free school zone case. This principle is also probably why Attorney General Eric Holder would later equivocate over Sen. Rand Paul’s question about whether the president can order a lethal drone strike of a U.S. citizen on American soil. Only after a twelve-hour filibuster did Holder answer clearly, “No.” The government is loath to disclaim any power in advance of using it, no matter how unlikely it is that the power will ever be exercised (whether it be to approve domestic drone strikes or impose broccoli mandates).