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When Is “Undersight” Unconstitutional?—A Commentary by Ian Ayres ’86

The following commentary was posted on newyorktimes.com on January 5, 2011.

When Is “Undersight” Unconstitutional?
By Ian Ayres ’86

If oversight is when a superior has the right to disapprove of an underling’s decision, what is “undersight”?

It’s my term for when an underling has the right to disapprove of a superior’s decision. It’s not surprising to see principal-agent contracts with oversight provisions, but in two recent statutes the lame duck Congress has arguably imposed undersight provisions on the President acting as our commander-in-chief:

•A major defense authorization bill, which “both chambers passed on the last day of Congress’s lame-duck session” included a “provision [that] forbids the transfer of any detainee to another country unless Defense Secretary Robert M. Gates signs off on the safety of doing so.”

•The ‘‘Don’t Ask, Don’t Tell Repeal Act of 2010’’ only becomes effective, inter alia, 60 days after the President “transmits to the congressional defense committees a written certification, signed by the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff, stating [that] the implementation of necessary policies and regulations pursuant to the discretion provided by the amendments made by subsection (f) is consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed Forces.”

These acts are constitutionally troubling because they undermine civilian control of the military. It might be permissible for Congress to delegate a purely ministerial function to an underlying. For example, it might be permissible for Congress to condition an appropriation on a non-discretionary accounting (such as when the “Strom Thurmond National Defense Authorization Act for Fiscal Year 1999 suspended DOD affirmative action in any fiscal year directly following a fiscal year in which DOD certified that it awarded at least 5% of its contract dollars to small disadvantaged businesses”). But it strikes me as impermissible for Congress to give a non-civilian underling veto power of military policy. And to be clear, our military leaders are constitutional underlings to the President because of the commander-in-chief clause.

These recent undersight provisions remind me of the wrong-headed reconstruction amendment to the Army Appropriation Act, which required Andrew Johnson “to transmit all orders to military commanders through General of the Army” Ulysees S. Grant. One way to avoid the constitutional difficulty is take the “commander” in “commander-in-chief” more seriously. These three underling provisions on policy would not be troubling if the President could simply order his underling to make the requisite statutory certification. But the intent of Congress in the GITMO, DADT and reconstruction examples seem to be to insert an underling as an independent decision maker. It’s not surprising that Obama’s lawyers are debating whether to issue a signing statement “asserting that his executive powers would allow him to bypass the restrictions.” One can make a principled distinction between a President resisting a Congressional ban on torture and a President resisting a veto from a constitutional underling.

Ian Ayres is a professor of law and economics at Yale. Follow @freakonomics on Twitter.