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January 2017

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Subject:
From:
Michael O'Hara <[log in to unmask]>
Reply To:
Academy of Legal Studies in Business (ALSB) Talk
Date:
Sun, 29 Jan 2017 16:29:13 +0000
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ALSBTALK:

Executive over reach is an unlawful choice.  A very different question is whether the choice is good policy.

President Jefferson multiple times concluded the pressures of the moment on the office of the President urged as good policy acts he previously (when he did not occupy the office) had publicly categorized as executive over reach (e.g., act of war).  Other Presidents were primarily different in that they had not spoken so publicly on the limits of the office prior to occupying the office.

Judicially, Justice Frankfurter famously observed that the altitude affects the attitude.

In short, a person's good faith perceptions might vary materially when the context of one's perception changes materially.  Critically, what once was viewed as an unambiguously unlawful choice might come to be perceived as such a good policy as to be transformed into a lawful choice.  At the same time and in the same context another observer might hold an invariant good faith observation of the range of lawful choices from which good policy choices are constrained to be selected.

Lawful does depend on who is President.  Whatever criteria of lawful executive  action is used for the 44th President ought be used for the 45th President:  and visa versa.  What does depend on who is President are (1) the viewer's array of preferred policy choices; and (2) the viewer's trust of the President in question.  

I recommend legal analysis focused on the law rather than policy and person.  Once the range of lawful choices is identified, to my view, only then can "good" policy be chosen since unlawful choices, in my experience, are not good policy.

Michael J O'Hara:  from phone

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