You know the old saying, “those who can’t do, teach.” When I was in private law practice, I took that saying as gospel. Now that I teach, I’m not so sure I like it, or that it’s true. I think a better phrase might be, “those who teach, should be careful what they do.”
The beauty of teaching, particularly in a law school, is that you get to suppose and propose all types of innovative theories as to how to make the world better, without the burden of having your theories tested in the real world. That doesn’t mean your theories are ignored or wrong, it’s just that there is a real world person (lawyer, judge, client, juror, etc.) who acts as a filter to translate your theories into practice.
The Obama administration increasingly is being run by law professors. The law-professor-in-chief is Obama, who used to teach part time at the University of Chicago Law School. Other law professors are staffing the Justice Department’s Office of Legal Counsel, and sundry other agencies which put theory into practice. Critical decisions on executive power, the economy, interrogation methods, national security, and other life and death matters will be made by people who have devoted their careers to proposing theories as how to make the world better knowing that their theories were just theories.
The problem is, in the Obama administration there does not appear to be a filter since the theorists are the ones making the decisions. If the Office of Legal Counsel advances an innovative legal theory as to whether Obama has the authority to take a particular action, Obama’s hands will be tied lest he be accused of violating “the rule of law.” If Obama receives legal advice that the administration needs an Act of Congress before committing U.S. troops to any battle, who in the administration will argue in favor of following the contrary practice of prior Democratic and Republican administrations? The consequence of unfiltered innovative legal theories limiting the role of the executive may be that Americans die.
Innovative legal theory in a law school setting is a thing to be praised; innovative legal theory in an administration is dangerous to the welfare of the nation. While the various Obama law professor appointees all may be good people, are they really the good people we want making decisions on national security?