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Failures of Courage, Not Law

by danps Sat Jan 24th, 2009 at 05:09:35 AM EST

A new article in The Atlantic argues for a rebalancing of powers in the wake of the abuses of the last eight years, but what ails Washington cannot be cured by legislation.

For more on pruning back executive power see Pruning Shears.


No Associated Press content was harmed in the writing of this post

Garrett Epps' "The Founders’ Great Mistake" in the latest Atlantic looks at the expansion of the executive branch and proposes some remedies.  Articles like his tend to make me feel conflicted because part of me is drawn towards Big Idea discussions - theoretical explorations of how things should be, regardless of practical limitations.  And another part of me loathes it as endless, indulgent, droning abstraction; nothing more than an extended exercise in mental masturbation.  But since we've had two presidents this week it might not be excessive to spend a post on the nature of the office itself.

One of Epps' points is that Articles I and II of the Constitution are the source of many problems.  Article I empowers Congress, Article II the president.  He notes, though, that while Congress "was limited to its enumerated powers, the executive could do literally anything that the Constitution did not expressly forbid."  His remedy:

Article II should include a specific and limited set of presidential powers....It should be made clear, for example, that the president’s powers as commander in chief do not crowd out the power of Congress to start—and stop—armed conflict. Likewise, the duty to “take care that the laws be faithfully executed” needs to be clarified: it is not the power to decide which laws the president wants to follow, or to rewrite new statutes in “signing statements” after Congress has passed them;
I would call this music to George Bush's ears.  Article I, Section 8 takes care of the first part of his recommendation, giving Congress the powers:
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

That seems about as cut-and-dried a limitation on the president as you could ask for.  Similarly, no clarification is needed on the requirement to faithfully execute the law - signing statements are not provided for and a failure to implement laws as passed by Congress is simply illegal.  Both of Epps' recommendations dignify and legitimize Bush-era stances towards the Constitution.  One of them is ambiguity.  For all its good-versus-evil, "with us or against us" rhetoric the Bush administration was positively infatuated with muddying fairly simple issues beyond recognition.  Congress has the power to declare war, period.  What we need is not new language but a new Congress willing to defend its prerogatives.  We need legislators determined to not commit our soldiers to battle absent an formal declaration of war, who won't pass an ambiguous "authorization" as a way of ducking responsibility and giving in to presidential bullying.  

The same is true of executing laws.  If the president won't enforce them or tries to use plainly unsupportable interpretations, the remedy is to haul him into court, not to amend the Constitution.  It seems that Epps, and perhaps a lot of other well meaning analysts, are trying to find a way to legislate around the abuses of the Bush years.  But such efforts are futile, and in fact counterproductive.  The failure of the last eight years is not of laws, but of courage.

Some of his theorizing is more appealing.  He notes "the executive branch is a behemoth...responsible to one person, and that one person, as we have seen, is only loosely accountable to the electorate" and recommends dividing it "between two elected officials—a president, and an attorney general who would be voted in during midterm elections."  That would require no transfer of power and it almost certainly would have produced a better result for the country than the Ashcroft/Gonzales/Mukasey triumvirate did.  Even better, why not move the AG into the legislative branch and formally charge it with the interpretation of laws for the executive branch.  If the president is unclear or is considering some novel interpretation of the law shouldn't the branch that passed it in the first place have the final say?  (Note that this also eliminates the need for signing statements.)

The behemoth could also be cut down in size.  There is no reason agencies like the EPA and SEC should be under executive control.  Moving them and others to the legislative branch would better shield us from the effects of a president who subscribes to the theories of plebiscitary democracy and the unitary executive (i.e. authoritarianism lite).  In the end, though, what we really need are leaders with spines.  It has been our great misfortune to not have them the past eight years, and there is no Constitutional amendment or Backbone Reinforcing Act that can drag them into existence.


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by danps (dan at pruningshears (dot) us) on Sat Jan 24th, 2009 at 05:51:25 AM EST
My understanding is that the White House counsel's office is tasked to provide guidance concerning the legality of legislation and initiatives proposed by the executive. He/she is not the President's lawyer, but the nation's lawyer. When Addington and Yoo rendered opinions concerning, say, the President's power (thought his AG if I'm not mistaken) to make an "enemy combattant" determination, they argued (and still argue) that the President's wartime powers allow this and that Congress enabled the President to take these measures when they passed the AUMF in Iraq.

Proposes what structural changes you may, but I don't think these problems are going away. If the President wanted another John Yoo come the midterms, he'd throw his weight behind the candidate he wanted. Failing that, the President would hire someone to give him the legal advice he wanted in the first place and simply ignore the White House counsel.

Our real option, I think, is to stay awake at the wheel like we're supposed to, and call the President, the press, and all their other enablers when another move like Gitmo is attempted.

"It Can't Be Just About Us"
--Frank Schnittger, ETian Extraordinaire

by papicek (papi_cek_at_hotmail_dot_com) on Sat Jan 24th, 2009 at 07:46:58 AM EST
There may be possibilities other than law and cowardice.  When so many show a lack of courage, one wonders. I'll read the article, but hazard a guess that the old Constitution has been rendered moot by the Media-Entertainment complex (which funds, frames, and presents elections) and the fantastic growth of the imperial military (1000 bases and counting, and significant new institutions such as CentCom that are never covered by the Media and never held to account.)
by cambridgemac on Sat Jan 24th, 2009 at 10:20:42 AM EST
Yes, I think this is worth noting. Bush was certainly trying to talk up the attack crisis agenda long before 911. OBL was simply a convenience to allow him to go to war and then bludgeon the Senate and Congress into doing what he wanted. republicans went along willingly (as did some dems) because of the miltary connection, but an awful lot of dems who ought to have known better kept their heads down.

I don't think hoping for a better class of democrat really cuts it, Rumsfeldt was right in that you go into battle with the army you have and the Democrats seem to be pretty good at picking spineless jellyfish who lack principles or any idea of what they stand for.

So I do believe constitutional change is needed. You have to ask what were the three things Bush did that were worst and ensure legislation is passed or constitutional amendments, whatever, to ensure that no future president has such options available.

keep to the Fen Causeway

by Helen (lareinagal at yahoo dot co dot uk) on Mon Jan 26th, 2009 at 11:22:07 AM EST
[ Parent ]
The concept of a constitutional amendment is a non-starter.

The country is so divided that it would never happen anyway. (I had the horrible experience of tracking down some background on a common urban legend that a friend sent me. One of the google links was to a freerepublic thread. Zounds. The scary certainty of paranoia.)

In this environment, anything that came out of committee would certainly be very bizarre anyway. It would probably start out by saying, "In the spirit of those who survived 9.11 and the memory of those who didn't..."

Perhaps it is that the exec, the legislative and the courts have become a mirror of the "I don't care what they are ripping off, as long as I have a lottery"-mentality that much of society has devolved to. There is no way to legislate that the three groups "must do their jobs."

Never underestimate their intelligence, always underestimate their knowledge.

Frank Delaney ~ Ireland

by siegestate (siegestate or beyondwarispeace.com) on Tue Jan 27th, 2009 at 05:05:11 PM EST
[ Parent ]


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