Thoughts occasioned by the confirmation hearings for Michael Mukasey to become the next U.S. attorney general:
Apparently there have been some interesting changes in the whole notion of the constitutional balance of powers since I studied such matters. As most of us learned at some point in our schooling, there are three branches of government established in the U.S. constitution. Congress passes the laws, as defined by Article I. the president executes the laws and handles a bunch of other stuff as defined by Article II. And the supreme court interprets the laws, as defined by Article III. Yes, I’m aware that the whole judicial review thing evolved over time and wasn’t grounded that explicitly in the constitution’s language. On the other hand, it’s served us pretty well for over 200 years, and it has been a keystone of the checks-and-balances system that has proven so resilient over those centuries.
Under the Bush administration we have seen two fundamental assaults on this system. One, embodied in the idea of “signing statements” that the president makes when he signs congressional legislation, proposes that the president is himself equal to the supreme court in his power to review the constitutionality of legislation. According to this notion, the chief executive has the unilateral authority to say, “I don’t think this or that part of this law is constitutional, so I will reserve the right not to enforce or obey it.” He’s not saying, “I think this is an unconstitutional law, so I’m going to challenge it before the supreme court.” He’s saying, “I think this is an unconstitutional law, so I’m going to ignore it.”
The second assault centers on the notion of the “unitary executive.” This theory proposes that the entire executive branch is a sort of “off limits” zone for congress. To the extent that a congressional law or rule constrains the president’s authority over the executive branch in some way, he is free to ignore it, because it’s unconstitutional — and, right, he gets to ignore laws he believes are unconstitutional.
Put these two notions together and you have, I think it’s fair to say, a whole new game in the federal government town. Forget checks and balances, or “government by laws and not men.” Say hello to a new world in which the unitary executive claims supremacy over both the congress (whose laws he can ignore at will and whose powers cannot reach into the executive branch) and the supreme court (whose role as reviewer of the constitutionality of legislation the president is now quite able to assume himself).
Now, it’s true that, as we say here on the Internets, I am not a lawyer. But I’m a citizen. And I have to report that these new ideas about the constitution make me a little concerned for the future of our political system.
I know that we have a vice president who got, let’s just say, peeved that the congress reined in a criminal president back when he was a young man, and who has spent the rest of his life itching to redress that old grievance. But this isn’t a partisan matter. An autocratic view of the chief executive — which is what Bush’s lawyers have propounded, and Munkasey, for all his superior forthrightness compared with the henchman who preceded him, endorsed in his testimony today — is a time-bomb for both parties. Once precedents for unchecked authority are set, who is to say that a Democratic president might not avail himself (or herself) of them?
“Checks and balances” is a big fat cliche, but it’s also a foundation that has supported two centuries and more of American political stability. Long after the pathetic corruptions and petty inhumanities of the Bush administration have receded from view, we’re still going to be trying to patch together a constitution that the Bush/Cheney legal establishment has shredded.
[tags]u.s. constitution, unitary executive, judicial review, michael mukasey[/tags]
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