A government of men, not laws
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.
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October 20th, 2007 at 5:22 am
Sorry for poking in where I don’t belong, I was hoping for some clarifications… what about the Federal Reserve and FISA? Those are unconstitutional. The Fed prints money, buys bonds, and then the public pays income tax to pay the interest where none of that money ever goes to government. Money is more powerful than any law, even your constitution. You can’t even challenge FISA because it’s secret. Where do these things classify?
Is it the fact that your president doesn’t even attempt to get a bill passed to bypass the constitution (like FISA and the Fed)? I don’t see the difference in what method you use. Could you explain why the method of bypassing the constitution is important, rather than the fact that it *is* being bypassed?
Just as a side-note, many governments have instituted some sort of fiscal responsability laws like having a balanced budget. This seems to come up in the news every now and then. How much do you think this would have helped in these checks and balances as to what Bush would be allowed to do (though war is usually an excuse to bypass laws), and what risk do you see this having on keeping the military power of the US? These are more rhetorical than anything. I think there is a reason that all funding bills are passed.
Again, apologies for the intrusion. These topics do have relevance where I’m from as well, so I’m interested to see where these kinds of conversations go.
October 20th, 2007 at 8:19 am
The route America has taken the last few decades was directed by vastly wealthy interests wisely changing the nature of the dialog that dominates the public discourse. The Rush Limbaughs of America and its consolidated media and press (the FCC is considering further consolidation) now happily tell us that “The constitution is not a suicide pact.” Compare that to the original American freedom fighters and their “Live free or die.”
As Bush has pointed out with reference to Social Security bonds and their paper base, the constitution is just a piece of paper. If the police are criminals, the noblest of laws don’t mean a thing.
Look at the recent hearings for a new “top cop” of the Department of “Justice.” The proposed “top cop” is absolutely certain that the government does not “torture,” but he can’t comment on the specifics because he hasn’t seen and does not know the actual methods involved. He guarantees “torture” does not match the infinite possibilities of a complete unknown. That seems like a mathematical definition of meaningless.
America’s congress is considering passage of a law legalizing any crimes that may have been committed by telecom companies the last few years, even though the people demanding the retroactive legalization resolutely claim no crimes were committed. Kafka must be ROTFL in his grave.
October 20th, 2007 at 12:23 pm
Something I forgot. It’s a point I thought I’d made in a comment to a Charlie Savage post at Balkinization but I can’t find it (assuming I made it there and it was allowed and kept).
Regarding Bush’s signing statements, I thought they had a similarity to Clinton’s line item veto. I know Clinton’s purpose was to get around the poison pill aspect of congress stuffing pork or highly questionable provisions into basically essential bills, but at its core a line item veto is a president saying some part of a law is unacceptable and won’t be enforced by the executive branch - the only branch with enforcement abilities. The “veto” aspect may allow for a congressional over ride but that’s a secondary point.
The Supreme Court quickly killed Clinton’s line item veto and that in it self suggests how things are different if a Republican is claiming special powers. My impression was that in the past when some court case came up with great significance to the nation that case was given a fast track to the Supreme Court. In contrast with the Bush presidency cases challenging fundamentals like habeas corpus, government surveillance, search and seizure, etc., not only aren’t fast tracked, they’re “slow” tracked. The cases work their ways through the levels of courts and if they should eventually reach the Supreme Court, the court seems to often find some minor point to use as a basis to send it back to the lower courts.
My impression of this change in court approach is that this Supreme Court is loathe to challenge Bush and restrict his power grabs but even more loathe to rule in a way that makes itself irrelevant - rule that they no longer can rule on a matter. The court thereby effectively gives Bush almost all the power he wants, only slightly redirecting him on occasion, yet it leaves itself open to kill all those powers for the next chief executive.
October 20th, 2007 at 8:13 pm
Al Gore’s book ‘The Assault on Reason’ addresses exactly this theme of the over-powerful executive and the growing imbalance of power between the three branches… everyone should check it out.