Balkinization  

Tuesday, June 22, 2004

The Election and the Constitution

JB

Jonathan Chait thinks the 2004 election isn't very important. Matthew Yglesias disagrees, pointing out that the election will decide, at the very least, whether Bush's tax cuts become permanent, and which team will have to deal with the many exigencies that await us.

I think there is another reason why the election of 2004 is important. It concerns the American Constitution.

The Bush Administration has promoted a highly controversial constitutional vision of the Presidency. It seeks to push the envelope of presidential power while preventing oversight by the Judicial and Legislative branches of government. This vision of the Presidency is organized around the notion that the Commander-in-Chief can do pretty much whatever he likes in time of emergency, and what constitutes an emergency is determined by the Commander-in-Chief. It is the constitutional equivalent of Bush's repeated declaration that he is a War President and his is a War Presidency, that 9-11 "changed everything" and that the President must be free to do whatever he can to protect the Homeland.

In the past three years, the Bush Administration has reinterpreted the Presidency, and hence the constitutional system of checks and balances, in the image of an all-powerful Commander-in-Chief. In its most extreme form, it produces the logic of the OLC torture memo, which asserts that Congress may not interfere in any way with the President-as-Commander-in-Chief, and that all laws and international obligations that might interfere with his decisions as Commander-in-Chief must be construed not to apply to him. This view of Presidential Caesarism (for that is what it is), is accompanied by an obsessive concern for secrecy and avoiding all forms of transparency and accountability. Although this Administration's disdain for accountability and transparency has been defended most recently in terms of the Commander-in-Chief Power, this trait emerged long before September 11th; it was at the heart of Vice President Cheney's refusal to reveal the members of his Energy Task Force, and President Bush's decision to withhold access to presidential papers.

Make no mistake: The Administration's vision of the Presidency is a constitutional interpretation, and, more to the point, it is an interpretation that the Administration can make a lasting part of our Constitutional system if it is returned to office. Even if the Supreme Court stands up to the Bush Administration in the series of cases that will come down this week or next, the Courts need the support of Congress to really check the power of the Presidency, and the Republican-controlled Congress has been so far unable or unwilling to exercise any significant oversight over this Presidency. Indeed, the greatest oversight has come from the independent bipartisan 9/11 Commission, which the Administration (not surprisingly) opposed, and which Republican leaders in Congress tried to close down early.

If President Bush is reelected in 2004, there is no reason to think that we will not see an even more aggressive attempt to redefine the powers of the Presidency at the expense of accountability and transparency. The Republican leadership in Congress has had no stomach for challenging the President in any important issue of foreign policy, and many conservative intellectuals have been cheerleaders for an ever more powerful Executive and for the political glorification of a War Presidency. The Administration well understands this, and so it has attempted to govern, as much as possible, through the constitutional persona of Commander-in-Chief. It sees that the way to maintain and increase political power in the present moment is to play the War on Terrorism card repeatedly and without shame or scruple, and turn the Commander-in-Chief Clause into the single most important grant of power in the U.S. Constitution. As the OLC memo shows, in the constitutional vision of the Bush Administration, the constitutional power of the Commander-in-Chief clause is more important than the President's duty to take care that the laws be faithfully executed; it trumps the legislative power of Congress; it is even more important that the procedural protections of the Bill of Rights. The Constitution we are likely to inherit from a second Bush Administration will be a bit like the famous New Yorker cartoon of the New Yorker's vision of the World, with the Commander-in-Chief Clause dominating the page in powerful, large letters, and the rest of the Constitutional text shrinking away into tiny, barely readable prose.

Add to this the fact that, if elected, President Bush will be able to appoint one, and possibly two or three Justices to the Supreme Court, who will be all the more willing to allow the President to do as he likes. Even if, as I hope, the Supreme Court raps the Administration across the knuckles in the next few weeks, those decisions can easily be distinguished and undermined in the next series of cases decided by a Court stocked with conservative true believers. With all three branches of government sharing a common ideological vision, the Bush Administration will be able to solidify its Caesarist vision of the Presidency for years to come. That is a prospect that should worry any of the friends of liberty.


UPDATE: Ernie Miller shows us what the new Constitution will look like.



Comments:

I would argue that this is one of the most important elections in our nation's history. We have lost all creditability in the world. The gap between the haves and the have-nots is increasing everyday. We are exporting our jobs and entire sectors of our economy overseas. A culture of greed reminiscent of the 1980s has infected our banking, insurance, and health care industries.

This administration constantly pushes the envelope of what is "legal" and has done some incredibly bizarre and radical things that have threatened the privacy rights of all Americans. Not to mention the guy ran on returning more local control of the schools, and then passed the largest educational mandate in history that is slowly destroying our public school systems. Oh, did I mention our federal deficit is skyrocketing too!

How can we promote democracy around the world, when we have an administration that doesn't even respect fundamental principles such as due process protections for the accused?

What amazes me more than anything is that there isn't more outrage then there is! Every night I watch the news and my jaw drops to the floor in pure amazement of what these folks get away with. Maybe I'm just blinded by my ideology, but the brazenness of these folks is just amazing.
 

Chait seems to be saying that economically, 2000 was more important than 2004. I don't know if he means overall 2000 was so much more important. If he is suggesting that, I share your belief that this is a misguided view. Re-election will be a clearer mandate and bring forth four more years of Bush Administration executive abuse. Money isn't everything.
 

It is interesting that the same jurists that attack individual rights based on an overfly-flexible "living constitution" have no problems finding innumerable points of flexibility in the same document when seeking to expand the Executive's power.
 

Yes, Bush will be able to appoint justices if re-elected and he's already on record as saying his 2 favorite justices are Scalia and Thomas. If O'Connor resigns, and someone like Scalia or Thomas get appointed, then Roe vs. Wade can very well be over-turned. Bush will inflict more damage if re-elected, and in that event, as income inequality grows and it becomes harder and harder for people to get a college education, you are likely to see more homelessness.
 

"In its most extreme form, it produces the logic of the OLC torture memo ...."

The word "yet" should be inserted after the word "form" in the above sentence fragment, unfortunately.
 

Great article. I hope more people read it and realize what re-election means to them.

Not-an-American
 

The 2004 election is imporant regardless of the constitutional issues and the potential shape of the Supreme Court - at least to anyone who is young. Bush & co. will interpret re-election as a green light to make the current tax cuts permanent. He will also press for more cuts. And we haven't even began to feel the impact of the cuts. That will come with time. He and most Congress members won't pay for those tax cuts. Neither will most voters, who, overall, tend to older. It is younger Americans who will pay. And few people my age vote or have the loudspeakers - money or media connections - to voice political opinions.

In truth, if Bush & Co. are re-elected, I have little faith their fiscal irresponsibility could be stopped or slowed even if younger America had greater political voice. In general, thanks to our 'bounded rationality' - or unbounded irrationality, whichever you prefer - voters and the public at large value money now much more than money and services in the future.

Bush may expand the bounds of executive, the Supremes and Congress may hesitate to check him now, but nothing precludes future checks. In other words, I think the damage to the balance-of-power among the branches is unlikely to be permanent, altough it might leave some long term imprints. The Supreme Court knows how to leave "wiggle room" in the decisions; they are unlikely to provide unqualified and irreversible leeway. In addition, the Supreme Court changes, altough slowly. So does Congress. So does the political climate.

I guess you can also argue that Congress might also eventually reverse its overall current weak-kneed stance and reverse the tax cuts, or - God forbid - pass tax increases. However, I think that is much less likely than Congress or the Supreme Court finally using its power to check the Presidency.
 

I like your blog here. Any others? I have a couple too. Keep up the good blogging.

regards,
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