Balkinization  

Tuesday, July 13, 2004

Not Your Founding Fathers' Checks and Balances

JB

Mark Kleiman tries to assure us that we need not worry too much about a second Bush term:
The reason that the American Revolution created a republic that has done so well for so long, while the French and Russian revolutions degenerated so quickly into tyranny, was that the American Framers didn't try to create a government capable of doing great good in the hands of brilliant and well-intentioned people. Instead, they tried to create a government that couldn't do too much to ruin the country in the hands of a bunch of corrupt morons. And they did a pretty good job of it.

Mark's argument actually cuts in the opposite direction he thinks it does. We no longer live under the Constitution of 1787. The basic devices that the founding generation believed would keep the Executive out of the most serious mischief have largely been eroded. For example, Congress no longer puts up much of a fight when it comes to foreign affairs, and that is particularly so when the President and Congress are of the same party. (The Framers didn't imagine that there would be parties, either, by the way). In recent times it has become fairly clear that when the President wants to take the country to war, he can do so, whether the adventure is wise or not, and thus he can drag the rest of the country along with him.

The Iraq war was a case in point. The President was able to get Congressional approval without saying how much the war would cost or estimating how long it would take. (Apparently he was also able to divert money from the Afghanistan War to pay for initial preparations for Iraq.) And once the troops were in harm's way in Iraq, the President simply asked for more and more money without providing very much information about future costs. He essentially dared Congress not to appropriate the money necessary to support the troops. The checks and balances of the 1787 Constitution did not do their job: The Bush Administration bullied its way into a badly thought out and badly executed occupation, creating a terrible mess that we will be paying for years to come-- not simply in money, but in lost lives, frayed alliances, damaged legitimacy and strategic disadvantage.

But, you say, now that the Iraq adventure has proved a fiasco, surely the President will be unable to do much more harm in the area of foreign policy. The preemptive theory of war is as good as dead. Yet the President can still attempt to rule through fear. He can still remind the nation that we are under attack from the terrorists. And, ironically, because he has mismanaged the nation's foreign policy so badly, we are in fact probably in much greater danger than we were before we invaded Iraq. And the worse things get, the more powerful the appeal to fear becomes. Although you may believe that we won't get fooled again, it will take only one more terrorist attack (made possible by the Administration's relative inattention to investments in homeland security) to bring the American people back rallying around their Dear Leader.

Next, consider the nation's fiscal health: A second Bush Administration would have little reason to get serious about the deficits created by federal spending and tax cuts. We have not seen the last bill we will have to pay for the President's Iraqi adventure, and there is no reason to think that the President will not continue to try to buy constituencies off with additional spending. Here again the separation of powers will be of little help: Congress is unlikely to put up much of a fight against out-of-control deficits because they are very largely to blame for helping create them. Neither the President nor the Republican-controlled Congress will consider raising taxes to restore fiscal solvency. Indeed, if anything, they will work together to try to make the unwise tax cuts of the first Bush Administration permanent. As a result, the fiscal problems created by the Bush Administration in its first Administration are only likely to be compounded in the second. Someday the piper must be paid, but President Bush seems quite determined that it won't be paid on his watch.

Finally, although Mark assumes that the constitutional system will keep us safe during a second Bush term, he overlooks the fact that the Constitution as we know it is very much up for grabs in this election. As I have explained in a previous post:

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 [August 2002] OLC [torture] 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.


Indeed the Supreme Court did rap the Bush Administration soundly across the knuckles in Hamdi and Rasul. But the next President will be able to appoint new Justices to the Supreme Court, creating a new working majority that is considerably further to the right of the current one. Don't think that Hamdi and Rasul can't be read narrowly by a future majority of conservative Justices so as to give the President virtually everything he wants. They can easily be so read.

I'm hoping that Mark is right that a second Bush term won't be a disaster. But I'm not counting on it.



Comments:

Was it a fictional Presidential candidate who said: "I'd rather be right than President"? Now with Bush Jr. we have a person who has demonstrated that he's rather be President than be right.

Back in 1968, I was consoling a fellow liberal friend that Nixon's victory did not mean the U.S. would go to ruin. I was proven right. But Nixon did come awfully close to doing so. Bush Jr.'s election (5-4, SCROTUS) was construed by him as a mandate. Look what has happened under his watch. A second term could prove disastrous as JB has well stated. Bush Jr.'s "on-the-job" training has not served us well. Changing horses in midstream may be a concern, but here we have a riderless horse.
 

Speaking of Bush's Art. IIIs, shouldn't someone be citing Jay Bybee's authorship of the OLC torture memo as a counterpoint to Bush's insistence that his judicial nominees are "strict constructionists" or won't "make law" or whatever other canard he trots out for his speeches? (parallel: Bush's "favorite" justice Clarence Thomas is the only one who thinks the president should be able to lock up citizens whenever he wants, without due process). Or are these arguments too arcane to make headway with anyone outside the legal profession?
 

You sound hysterical, dude. "The President is governing by fear and terror!" What country do you live in, anyway? Talk about being out of touch.

Your historical argument (Congress used to put checks on the Executive on foreign affairs) is nonsense. If there is any difference between 1787 and today with regards to one branch of government grabbing technocrat reins with impunity, it is the courts, and you like that, Balkie. Cubbie
 

I gotta tell ya, this shows how short-sighted this administration is. It's run by the same Texassian that when asked about his legacy, said, "History, we don't know. We'll all be dead."

They can load up all the power in the Oval Office if they want, but all it'll take is one election after everything goes down the crapper, then the other guys'll have the power. The reason G. Dubious hadta go and get himself a lawyer over the Novak/CIA operative leak, is because of the rules the Repubs changed during Kenneth Starrgate. Starr argued (and won) that anything Clinton discussed with the W.H. legal counsel was fair game to be revealed during the impeachment. Now Gwubs is in a similar predicament, and he hasta get his own lawyer that isn't beholden to the new Starr rules.

I think they're workin' hard to shoot themselves in the foot.
 

I think we do have to agree that to some reason human frailties were considered and used as advantage in the creation of the checks and balances system, which I took to be the point being made. I don't think stupidity is the issue attacked, tho, so much as human greed. The idea of checks and balances as I came to understand it was not a reliance on the willingness of each of our officials to simply not be greedy for the excess of power that tips the scales, but by reaching for that excess to check themselves. As long as our separate branches of government continue to vie for limited power among themselves, they will check each other in that one branch's attempt to seize power will always result in another branch's quick and decisive action to defend it.

So, imho, the scariest development in our recent history isn't the erosion of our political leader's IQ so much as the development of partisan politics across all lines that so unify the parties in all the branches as to allow Americans to see a unified effort of the judiciary, legislature, and executive to rewrite the president's powers as an action in defense of this country. Moreover, even if merely being a republican shouldn't make you want to see the executive rewritten according to whim, in this day and age you're a bad American if you suggest your president's war powers should be in any fashion curtailed.

To me O'Connor's decision in Hamdi isn't even a slap on the wrist so much as a detailed guideline of how military courts should be assured of avoiding such a wristslap in the future. The legislature has in the last few decades become so fearful of interfering with anything considered a war power of the executive that our executive is now, for the sake of caution, apparently calling everything a war. And our executive is more unceasing in its attempts to recreate the presidential powers than Truman ever was, and far more successful. And the scariest fact of all, to me, is that, given the Bush family tendency to levy wars against abstract notions unrelated to particular national boundaries and see those wars last for decades, there is no foreseeable end to the "war on terror," or the expanded powers the president must be allowed. At least, if you're a "good American."

Christopher Chopin
 

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