an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The White House must be really desperate to avoid any congressional investigation into whether the NSA's domestic spying program violates the law. How else to explain this remarkable letter? (Senator Frist demonstrates here that he is entirely a puppet of the Republican Party has absolutely no interest in preserving the Senate's institutional interests -- not that there's anything wrong with that, right?)
You see, rather than performing the critically important role of (in Frist's words) "conducting oversight of the intelligence community and its activities," the Senate Intelligence Committee Democrats -- and some Republicans (Snowe, Hagel) who actually care about the laws they are charged with overseeing -- are outrageously attempting to . . . conduct oversight of the intelligence community and its activities! For shame! You see, investigating whether the President is abiding by the laws enacted by Congress -- those carefully designed to strike a balance between the national security needs of the Nation and the privacy of Americans -- or whether he is instead trying to arrogate all power to the Executive, to the point where Congress, and statutes, are mere trifles -- is a project that "offers little (or no) value to the challenges our Nation now faces."
As a remedy, Frist threatens to alter the 30-year-old bipartisan nature of the Intelligence Committee -- which permits investigations to go forward on a motion of the minority party (the Vice-Chairman), if there is a majority of members in favor. Much more on this development from Glenn Greenwald.
It's a fairly notable day, isn't it, when the Senate Majority Leader is willing to take all necessary steps to emasculate the Senate's ability to check the Executive branch?
Anyone know whether the executive replied to House Judiciary Committee Chair Sensenbrenner's 51 interrogatories regarding wiretap oversight. In Chairman Sensenbrenner's February 8 letter of transmittal to Attorney General Gonzales, it was requested the administration to respond by March 2, 2006. On the senate side I would be surprised to see Roberts' committee be restructured; or, if restructured, that it would remain so reconfigured for much longer than it takes to vote a new majority to the Senate.
I take a less apocalyptic view than most observers regarding the shifting hegemonies in the Senate, though multiple unusual short shriftings of traditional procedures have raised doubts in many quarters; indeed, I share the view that processes appear to have leapt out of control in structural constitutional ways which, if these had been addressed, say, in the form of a congressionally passed straightforward proposal to amend the constitution, would have nil chance of approval by 3/4 of the states.
Nevertheless, there are elections. We tell ourselves that. Votes are counted. Elections are decided at the polls. The Gingrichization of the Senate may be the product of worry on the part of the Republicans that their total dominion has a brief halflife, and the Gingrich model was efficacious, during its brief scintilla of existence before the two-party political system normalized its excesses over subsequent elections. Frist's latest suggestion (there were others such as the cloture dissolution by simple majority theory which he declared) is a quick adaptation of the Gingrich cookiecutter approach to how to wield power in congress; it is curious that Frist has overseen several efforts at restructuring the way that chamber operates. I suspect the desired effect is longterm in addition to the instantaneous objective of reining in the Senate Select Committee on Intelligence. Roberts certainly must be enjoying Frist's support once again, as Roberts incrementally has molded that committee to conform to his strikingly reserved views.