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
Abbe Gluck abbe.gluck 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
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The proposed creation by President Bush of a "bi-partisan commission," to be chaired by Robert Dole and Donna Shalala and charged with looking into the treatment of injured veterans, shold be recognized as the contemptible sham it is. There is no reason in the world to have such a commission to duplicate what Congress itself can do altogether well (especially because Congress has the subpoena power). Commissions are useful primarily--and perhaps exclusively--when there is good reason to believe that the normal political process is not operating, perhaps because of the volatility of the issue (social security, base closings) or because one simply doesn't trust Congress, for reasons of political party control, to be sufficiently vigilant in seeking out all relevant information (the 9/11 Commission). There is also justification for "expert" commissions dealing with controversial scientific issues, such as the pace of global warming. None of these conditions obtains with regard to how injured veterans should be treated. This is not a "third-rail" issue; indeed, both parties are united in their justified outrage over the disclosures. Nor, obviousy, does a Democratic Congress have any incentive to avert their eyes from recognizing that responsibility for the disgraceful treatment might be traceable to decisionmakers beyond the hapless generals who are currently being set up as the fall guys.
Instead, this is just another attempt by the Bush Administration to pick its own overseers. Robert Dole may be a genuine war hero, but he is also an octogenerian Republican Party loyalist who is unlikely to wish to make trouble for Mr. Bush (any more than the Schlesinger Commission, which investigated Abu Ghraib for the Pentagon and wrote a quite good report, was willing, when push came to shove, to bite the bullet and hold Donald Rumsfeld and his minions responsible for what happened there); Donna Shalala, so far as we know, is still a full-time president of a major university. Why didn't the President suggest former Sen. Max Cleland, a disabled veteran and former head of the Department of Veterans Affairs? After all, he has far more free time than President Shalala, not least because Republicans had had no compunction about savaging him during his bid for re-election to the Senate.
When last I checked, we still had a Congress of the United States that is charged with oversight of the Executive Branch, fully capable of holding hearings (all over the country), and drafting corrective legislation if such be needed. But, of course, the Bush Administration's motif has been to express utter contempt for Congress as a co-equal branch of government (save when it loyally does its Executive master's bidding, as with the rush to passage of the Military Commissions Act).
There is simply no need or excuse for this commission. Any of our tax dollars spent on it will simply be wasted. One might think that people purportedly obsessed with cutting "the fat" out of federal expenditures might hesitate to set up another absolutely useless commission. But not, of course, when such expenditures fit their own political agendas.
Presidents of both parties set up commissions every time some scandal or disaster hits. These are meant as executive oversight, not as a replacement for congressional oversight. If the President's own officers did the executive investigation, they would be correctly be accused of being biased. To avoid this charge, a President trots out some elders from both parties; who draft up a report, hold a press conference and are then generally forgotten.
We all know this Bush dog-and-poney show is pro forma theater to appear concerned, when the President never listens to anyone, anyway. The allusion of doing something has been GWB's modus operandi for over six years.
Four months ago, the country voiced its desire for change. No more rubber-stamping Congresses acquiescing to an autocratic Duarchy of incompetence and malfeasance. What has the Voice achieved? Not much of anything. A few symbolic gestures, and a couple of indecisive near-resolutions.
Iraq continues. The VA will look the same for years. Etc/ And, so we continue to let the Executive Duarchy dictate inaction, because a divided "opposition party" cannot unite to oppose the Duarchy's malfeasance. They cannot achieve consensus, even if the nation has, and voted for a sea-change. All that has happened is a few changes in seats.
Echoing Lee Hamilton's retort to Hilary's stunning question, "What can Congress do?" responded, "Demand accountability." Duh?
"Hey, look over here! We're investigating ... [<*sotto voce*> ourselves]. No need to bother, we'll tell ya what we find ... believe me, we'll get to the bottom of this horrible maladministration [in the executive] pronto. OK? OK???"
It's not going to work any more. No one trusts the maladministration.