Balkinization: Constitutional Hardball in the Bush Administration

Comments:

This last point has weighed on me the most in considering which Democratic candidate to support. Which one is least likely to hang onto some of these theories? Are any of them capable of a full-throated repudiation? I'm assuming, of course, that a Democrat will replace Bush and that it'll be a big improvement, but you're spot on to anticipate that some of these arguments have become normalized and will become part of the normal science of U.S. constitutionalism. This is actually the main reason I worry about Clinton as the nominee (not the electability issue so much). Any other thoughts here (preserving my 2 assumptions)? I can only see Obama leading a repudiation in a concerted way.

# posted by

Anni : 2:45 PM

Professor Balkin: This set of acts of constitutional hardball is closest to Mark's original model of why government actors engage in constitutional hardball-- they want to create a new constitutional regime that lasts for many years. Had the Iraq war not failed miserably due to the incompetence of President Bush and members of his Administration, he might well have succeeded.

The neo-cons of PNAC have indeed succeeded in creating "a new constitutional regime". Even impeachment of Bush and Cheney together would not undo the damage done by H.R. 3162, the so-called "patrtiot" act, nor the MCA, nor the Warner act, &c, &c, ad naseum. I don't know that anyone has even attempted a comprehensive survey of how many acts would need repealiing just to get us back to the sorry state we were in on September 10, 2001.

Of course we could start by repealing the AUMF of 2001.

Just a thought...

# posted by

Robert Link : 2:50 PM

anni: I'm assuming, of course, that a Democrat will replace Bush...

All my liberal/progressive friends are making the same assumption. But all it would take is a fire-cracker at the Washington Monument to swing things back to the GOP. I wouldn't bet on us even holding the full Congress. Maybe the House. If the Dems hold the House and the Senate I'll be relieved. But I don't harbor any true hope of seeing a Democrat in the White House.

Won't stop me from campaigning my heart out...

# posted by

Robert Link : 2:54 PM

Excellent post, JB. The trolls favorite rejoinder to this is that if Congress felt what the President did was unConsitutional, they could always impeach him. Hardball indeed when the apologists are now saying what is happening is right, or consistent, but only "make me".

# posted by

Fraud Guy : 3:25 PM

"Five members of the U.S. Supreme Court, who did not know what the outcome of the Florida recounts would be, stopped those recounts and twisted the law to ensure a Bush victory."

Or, in the right-wing version, stepped in to stop the state Supreme court from twisting Florida law to engineer a Gore victory. Considering that the media consortium's analysis of the ballots shows that about the only way Gore would have won was by the sort of systematically biased counting the Florida court pointedly refused to prohibit, I find that version of events a bit more persuasive.

# posted by

Brett : 3:28 PM

Considering that the media consortium's analysis of the ballots shows that about the only way Gore would have won was by the sort of systematically biased counting the Florida court pointedly refused to prohibit, I find that version of events a bit more persuasive.

Huh? The recount showed multiple ways Gore could have won. See also this link.

# posted by

Mark Field : 3:54 PM

I would contend that Mr. Bush returned the constitutional balance of power to the status quo ante for most of the 200 years prior to overreaches of the radical Congress elected in 1974.

The "first acts of constitutional hardball" have nothing to do with Presidential constitutional authority (Mr. Bush was not President yet) and are in fact sour grapes by the losing political party. After dozens of recounts, Al Gore STILL LOST Florida. Get over it.

The "second acts of constitutional hardball" were in fact a return of Presidential constitutional foreign policy powers to the status quo ante 1974. Indeed, the Administration justifies most of its actions by citing to Executive practice and Court cases prior to Vietnam. There is very little that is unique about Mr. Bush's actions in this area.

The "third acts of constitutional hardball" would be more properly identified as the lawless excesses of the new Dem Congress demanding to rifle through non criminal Executive deliberations for which they have no right and would howl in opposition if Mr. Bush attempted the same thing against Congressional deliberations.

As to the longevity of the Bush retaking of Presidential constitutional foreign policy powers from the Radical 70s Congress, time will tell. So far, the President has only lost one round concerning presidential powers before the Courts when the Supremes held that Congress had set the rules for the trials of unlawful enemy combatants through the UCMJ. Even in this case, the Courts recognized that the President does have to power to act in this area absent a congressional exercise of its enumerated power to set rules for captures. (The habeas corpus tug of war between the democratic branches (Congress and the President) and the courts over habeas corpus really does not involve Presidential foreign policy powers.) The President has won nearly every other case involving his powers.

Presuming that the President continues to win before the courts, I doubt a potential future Dem President Clinton would concede her newly re-won presidential powers over foreign policy back to Congress. Moreover, I am willing to wager that all the caterwauling on this issue from the left and Congress if it remains Dem will significantly diminish if not disappear if the President exercising these traditional foreign policy powers ends up being a Dem as opposed to Mr. Bush.

# posted by

Bart DePalma : 5:17 PM

As a result, if Congress and the public do not decisively reject Bush's policies and practices, some particularly unsavory features of his Presidency will survive in future Administrations. If that happens, Bush's previous acts of constitutional hardball will have paid off after all. He may not have created a new and lasting constitutional regime, but he will have introduced long-lasting weaknesses and elements of decay into our constitutional system.

Yes. Therefore: impeach.

# posted by

Lisamosc : 5:37 PM

what Congress really needs to do is start amending the Constitution. fence in the executive in the next couple of years, which, after the inevitable revelation of the administration's rampant lawbreaking come out, will have the wind at its sails. while many are concerned with punishing the present occupant, we should be looking to the future health of the republic, as prof Balkin does here. it doesn't require presidential approval, and if a dem is in the white house, maybe it'll be easier to convince the repub's to get into the fold. let's define executive privilege, let's limit the scope of the commander in chief clause to its historically understood role, etc. etc.

And the the other silly arguments (wiretapping, etc) can be fixed in another way. every democratic candidate should be required to promise that they will continue the illegal executive activities if he or she won, but won't throw up the procedural roadblocks the bushies have, so the actions can be struck down. for instance, president obama could reveal that helen thomas or seymore hersh has been illegally wiretapped, so standing goes out the window, then not claim state secrets prevents adjudication, and let the Supremes rule on the merits, and make some good, dictator limiting law. same with habeas - no last minute transfers to civilian courts on crap charges, no delay on status review, etc. test the theories, and get them struck down. let's make some positive law that prevents apologists and revisionists from making outrageously unamerican claims about constitutional principles.

# posted by

nerpzillicus : 6:19 PM

This is where I don't get the thinking behind the current administration's effort to amp up executive power.

I would think the specter of an equally amped up Democratic administration would make them wary of siting too much power in the White House.

(unless they plan on never having any more elections... hey better check those signing statements carefully....)

# posted by

MMF : 6:35 PM

I would contend that Mr. Bush returned the constitutional balance of power to the status quo ante for most of the 200 years prior to overreaches of the radical Congress elected in 1974.

The Congress's power vis-a-vis the White House today is similar to what it was in the days of Webster, Clay and Calhoun? In the days of Reed and Cannon?

# posted by

Davis X. Machina : 7:57 PM

Bart emphasizes the increase in legal restraints on the President's power, but ignores the extent to which executive power has grown as a practical matter.

For instance, he has pointed out several times that Presidents have been waging wars without Congressional authorization from Jefferson's war on the Barbary Pirates to our interventions in Central America in the 1920's. This is true, but it ignores that fact that before WWII our peace time army was so small as to limit the size of those interventions. If the President wanted a major war, he had to go to Congress for a declaration of war or he wouldn't get the army to fight it. After WWII, we had a permanent large army, and Presidents found they could fight major wars at will. Before the 1970's we did not have Congressional oversight of intelligence agencies, but then, before WWII we didn't have intelligence agencies at all.

Some changes have simply been ones in technology. It was impossible to regulate wiretapping before the technology existed. And the ability to vacuum up vast quantities of data has grown exponentially.

Between WWII and the 1970's, Presidents had vast amounts of power with precious little in the way of restraints or oversight and, it should not be surprising, regularly abused it. The 1974 Congress was not so radical that it was willing to disband the army, the CIA, the NSA etc etc and give up our role as a superpower. Instead, they set out to curb such abuses by putting constraints on Presidential power instead of by destroying that power altogether.

Bart wants Congress to give the President vast amounts of power (in the form of armies, intelligence agencies, etc), and not require any accountability as to how it is used.

# posted by

Essayist-Laywer : 8:54 PM

Davis X. Machina said...

BD: I would contend that Mr. Bush returned the constitutional balance of power to the status quo ante for most of the 200 years prior to overreaches of the radical Congress elected in 1974.

The Congress's power vis-a-vis the White House today is similar to what it was in the days of Webster, Clay and Calhoun? In the days of Reed and Cannon?

When it comes to foreign policy and war fighting, yes.

Prior to Vietnam, there were no laws attempting to limit the President's powers to gather foreign intelligence, compel the President to withdraw and surrender in a war or extend habeas corpus or civilian criminal constitutional rights to foreign or domestic wartime prisoners. Indeed, I am unaware of any time prior to Vietnam that such overreaching proposals were actually debated in Congress or any major political party.

You cannot fight and win wars with a committee of over 400 CiCs. The Constitution provides for one.

# posted by

Bart DePalma : 9:06 PM

Enlightened Layperson said...

Bart emphasizes the increase in legal restraints on the President's power, but ignores the extent to which executive power has grown as a practical matter.

If the President wanted a major war, he had to go to Congress for a declaration of war or he wouldn't get the army to fight it. After WWII, we had a permanent large army, and Presidents found they could fight major wars at will.

He still does. Bush asked for and received both funding and AUMFs before initiating the wars in Afghanistan and Iraq.

Before the 1970's we did not have Congressional oversight of intelligence agencies, but then, before WWII we didn't have intelligence agencies at all.

We had military intelligence. Civilian agencies are relatively new, but Lincoln had the Pinkertons.

Some changes have simply been ones in technology. It was impossible to regulate wiretapping before the technology existed. And the ability to vacuum up vast quantities of data has grown exponentially.

We have been wiretapping since the invention of the telegraph.

The 1974 Congress was not so radical that it was willing to disband the army, the CIA, the NSA etc etc and give up our role as a superpower.

EL, how old are you? This Congress gutted the military and the intelligence agencies during the 70s.

Have you heard about the "hollow army." It was far worse than is generally known. Funding for equipment and training collapsed after Vietnam. The veteran cadre was allowed to leave, exceedingly bitter after being betrayed in Vietnam and treated like criminals at home. The equipment we lost in Vietnam and which Nixon sent to Israel to replace their losses in the 1973 Yom Kippur War was not replaced. Many of our units were basically combat ineffective. If the Warsaw Pact attacked in the last half of the 70s, our military would have collapsed and either NATO would have fallen or become an nuclear battleground.

It was because of their treatment during this period followed by the recovery under Reagan that the military became estranged from the Dems for the past generation.

# posted by

Bart DePalma : 9:21 PM

# posted by

Brett : 9:22 PM

JB

One of your best posts. As Robert Link observes, it would only take a firecracker going off at the Washington Monument to reinstate even harder hardball. I can imagine Sidekick or one of his lieutenants doing just that. Hate and fear have been the motivation of all the hardball exceptions, with Hilary, Biden, Dowd, et alia, all in tow. Hell, Sidekick runs the show anyway, and his criminals are "commuted" by the lame head titular anonymity that is his puppet and mouthpiece.

When K-Street Drives the nation, pays its officials, finances the "take," uses HilaryCare to scare us into avoidance of "socialized medicine," pays the politicos to make Animal Farms outrages, while sunning in Dubai, very few honest public servants remain.

Russ Feingold, certainly. Barack Obama, possibly. Otherwise, oink, oink, in the trough that perpetuates the myth that we even have a Constitution, with lawyers' casuistry and indeterminacy, or that our Vice President is any other than the King of Hearts, playing Alan Bates in the land of insanity.

The asylum of the insane creates Museums to Floods, obeys AIPAC's dictates, obscures fact as fiction, and then, we wonder why Palestinian resentment rings truer than all the hardball crimes of this Administration, its architects use us as dupes, and the puppet is dangling on Halliburton's strings, while the puppeteer's daughter is artificially inseminated, praising Jesus Camps, the Israelis, and "traditional family values."

There is a vernacular term for this process, it simulates coitus, but is used only by D.C. Madams and their Republican Clients, when the Democrats are looking for cartilage, in order to find some spine. But SAFE SEX it is not.

# posted by

Anonymous : 9:25 PM

It is interesting to contemplate how some of these controversies might be handled by the next administration. It is even possible that some cases might still be in the courts after Jan. 20, 2009.

Would a Hillary Clinton administration take just as aggressive an approach to executive privilege? Quite possibly, I think, given the historic opinions of prior administrations (including that of Bill Clinton).

We actually know very little about where various candidates stand on matters of executive power. The positions of some (Giuliani, for example) we can assume from their general rhetoric to be as aggressive as those of George W. Bush. But no one has really been questioned on these matters.

Which candidate of either party will be willing to forswear Bush's radical assertions of such powers as the inherent authority to disregard FISA, or commit to investigate and prosecute violations of their predecessor?

# posted by

JaO : 9:46 PM

Which candidate of either party will be willing to forswear Bush's radical assertions of such powers as the inherent authority to disregard FISA, or commit to investigate and prosecute violations of their predecessor?

This really is the key point, IMO. Absent such a change in direction, there's going to be a fundamental change in our system of government. And not for the better.

Yes, Mark, there were several ways Gore could have won, all but one of which were indisputably beyond the legal pale.

I can only assume you didn't read the links I provided.

# posted by

Mark Field : 9:53 PM

You cannot fight and win wars with a committee of over 400 CiCs. The Constitution provides for one.

How's that workin' out for ya, Bart?

# posted by

unSane : 10:51 PM

How's that workin' out for ya, Bart?

# posted by John Brownlow : 10:51 PM

The sad thing is that he thinks it's going really well. He even thinks that our troops are safer in Iraq than they would be in NYC. I am not making this us.

# posted by

Bartbuster : 10:59 PM

Latest on Siegelman prosecution, with incredible amount of new detail, illumination of the scheme, more direct ties to Rove, and a named individual within the DOJ who was central to this and other politically partisan prosecutions (and semi-prosecutions, as with Abramoff).

This one is well beyond the indefensibly all-encompassing Executive Privilege assertion Bushit is making, and has the added virture of a Republican political activist and lawyer who puts rule of law and ethics above politics --

http://harpers.org/subjects/NoComment

That Republican lawyer, Simpson, after announding she was filing her sworn affidavit, was driven off the road and her car totalled by an off-duty law-enforcement officer, and her house was set on fire.

It also appears her law office was broken into -- nothing of value taken, but her files "explored".

# posted by

JNagarya : 11:43 PM

Or, in the right-wing version, stepped in to stop the state Supreme court from twisting Florida law to engineer a Gore victory. Considering that the media consortium's analysis of the ballots shows that about the only way Gore would have won was by the sort of systematically biased counting the Florida court pointedly refused to prohibit, I find that version of events a bit more persuasive.

# posted by Brett : 3:28 PM

It showed nothing of the kind.

Read the Constitution as to the sole branch of gov't given authority to resolve election disputes such as that of 2000. Clue: it isn't the unelected SC.

# posted by

JNagarya : 11:46 PM

Yes, Mark, there were several ways Gore could have won, all but one of which were indisputably beyond the legal pale.

That leaves only the "Palm Beach" counting standard, which it should be noted was not the procedure Palm Beach started out using, but only what they resorted to as it became evident that their initial counting rules weren't going to put Gore over the top.

That one would have got Gore a win by, what, 48 votes? If elections officials state wide had decided to adopt a standard designed by Democrats to optimize the yield of Gore votes... Realistically, without that implausible cooperation of Republicans in electing a Democrat, Democratic counties would have had to have used wildly biased counting to elect Gore.

So, if you think Gore might have won if the Supreme court hadn't cut the recounts short, you're assuming some radically biased Democratic counting during that recount. A plausible assumption, regrettably.

# posted by Brett : 9:22 PM

Bullshit. The differences in counting in different counties relfected the different voting technologies used from county to county.

You're telling the pro-Bushit lies, and leaving out several which are central:

1. For the first tim in history, while the counting was continuing, the unelected SC stepped in and stopped the vote couunting.

2. The unelected SC has no legitimate role in democratic elections; that role is given by the Constitution solely to Congress.

3. For the SC to "resolve" the case required it usurp that exclusive Congressional authority. As a matter of law, that means the results of that unconstitutionality are all null-and-void.

To follow up on JB's three areas of "hardball" and the correction of it: it requires not only repealing every act of law, etc., signed by Bushit, but also reversing every one of his other actions, including that of judicial appointments. As the facts around the Rove-driven prosecution of Siegelman, you'll begin to understand the role of Bushit's judicial appointees in the effort to advance Rove's "Permanent Republican Majority".

The latter is, unquestionably, unconstitutional. Telling the lies against Gore in effort to avoid the actual facts does not and cannot transform the result imposed by the unelected SC into being constitutional.

Support Bushit, or support your country and the rule of law. You cannot honestly do both.

# posted by

JNagarya : 11:58 PM

I think a number of commentators here are right, that the President is inherently an advocate of executive authority, regardless of party. The exception would be a weak and wimpy leader like Jimmy Carter, which would pose problems of its own.

The solution was supposed to be that Congress would not let him get away with it, but the Levinsons appear to be right, that party loyalty trumps institutional loyalty in Congress, except for its most personal privileges. Normally I would say the best remedy is divided government, except that one of the parties these days is the Republicans.

# posted by

Essayist-Laywer : 12:14 AM

JN, I actually agree that it was improper for the Judiciary to intervene. Leaving the original constitutional wrong in this case as the Florida Supreme court's decision to start re-writing Florida election law after the voting was over.

The appropriate, constitutional resolution of the problem was for the Florida legislature to declare that the original slate of electors, chosen according to the procedure IT had specified, was the correct one, and to sanction the state supreme court for it's usurpation of an exclusively legislative power. Something they were in fact in the process of doing when the federal supreme court reined in the state court.

I doubt you would have been any happier about the 2000 election if it had featured the Republican Florida legislature appointing the Bush electors, and the Republican House voting to ignore the batch the Florida courts chose. Even though that would have been the constitutionally correct thing to do.

# posted by

Brett : 6:53 AM

The argument is that if executive power is not challenged by the Congress, such executive power will become institutionalized. However, the past decade has taught us that Congress is, as a body, capricious. The same institution that impeached a president for a sex lie during a civil trial now refuses to impeach a president for such high crimes as openly operating concentration camps and engaging in overt acts of torture, imprisoning US citizens without trial and refusing to present prisoners before a magistrate as required by Habeas Corpus (and no, Art. I, Sect. 9 can't be repealed by the MCA), ordering private citizens to refuse to testify before lawfully empanelled bodies and to ignore lawfully issued subpoenas, in direct violation of federal law, etc. etc.

However, the capriciousness of Congress is also the well-spring of much of its strength. Unlike SCOTUS, which, in theory (and confirmation testimony of nominated justices), ought to respect precedent, the Congress is under no such obligation. What today's Congress does has no bearing on the Congress of tomorrow, which I suspect, will be less willing to let the executive play dictator. Many people are expecting '08 to be a massive Democratic victory, and I do not disagree. However, the destruction/implosion of the Republican party will force it to become an opposition party; the current base of an ever-shrinking/aging "silent majority" and fundamentalist evangelicals will not be sufficient to yield favorable returns into the future. The opposition party will be forced to reinvent itself and oppose a powerful executive; if that executive is HRC, I think the opposition will be successful in '10 and '12, if only because she is so easy to demonize via the Republican attack machine, which is not going to die out simply because Republicans will be excluded from government for a few post-Bush years.

Finally, the argument has been made that the post-Watergate executive is somehow weaker than previous presidents. Considering the fact that the current president not only commands a massive standing army, a fleet of aircraft carriers, the worlds most powerful air force, spy satellites spanning virtually every inch of the globe, a military budget approaching half a trillion dollars, and can, by pressing a few buttons, eliminate all of humanity the world over in a single instant, such an argument is patently absurd. The last time I checked, even a powerful executive like Lincoln couldn’t read a newspaper in Tokyo from space or obliterate entire continents on a whim. To argue that the present executive is weak requires either an utter ignorance of US History, or a complete suspension of reality. I suspect the latter; the modern Republican party has practically turned it into an art form.

# posted by

Keith Edward Carr : 7:44 AM

Yesterday I saw this post before it had any comments. I wrote up some garbage, and decided to not post it.

Then last night I watched Bill Moyers and was reminded of what I wanted to say.

The problem is really the citizen accepting the role of subject, from active to passive. We have accepted the role of being entertained, being a spectator, maybe of being nice, maybe even being willfully ignorant.

There needs to be a new force, a movement from spectator to citizen, from entertained to engaged, from accepting to demanding. But what to demand?

The citizen must demand something more than personal success, the model is our Constitution. We must demand citizenship of our neighbors, we must demand leadership from our leaders, we must demand our government follow the spirit of our Constitution, not as a set of rules to press for personal or group advantage, but as a check against it. We must develop a distaste for, a violent disgust for those who wish to elevate any interest above that of our fellow citizens.

We see now the result of not following this course: the circle of 'us' becomes smaller by the day, more of 'us' become 'them'. It is more clear than ever that as Bush becomes challenged, he will draw the circle closer, because the arguments have already been accepted. Efforts to only redraw the circle around another 'us' only reinforces the process, what is needed is a total repudiation of those few, it really is a few, who wish to divide an conquer. We need a new citizenship which demands process over result, one which celebrates and respects diversity. The Karl Roves of the world would then be seen as the disease they are.

# posted by

rmadilo : 5:16 PM

"JN, I actually agree that it was improper for the Judiciary to intervene. Leaving the original constitutional wrong in this case as the Florida Supreme court's decision to start re-writing Florida election law after the voting was over."

You miss both the point and the law on the issue. (And that which is unconstitutional is not merely "improper".)

During the battle in Florida, I was online reading the FL elections laws, including all applicable case law, which extended back, consistently, over 100 years, night after night, with the TV on and hearing what the several parties were asserting.

From the elections law and legal history it is obvious that the courts are loathe to get involved, in any way, in elections, so there can be no way to construe the outcome as determined by the courts. Thus the traditional response to Bushit's sort of case has been, "This is a nonjusticiable political question -- take it to the legislature" -- which is exactly as the Cosntitution stipulates.

Where courts have got involved, and reluctantly, is in disputes over what votes are legal, and what not -- the "hanging chads" distortion being an instance. Over vote re/counts based upon which physical votes are legal, and which not. And when courts get involved in such cases, they bend over backward to allow in as many votes as possible, preferring to allow a little vote-fraud in than to exclude likely legal votes. You'll note that that is exactly opposite the actions of the SC leading up to its lawless Bush v. Gore.

The applicable Federal case law was from a prior Alabama election, and simply looked at the physical contested votes, and applied the standards required by the state law; that law required some three specifics, one of those being the voters signature (these were absentee votes). The dispute was over a number of votes which didn't fulfill the three requirements of the law -- signature missing, whatever. The court ruled simply and clearly: votes that did not include all information mandated by the state law were discarded.

I was surprised at how "liberal" Florida's case law history on the point; but it was exactly the same. The on point case decisions were of the same kind: staying clear of who won what, and sticking solely to the requirements of the law, as concerned re/counts, and or as applied to the physical votes.

The 2000 FL statute had been enacted by the Republican-controlled legislature, and signed into law by Jeb Bush. It had been amended essentially to overcome a fraudulent mayoral election in Miami, and increased the stipulated pieces of information required in order that a vote be legal. It also stipulated -- and this should surprise no one -- that any candidate could select as few or as many counties, up to the entire state, for recounts. (Obviously, in terms of efficiency, it wouldn't make much practical sense to demand recounts in counties where there were no controversies alleged or invented by any party.)

So, yes: while James Baker was asserting on air the exact opposite of the actual terms of FL's elections law, and smearing Gore as "cheating" by "cherry picking" counties for recounts, the law was -- quite reasonably -- that every candidate had exactly that statutory right.

The case law on point was also liberal in that regard: ensuring all votes are counted has always been a superior consideration to that of whether a small percentage are illegal.

So all the FL courts did (Bush was the first to run to court, both state and Federal; three times the lower Federal court dismissed his case, without prejudice, and instructing him to come back after the re/counts were completed, if he still had a dispute) was apply the existing case law and statute; they were "rewriting" nothing.

"The appropriate, constitutional resolution of the problem was for the Florida legislature to declare that the original slate of electors, chosen according to the procedure IT had specified, was the correct one, and to sanction the state supreme court for it's usurpation of an exclusively legislative power."

The constitutional and legal thing to do was to allow the re/counts to be completed -- which was the last thing Bushit wanted, and that which Scalia ensured by intervening, unconstitutionally, in the election. Until the media consortium performed its examination of the votes, and did its re/count, there had been no completion of the vote-counting in FL. The usurpation of legislative authority was not by the FL courts -- read the FL elections law and applicable case decisions -- but, as I pointed out, by the US SC. (The FL court would not have the constitutional authority to usurp legislative resolution either; but that isn't what happened: the FL court applied the relevant law and acted in conformity with over a hundred years of FL law: it ordered that the re/counts be completed (while the re/counts were going on, and before there had been a first "conclusion" to that, Bushit appealed three times to the Federal court -- see above -- in effort to stop the re/counts.) The SC did exactly opposite the FL court: it ordered the never-completed vote-counting stopped.

"Something they were in fact in the process of doing when the federal supreme court reined in the state court."

The FL court ordered that the re/counts be completed -- that is the most intrusive the courts have ever been traditionally; and that was wholly consistent with both the FL elections law and case law history. The SC ordered the re/counts stopped.

Baker's ddeliberate hysteria notwithstanding, there was no "crisis": a president was in office and tending to business. Nor was there ever a "drop-dead date" -- and could not be; Nixon contested the election in 16 states, a contesting which continued until 1/20/61; and several western states, including CA, submitted theiir slates after the alleged "drop-dead date," and Congress accepted them without question or argument.

"I doubt you would have been any happier about the 2000 election if it had featured the Republican Florida legislature appointing the Bush electors, and the Republican House voting to ignore the batch the Florida courts chose. Even though that would have been the constitutionally correct thing to do."

Let's deal with the facts, by including the actual FL law, and case law history, instead of basing the case on Baker's falsifications thereof. There is the issue of ends and means: the US Constitution required the resolution be done by Congress. The outcome would, of course, have been the same, as Congress was controlled by the Republicans. Bushit had to know that. And that outcome would have been Constitutional. However, Bushit also knew he'd lost the election, therefore the completion of the re/counts had to be prevented. And the SC unconstitutionally usurped Congress' exclusive authority and did exactly that.

The outcome was the same -- but ends and means were jettisoned, and the Constitution subverted.

The bottom line question for you is this: in an election, any election, do you want all legal votes counted -- even if that means letting in a few that are questionable -- or do you want the counting of votes to be limited to only those which will result in the outcome you want? You argue for the latter; and that is what you got from the unconstitutional usurpation by the SC.

# posted by Brett : 6:53 AM

Now go read the links you were provided as to the actual results of the media consortium's review.

# posted by

JNagarya : 5:54 PM

Keith Edward Carr said...

Finally, the argument has been made that the post-Watergate executive is somehow weaker than previous presidents. Considering the fact that the current president not only commands a massive standing army, a fleet of aircraft carriers, the worlds most powerful air force, spy satellites spanning virtually every inch of the globe, a military budget approaching half a trillion dollars, and can, by pressing a few buttons, eliminate all of humanity the world over in a single instant, such an argument is patently absurd. The last time I checked, even a powerful executive like Lincoln couldn’t read a newspaper in Tokyo from space or obliterate entire continents on a whim. To argue that the present executive is weak requires either an utter ignorance of US History, or a complete suspension of reality.

We are discussing the relative constitutional power of the Executive and Congress to control the military and foreign policy, not the relative power of that military.

# posted by

Bart DePalma : 7:52 PM

The last time I checked, even a powerful executive like Lincoln couldn’t read a newspaper in Tokyo from space or obliterate entire continents on a whim.

You make this sound way too easy. At the very least, he has to provide Congress a written report within 48 hours explaining why those continents needed to be obliterated.

# posted by

PMS_CC : 8:56 PM

JN, I read the results of the consortium's work at the time, and followed your links this time.

Under conditions most favorable to Gore, and mostly involving clearly illegal counting procedures, you could have transformed Bush's narrow victory into a very, very narrow Gore victory, assuming, (As I pointed out.) that Republican counties agreed to count ballots according to procedures which had been tuned after the fact to optimize the yield of Gore votes.

Do I really have to explain how implausible that was?

Assuming, more plausibly, that Republican counties simply used the counting procedures Palm Beach originally thought were reasonable, nothing short of massive fraud on the part of counters in Democratic counties would have given Gore a victory.

I really hope your outrage isn't over their being denied the opportunity to do that.

# posted by

Brett : 9:30 PM

"JN, I read the results of the consortium's work at the time, and followed your links this time."

They were not my links.

"Under conditions most favorable to Gore, and mostly involving clearly illegal counting procedures, you could have transformed Bush's narrow victory into a very, very narrow Gore victory, assuming, (As I pointed out.) that Republican counties agreed to count ballots according to procedures which had been tuned after the fact to optimize the yield of Gore votes."

You are simply restaing the lies perpetrated by those representing your preferred candidate.

The FL laws stipulated how to deal with various outcomes concering ballots. As example, if a ballot had three slots -- on Bush, on Gore, and one blank for write-in, a ballot with the slot for Gore checked, and his name written in the blank slot, the optical reader would reject that ballot. But, as the law stipulated -- and it stands to reason -- those ballots are to be reviewed, and a determination made as to whether the voter's intent could be determined. In the instance given, there is no question about the voter's intent; however, the Republicans wanted those discarded when they went for Gore.

In short: your notion of "clearly-illegal" is false, as the law already stiipulated, before the election, how such "defective" ballots are to be dealt with. There was no "after the fact" "tuning" in effort to favor Gore.

At the same time, while Baker was protesting Gor'es "cherry picking" of only some counties for recounts, Republican-dominated counties were conducting recounts.

"Do I really have to explain how implausible that was?"

You have yet to read FL's elections law. All the assertions you make in behalf of the outcome about "tunings" and the like did not occur. All your assertions were anticipated, in the statute, based upon over 100 years of experience, only one of those bieng the obvious sanity of granting any candidate to choose however many or few counties for recounts s/he wanted: noe of that was controversial, as a matter of long-stanidng law. It was -- and is -- only controversial to the biased, and to those ignornat of the law.

"Assuming, more plausibly, that Republican counties simply used the counting procedures Palm Beach originally thought were reasonable, nothing short of massive fraud on the part of counters in Democratic counties would have given Gore a victory."

You don't get it, do you? Different counties had differnt kinds of machines. The different kinds of machines rresulted in different kinds of errors. And even differnt kinds of ballots. Thus the counting procedures were conformed to the different machines and errors and ballots. If you won't inform yourself of those basic -- and non-controversial ffacts -- you will continue to insist the counting procedures must be the same in every county -- even if they didn't apply to the specific technology here or there.

Bush v. Gore is a lawless fraud based upon activist inventions intended to reaach a conclusion already decided. The details in it had little and nothing to do with the facts on the ground.

"I really hope your outrage isn't over their being denied the opportunity to do that."

My outrage, ass, is the subversion of the Constitution by a court who wanted Bushit, and wasn't going to let something so irrelevant as accurate vote counting -- democracy -- get in their way. I hope you're happy with the consequences. You are certainly happy with the lies about the FL elections law, and the FL courts' adherance thereto, and the facts on the ground in preference to digging down and getting those.

My outrage is with those who pooh-pooh Constitutional subversion so long as the result is that they want; and who ever after avoid informing themselves by substituting therefor the falsifications they swallowed in the first instance.

# posted by Brett : 9:30 PM

# posted by

JNagarya : 1:33 AM

Brett:

The bottom line -- you use the word "wildly" in one of your posts on this issue -- is that you don't know thing one about how the mechanics of elections work, thus haven't a clue as to why "differnt counting standards" can be appropriate. Noe of the counting methods used by the media consortium were illegal: they conformed both to the FL elections law, and the facts on the ground. There is no one kind of vote-counting machine throughout FL; there are several kinds, each of which having differnt forms of ballots, and each of which different ballots requiring different means of counting. That is: not all machines in FL used punch cards, therefore had to deal with the variations in results re. "chads". Some counties had optical scan machines -- different ballots; no "chads" -- with different results as concerns so-called "defective" ballots. I gave an example above: both checking Gore's name, and writing in his name, would be treated by the machine as "defective"; but looking at it with one's eyes finds no doubt as to whom the voter voted for.

Therefore, the different counting methods were determined by two factors: the FL elections law -- which actually detailed the various observed problems with the various kinds of ballots, and stipulated how to deal with each -- and the particular kind of machine in a given county.

Because of variations among machines, a "uniform" method of counting was simply not possible -- nor argument for such honest.

# posted by

JNagarya : 1:45 AM

Don't know why I bothered, as JN demonstrates, that the 'SCOTUS' stole the election for Bush in 2000 is less a conclusion than an article of faith.

JN, do you really think the differences in counting standards I was complaining about were the differences between how punchcard and optical scan ballots were counted, rather than, say, physically identical ballots being counted differently under different circumstances? Even within the same count, in the same county? What kind of moron do you think I am?

Drop it, we're just wasting bandwidth. Keep your faith, it comforts you.

# posted by

Brett : 7:04 AM

Bart and Brett and the rest of their ilk charged with some dubious and vague thought crimes against the state, thrown in a hole, tortured and forgotten?

The temptation of fascism and totalitarianism is all too seductive.

# posted by

Anonymous : 7:30 AM

Brett: JN, do you really think the differences in counting standards I was complaining about were the differences between how punchcard and optical scan ballots were counted, rather than, say, physically identical ballots being counted differently under different circumstances? Even within the same count, in the same county?

What kind of moron would allow such a ridiculous way of conducting elections? Tell me, who was the Governor and Secretary of State again?

Brett: What kind of moron do you think I am?

See my first question.

QED.

# posted by

Anonymous : 7:37 AM

I wonder if Bart or Brett booked this cruise. Maybe they shared a stateroom...

Ship of Fools: Setting Sail With ‘The National Review’
by Johann Hari

The Iraq war has been an amazing success, global warming is just a myth - and as for Guantanamo Bay, it’s practically a holiday camp… The annual cruise organized by the ‘National Review’, mouthpiece of right-wing America, is a parallel universe populated by straight-talking, gun-toting, God-fearing Republicans.

I am standing waist-deep in the Pacific Ocean, both chilling and burning, indulging in the polite chit-chat beloved by vacationing Americans. A sweet elderly lady from Los Angeles is sitting on the rocks nearby, telling me dreamily about her son. “Is he your only child?” I ask. “Yes,” she says. “Do you have a child back in England?” she asks. No, I say. Her face darkens. “You’d better start,” she says. “The Muslims are breeding. Soon, they’ll have the whole of Europe.”

I am getting used to these moments - when gentle holiday geniality bleeds into… what? I lie on the beach with Hillary-Ann, a chatty, scatty 35-year-old Californian designer. As she explains the perils of Republican dating, my mind drifts, watching the gentle tide. When I hear her say, ” Of course, we need to execute some of these people,” I wake up. Who do we need to execute? She runs her fingers through the sand lazily. “A few of these prominent liberals who are trying to demoralize the country,” she says. “Just take a couple of these anti-war people off to the gas chamber for treason to show, if you try to bring down America at a time of war, that’s what you’ll get.” She squints at the sun and smiles. ” Then things’ll change.”

I am traveling on a bright white cruise ship with two restaurants, five bars, a casino - and 500 readers of the National Review. Here, the Iraq war has been “an amazing success”. Global warming is not happening. The solitary black person claims, “If the Ku Klux Klan supports equal rights, then God bless them.” And I have nowhere to run.

From time to time, National Review - the bible of American conservatism - organizes a cruise for its readers. I paid $1,200 to join them. The rules I imposed on myself were simple: If any of the conservative cruisers asked who I was, I answered honestly, telling them I was a journalist. Mostly, I just tried to blend in - and find out what American conservatives say when they think the rest of us aren’t listening...

# posted by

Anonymous : 8:00 AM

Anon, the "moron" in this case was the Florida supreme court. The Governor and Secretary of State in Florida don't have remotely as much control over local election administration as you seem to think, and in 2000, the courts didn't even let them exercise as much control as the law gave them.

# posted by

Brett : 9:28 AM

Mini-Bart... Anon, the "moron" in this case was the Florida supreme court. The Governor and Secretary of State in Florida don't have remotely as much control over local election administration as you seem to think, and in 2000, the courts didn't even let them exercise as much control as the law gave them.

And you wonder why the rest of us are no longer listening? Moron.

Johann Hari... The Iraq war has been an amazing success, global warming is just a myth - and as for Guantanamo Bay, it’s practically a holiday camp... Mostly, I just tried to blend in - and find out what American conservatives say when they think the rest of us aren’t listening...

# posted by

Anonymous : 12:55 PM

I dub thee Bart's mini-me, Brett.

You two, and others like you (pro-Buzis) both come to mind when I ponder the incorrectly named Operation Canned Goods (Operation Himmler):

"Against all the evidence, pro-nazi Germans believed they were fighting a justified defensive war until the last days of the Second World War." Godwin can suck eggs.

# posted by

Anonymous : 1:07 PM

"And you wonder why the rest of us are no longer listening? Moron."

Ok, then, explain to me the legal basis for the Florida Governor to order local elections officials to use a particular counting standard during a recount ordered by the state supreme court, or even one conducted under ordinary circumstances.

You really don't understand how elections are administered in this country, do you?

# posted by

Brett : 5:24 PM

Thank you Professor!

The effects of this lawless behavior can only be curtailed through formal impeachment.

Absent redress, this new lawless executive branch will be sustained after January 2009, regardless of the election's outcome. Only impeachment can redress this disease.

# posted by

Anonymous : 5:41 PM

We might divide the Bush Adminstration's practices of constitutional hardball into three categories. The first are acts used to gain power. The second are acts used to attempt to transform the government into a new constitutional order. The third are acts designed to head off accountability following the failure of the attempt. The second set fit most closely Mark's original model of constitutional hardball. But the first and third set are equally important for understanding the phenomenon.

This third round of constitutional hardball by the Bush Administration is occurring because Bush's previous acts of constitutional hardball did not take. He was not able to create a new constitutional regime that would maintain his party in a dominant position for the foreseeable future. He was not able to bootstrap actions of dubious legality into widespread acceptance and thus enjoy the benefits of winner's history and winner's constitutions. Instead, things are now crumbling about him and there is a very significant chance that his party will suffer for his miscalculations during the next few election cycles.

Your characterization of Bush’s situation: “things are now crumbling about him,” and his “acts [are] designed to head off accountability following the failure of the attempt,” reminds me of this:

[F]rom William Shirer's The Rise and Fall of the Third Reich: a November 1940 conversation in Berlin between Soviet Foreign Commissar Vyacheslav Molotov and Nazi Foreign Minister Wilhelm Joachim von Ribbentrop. During a banquet, a British bombing raid forced the ministers into an underground shelter. Ribbentrop tried several times to convince the Soviet commissar that Britain was finished as a military power, to which Molotov icily replied: "If that is so, why are we in this shelter, and whose are these bombs which fall?"

Source: Shakespeare’s Sister

He does not appear to have the ground crumbling beneath him.

Bush continues invoke preposterous theories, blatantly dissemble, insult the Committees, posture, the whole performance, might appear to you as a sort death rattle, but there are other interpretations..Objectively, by appearances, he ‘s surely capable of inflicting damage, and I would say he intends to.

This is a form of propaganda.

It’s suggestive of the segregationist governors standing in the school house door.

If if there were marshalls en route to arrest him, we might say let him rant like he’s Mussolini, more the fool he’ll look when law rolls in and cuffs him and frog-marches him to the federal prisoner van. But there is no cavalry on the way.

Some of his most destructive crimes are still in progress-the Afganistan torture orgy which was up and running while Guantanamo was still a gleam in John Yoo’s eye; the war against Iraq, Half a million dead as of a tear year ago; 20,000 US prisoners in Iraq, 20,000 in secret worldwide sites, a
bsent some authoritative evidence, I think we have to assume the worst case scenario

And the tapping.

Rather than the ground crumbling underis his feet, , I’d say he’s getting away with murderr

# posted by

Thomas : 6:17 PM

Bart:

compel the President to withdraw and surrender in a war

actually, if we were forced to formally surrender in a war (barring, or course, the complete occupation or destruction of our country by the Communist horde/Islamofascist jihadi/pick your boogeyman here), the Senate would have to ratify the treaty of surrender. Unless, of course, you have transferred the power of ratification to the Executive in one of your signing statements.

or extend habeas corpus or civilian criminal constitutional rights to foreign or domestic wartime prisoners. We already did this when we ratified the Geneva Conventions, wherein we must treat captives, even those who violated the GC, with either our civil procedures or our military ones.

Indeed, I am unaware of any time prior to Vietnam that such overreaching proposals were actually debated in Congress or any major political party. (see above)

You cannot fight and win wars with a committee of over 400 CiCs. The Constitution provides for one.
Of the Army; not of citizens. For us, he is supposed to faithfully execute the laws and defend the Constitution. As to his ability to perform those duties, I'll see you at the next signing statement ceremony.

# posted by

Fraud Guy : 10:27 AM

"Don't know why I bothered, as JN demonstrates, that the 'SCOTUS' stole the election for Bush in 2000 is less a conclusion than an article of faith."

It's a matter of law, ass. When will you be reading Article I. of the Constitution for the first time in your life? When will you be noting the Jefferson-Burr precedent?

"JN, do you really think the differences in counting standards I was complaining about were the differences between how punchcard and optical scan ballots were counted, rather than, say, physically identical ballots being counted differently under different circumstances? Even within the same count, in the same county? What kind of moron do you think I am?"

Worst class moron, of course, because that you complain about is a fantasy of your own making. Let us jknow when you've actually read the FL elections laws on this point. And while you're at it, the fact that "cherry picking" in which counties to have recounts -- contrary to the Bushit-Baker line, is expressly stipulated in the FL statute, exactly as it also stands to reason.

"Drop it, we're just wasting bandwidth. Keep your faith, it comforts you."

Read the FL elections laws. But first jettison the Bushit-Baker lies.

# posted by Brett : 7:04 AM

# posted by

JNagarya : 1:10 AM

"And you wonder why the rest of us are no longer listening? Moron."

Ok, then, explain to me the legal basis for the Florida Governor to order local elections officials to use a particular counting standard during a recount ordered by the state supreme court, or even one conducted under ordinary circumstances.

You really don't understand how elections are administered in this country, do you?

# posted by Brett : 5:24 PM

And who was that gang pounding on the walls and doors of the counting-room, in which was being conducted a legal, court-ordered (not FL SC) vote-counting, in order to stop the countng, which is a felonious interference?

They were Republican staffers from Washington, DC, falsely claiming to be outraged FL voters.

And tell use about Choicepoint, the private corporation which "cleansed" the FL voter roles of 50,000+ black voters -- all of whom were alleged during and after the battle, by Republicans, to have been "felons," even though they were not -- and which was founded by a Reaganite. For your information: a Reaganite is a person who was in the Reagan administration. Reagan was a Republican.

And tell us how the FL Sec. of State, a Republican, has no role or say whatsoever in FL elections, down to the local level.

Last but nt least: tell us how the conservative FL SC was instead Liberal.

But stick to the law and the facts, instead of the Bushit-Baker talking points which were exactly opposite the actual FL law.

# posted by

JNagarya : 1:20 AM

Brett's drunk the Koolaid:

Don't know why I bothered, as JN demonstrates, that the 'SCOTUS' stole the election for Bush in 2000 is less a conclusion than an article of faith.

JN, do you really think the differences in counting standards I was complaining about were the differences between how punchcard and optical scan ballots were counted, rather than, say, physically identical ballots being counted differently under different circumstances? Even within the same count, in the same county? What kind of moron do you think I am?

Brett, hate to say it, but the recount at issue in Dubya v. Gore hadn't even begun. How the court determined that a count would be illegal before it ever took place is beyond me; maybe the Supes are clairvoyant.... Whether or not there were differences in the "standards" used to count in the protest phase, Dubya wanted to prevent any statewide recount under the direction of Judge Lewis, and Lewis had the power to ensure uniform standards throughout (and he indicated in comments after-the-fact that he would have taken into consideration the possible "overvotes" as well, as part of an equitable solution).

It was the five dishonest conservatives on the U.S. Supreme Court that insisted that the status quo be kept, and that the certified results (making Dubya a winner, BTW) be retained. But these "certified results" included manual counts from Broward and Volusia (and not from many other counties, although they included the 'stealth' manual recounts from some Republican-leaning counties netting Dubya over a hundred votes), thus ensuring that the very Constitutional "equal protection" issue that the Supes pretended to be worried about would in fact result in spades: Some counties would count only machine-readable ballots, and others would have used a manual standard (of whatever level of scrutiny) of "intent of the voter (as Florida -- and Texas-- law provides). By their "remedy", the Supes caused the very "equal protection" violation they claimed concerned them so. Breyer pointed this fact out in his dissent (and contrary to the claim of the cowardly per curiam, he did dissent).

Just so we're clear on the facts.

Cheers,

# posted by

Arne Langsetmo : 11:02 PM

Brett:

Under conditions most favorable to Gore, and mostly involving clearly illegal counting procedures, you could have transformed Bush's narrow victory into a very, very narrow Gore victory, assuming, (As I pointed out.) that Republican counties agreed to count ballots according to procedures which had been tuned after the fact to optimize the yield of Gore votes.

Utter BS. In fact, in the consortium results, Dubya did better under the loosest standards for undervotes (including the infamous "dimpled chad" standard).

There was not "tuning" for procedures designed to "optimize" Gore's yield. In fact, the consortium published figures from a range of "standards" so that people could see what happened under their preferred "standard", and the conclusion left to the reader. What was dispositive was not the undervote standard, but rather the overvotes, which if counted made Gore the winner under prety much any standard for "hanging chads", "two corners", "dimpled chads" and the like.

Did you really read the articles about this? Are you just dense or are you dishonest?

Cheers.

# posted by

Arne Langsetmo : 11:11 PM

# posted by

Unknown : 6:34 AM