SteveGinIL's Blogtag:www.talkingpointsmemo.com,2008:/talk/blogs/steveginil//84372008-12-02T23:21:06ZMovable Type Pro 4.21-enThe Bush-Cheney Power Grab should die on the vinetag:www.talkingpointsmemo.com,2008:/talk/blogs/steveginil//8437.2465582008-12-02T21:28:29Z2008-12-02T23:21:06ZCharles Homan, in Where the Bush-Cheney Power Grab Went Wrong, had one especially enticing paragraph: Regarding the limits of executive power, I believe Daniel is misinterpreting the point of my last post -- I'm not at all opposed to weakening...SteveGinIL
Regarding the limits of executive power, I believe Daniel is misinterpreting the point of my last post -- I'm not at all opposed to weakening the executive branch, and agree with the broader case he makes for doing so here.
Rather, my argument is that an investigation or prosecution shouldn't
come at the expense of the government's capacity to do its job. A
functional executive and an imperial one are entirely different
things--a point that the Bush administration made quite nicely through
its bungled application of the powers it sought so insatiably.
There is a school of thought that the Constitution is a limiting document,
that every section and paragraph defines both what a branch has the
authority to do, but also, in specifying things, it is also saying no more. What is included in Article II says that only those things are the prerogative of the Executive Branch, and no more.
It
has been, IMHO, the unique direction and distinction of the Bush-Cheney
power grab to declare that whatever is not covered is fair game. They
use the Commander-In-Chief function of the President to simply reach
out and state that this power or that
power is now the President's, because we are at war. And by nebulously
defining war as any time the President has some authority to use force,
that we are, therefore at war, Bush-Cheney swept up any stray powers
that happened to be lying about (a sick bow to Milton Friedman there)
and put them to "good" use. Anything in any gray area, by their
definition, is theirs, both by default and because they saw it first.
In making such grabs, Bush-Cheney, of course, are ignoring the 10th Amendment, which says
The powers not delegated to the United States by the Constitution, nor
prohibited by it to the states, are reserved to the states respectively,
or to the people.
The
point of that is to emphasize that the real power lay in We The People,
who were the ones ordaining and establishing the Constitution. Without
such power, the document means
nothing. The people are the authority. "We the People, do ordain and establish..."
I agree with Charles' use of the word "functional". The Constitution makes the Executive Branch the functional branch of the government, wherein the President is to implement
the laws written by the Legislative Branch. The use of the term
"Executive" is really unfortunate, because - at least on our day and
age - its connotation is that he is one who runs things. In the layout
of the Constitution, however, it narrowly defines the functions as
being the implementation, not the overlord level that
Bush-Cheney have read it to be. If the title were Chief Implementer or
Chief Functionary, we would not be so easy to put the President on a
pedestal. The President is seen by many as our version of a king, and
Bush-Cheney and similar "royalist" types desire to make the President
as much of a monarch as they can. No one who has ever read the tiniest
bit about the Founding Fathers' intent in writing the Constitution can
but think that they were doing everything in their power to prevent the
office of the President from having a serious consolidation of power.
They intended a weak Presidency. They had just come
through decades of abuses by a king and wanted no more of kings. So,
arguments about weakening the Presidency would surely make Adams and
Jefferson happy stiffs.
Do be aware how few powers are actually granted by the Constitution to the President: The phrase "shall have power" is only used three times in all of Article II. The only other use of the word "power" in Article II is in its beginning where it states, "The executive power shall be vested in a president..."
Very little power. Very little. Duties, yes. Power? Do the job, make it happen. Pardon a guy here and there. Manage the government.
Basically,
a weak Presidential position is a good thing, according to those we
look to as our wise forefathers. The power was to rest within the
Legislature, and We The People.
Where the Legislature empowers
the President, within laws it passes, to implement their directives,
Constitutionally his only power is to implement them as written, and to
direct those in the Executive Branch in how to implement those on his
behalf and within those laws as written. Any power beyond those
Constitutional ones? Well, actually, outside them, he has none.
Where
Congress has been sloppy about how such implementation is to take
place, the President has, from time to time sought to act as if he has
more power than before. But that "power" is an illusion; the power
derives only from Congressional errors and oversights and may be
reduced at any time by the Congress. Ask the ghost of Richard Nixon if
the President has to apply the laws as Congress wrote them. And Ronald
Reagan (re Iran-Contra): Reagan was so very close to being impeached
himself, had Congress chosen to hold his feet to the fire. That
oversight, of course, had much to do with the later boldness and
assertiveness of Bush-Cheney (certainly based on Cheney's reaction to
Congress' reticence to act.)
What we have ended up with is a
rogue Presidency-Vice-Presidency, one completely unintended by the
Founding Fathers. Reigning it in demands more than merely allowing
them to ride out the wave and ride off into the sunset. The rogue
element has to be both eliminated and proscribed for future office
holders. There is nothing in the Constitution which gave such powers,
and nothing in laws since written that allows for such Dirty Harry
activities on the part of the Executive branch. If there were any such
earlier laws, Reagan would not have pulled in his horns, nor Nixon have
been forced to resign. If there were any more recent than Watergate
that expanded and took the muzzle off the Executive Branch, we don't
know about it. Not until Bush-Cheney bum's-rush passed The Patriot Act
- which needs to be repealed.
The AUMF was for the purposes of
the defense of the U.S. as it regarded the attackers of 9/11. It was
never intended to allow an unfettered grab for not only governmental
powers, but grabbing for worldwide powers as well. None of that was
within the law as written (except in the sloppiness of the way
Bush-Cheney forced its writing as they put the bum's rush on Congress
to DO SOMETHING ANYTHING right away - almost certainly knowing what the
gray areas were and with the intent of exploiting them).
Let it
be fully understood that the Congress - most especially the 109th
Congress - abdicated its role in favor of the Executive Branch. Much
could be argued that the Executive Branch has not necessarily seen its
powers expanded as that the Congress has given its powers away.
So,
much of the work to be done has to do with Congress. But part of that
effort must be to direct its attention to what may be abuses of power.
Above abuses of power, however MUST be serious attention addressed
toward what are prima facie cases of actual illegalities - torture,
eavesdropping outside FISA, kidnappings/renderings, violations of habeas
corpus, lying to Congress in order to invade a sovereign nation that
had nothing to do with 9/11, outing a covert operative. Abuses,
illegalities - both require action.
Those who say. "Let 'em off;
the country couldn't stand the trauma" - where were they as Bill
Clinton was being dragged through a doomed impeachment trial 8 years
ago? (Doomed because they never had the votes to convict...)
If
ONE President is to be held to answer for one lie, then all Presidents
must be held accountable for their lies, as well as their other
violations of laws and treaties. Those on the Left who believe
themselves to be above such prosecutions should just get the heck out
of politics. If they don't have the stomache for it, let those who do
hold the day.
Most of us have forgotten that Bill Clinton was
held in contempt of court for his lie, and had a fine and his law
license suspended. He suffered the punishment of a US court for one
lie. What in blue blazes are people arguing about T&R commissions
for? If laws were broken, legal remedies exist. T&Rs? Did I get
one for my last speeding ticket? I would have loved that. Did Duke
Cunningham get a T&R commission? Ted Stevens? Are Congressmen
subject to the law, but not Presidents and Vice Presidents? Tell that
to Spiro Agnew.
No one is above the law. if America stands on one principle, that is it.
T&R
commissions are outside the courts. Yes, we could have them. But what
for? If the law-and-order crowd want anyone to believe they are about
law, then they should be the first to yell, "Bring it on!" about
criminal investigations, and if indictments are warranted, prosecution
to the full extent of the law. And if not, then we should all shut up.
One more thing: The thought of "Make them an example" surely comes to mind.
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