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Bush: Enemy of the Constitution

Tuesday, December 20, 2005
I'm going to set aside my outrage for the moment and focus on an intellectual critique of the President's stalinist actions. The Theocons have presented two arguments in defense of Bush's illegal spying on Americans. Today I will just tackle the first one: that since we are in wartime/a time of crisis, we must defer to the President. This is one of the most common and most wrongheaded theories of Presidential power to develop in the 20th century.

We usually learn in civics that there are 3 different powers - executive (enforce the law), legislative (make the laws), and judicial (interpret the laws). Because the President is granted all executive powers (by virtue of the "vested in" clause), and because the commander in chief and chief diplomat roles are included in Article II under the President, many otherwise smart people assume that the founders placed near total responsibility for foreign policy and war with the President. They also assume that during times of national crisis, the President acquires greater powers.

This view is just wrong.

Let me explain why. There aren't three types of public power, but 5. The other types are federative powers - which include the relationship between a country and other countries (i.e. foreign policy & war), and prerogative powers - the ability to ignore the constitution in times of crisis. As I used to teach in my political science classes, there is no such thing as prerogative powers in the U.S. Constitution. You will search in vain for any language justifying this power being granted to any branch of government either in the Constitution or the Federalist Papers. And for good reason. Many 3rd world dictatorships have been created precisely because the chief executive has declared a state of emergency, suspended the constitution, and governed as a tyrant. In our system, no one has emergency powers. Every power that needs to be exercised in any situation is already allocated by the Constitution. Period.

As for federative powers, this power is supposed to be shared among the 3 branches. This is evident because the Congress must declare war and approve treaties, and that the Supreme Court can enforce international treaties as domestic law. Beyond this, it is clear that foreign policy is NOT an executive power, precisely because it is mentioned in Article II. You see, the President has a total grant of executive powers, but then the same Article talks about pardons, war, and foreign policy. But if foreign policy & war powers were part of executive powers, there would be no reason to mention the President's powers here - it would be redundant, since they were already granted. And given that the founders were strongly influenced by Montesquieu and Locke, both of whom recognized the 5-fold rather than 3-fold division of powers, it should be obvious that they knew that executive powers had nothing to do with emergency or international powers.

As a matter of practice, Presidents have assumed near-total responsibility for waging war and conducting foreign policy, and have been granted far greater discretion during wartime. But this development has been an unconstitutional usurpation of power by the executive. The Congress (particularly the Senate) is supposed to be a co-equal partner in shaping U.S. foreign policy. And grants of power to the President during crises are supposed to be done through acts of Congress, not simple assumptions of power by the executive whenever the executive feels like it. One of the main purposes of constitutional government is to prevent anyone from being a judge in their own case, and to prevent those in power from exercising that power without restraint. The doctrine of the imperial presidency, which denies both of these core principles, is therefore not just a flawed doctrine but a constitutional heresy. That's why Nixon was impeached, and Bush should be - they have no respect for the Constitution they swore to uphold.

Tomorrow I'll take apart the new argument, that Congress did grant the President the authority to spy on Americans without oversight.
Posted by Arbitrista @ 7:35 AM
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