« Constitutional Matters | Main | A Word About Numbers »

Constitutional Crisis

This subject is so important that it bears repeating: we are headed towards an acute constitutional crisis, accelerating the slow-motion crisis initiated by Bush v. Gore. I trust it's clear that this is not hyperbole nor motivated by disagreement with Mr. Bush's policies. I simply want this issue to receive the attention it deserves. We as a nation need to talk about this. In that spirit, I'm going round up the day's discussion on this critical matter. Let's start with Josh Marshall again, who I quote in full:

Paul Kiel's got more of our run-down here on the war-financing issues related to President Bush's claim to be a king. But it occurs to me that this 'debate' is really only a debate if you see this not as wrestling over policy between the president and the Congress but as President Bush as an epochal figure, a man of destiny in a grand historical struggle who has powers to answer to grander than Congress or the constitution. I know that may seem like hyperbole saying that. But if you listen to this conversation, I really think that's the subtext. Sure, Congress has the power of the purse, the thinking seems to go. But this is bigger than Congress. Bigger than the niceties of the constitution. This is his rendezvous with destiny in Iraq, the key battle in World War IV or IX (I don't remember which we're up to.)

At a certain level this isn't that complicated. The president and the Congress have a set of intentionally countervailing powers. And it is within that framework that we, as a nation, hash out our direction on great matters of the day like this one. But what I'm hearing is that what President Bush is up to in Iraq is bigger than all that.

And that leaves us in the dangerous position of the constitution vs. the president's grandiosity.

Emphasis mine. I'll have more to say about this notion of the President being bigger than the law in a future post but I would like to comment on Josh's suggestion that this isn't complicated. It isn't. I learned about balance of powers and separation of powers when I was a child, for christssakes. Having to explain this elementary stuff seems, well, odd. But that is where our national conversation has gone. I was taught about these features of American government when I was young, I presume, to inculcate me with a sense of respect for the thing the Founders built. And I think that it is justified; it is quite a piece of work. So naturally I get angered when that thing I respect, the US Constitution, gets trampled by a man who thinks he's the King.

By the way, the link Josh provides is worth quoting as well. And no, I didn't copy my arguments from Paul Kiel, I came up with them on my own.

The issue of whether Congress has the power to use the purse to direct Bush's handling of the war is pretty much settled: it does, and it has, several times in the past, as the Center for American Progress demonstrates here.

The question becomes, will Bush respect the limits Congress sets? Or will he push to escalate a war that the Congress and the American people don't want, and setting up a constitutional crisis?

The Bush White House, after all, has often claimed unprecedented executive power. This issue is no exception. "Until the Bush admininistration, no president had ever argued in writing to the Supreme Court that a statutory restriction on his war powers was unconstitutional," Georgetown Law Professor Marty Lederman told me (he expounded further on this question here and here).

"All of our understandings and practices are based on a White House that's more compromising and accommodating than some people feel this White House will be," Scott Lilly, a former House Appropriations staffer, told me. So what happens if Congress makes its move and Bush ignores it? Good question.

A nice summation that provides links to relevant information. And most important, it asks the important question of what happens when Bush ignores the law and the people. I mean, this is as serious as it gets. Power in the United States comes from two things: the law (Constitution) and the people (elections). Bush is setting himself up to disregard both. The would-be source for this authority is the President's powers as commander in chief (Art. II, sec. 2). Of course this power of the sword is countered by Congress' power of the purse and the power to declare war (Art. I, sec. 8). The House of Representatives was designed to be most accountable to the people (popularly elected every two years) so it is imcumbant on them to express the will of the people. Although Senators were not popularly elected until passage of the 17th Amendment in 1913, and they have different dutues than the House (the Senate was designed to be consulted on matters, ratify treaties, approve cabinet members, etc.), they are also theoretically subject to the will of the people. So if the people of the United States want out of Iraq on a timetable (they do) and oppose an escalation (they do) then Congress must make that happen. And if the 110th Congress was not elected for that reason, then I'm not sure why they were elected.

The President, having claimed powers that appear nowhere in the Constitution and who has admitted to and argued for ignoring those provisions in the Constitution that curtail his power, has claimed sovereign power for himself only. Sovereignty is power of the state, and the first man to provide a modern philosophical argument for sovereign monarchy was Hobbes. The sovereign is immune to dissent and his will is reality. Bush and the legalists who argue for for him are setting up a Hobbesean monarchy. It isn't sudden, like Hobbes' covenant springing forth from the state of nature, it has been gradual, and proceeded ostensibly from the national security interests of the United States. Enough people have finally noticed that our national security has actually been damaged by Bush that they no longer trust him with such matters. That is why the pundits and politicians and intellectuals who support Bush have turned against the people, blamed them for the problems in Iraq, and taken a position of moral superiority, casting the "war on terror" as a global struggle against Islamic Jihadism. I have no doubt that is always how the neoconservatives saw things, but they didn't bring out this argument in force until all the other justifications for Iraq had dried up. And saving their reputations as wise men has coincided nicely with Bush's desire to be powerful and make his mark on history.

In the process American democracy and the Constitution suffer. That is intolerable and that is why the crisis looms.


TrackBack URL for this entry:

Post a comment