Executive Authority Revisited

Tuesday, September 26, 2006

Last week the rift in the Republican Party with regards to treatment of ememy combatants was apparantly resolved after last minute parleys between the Bush Administration and senior Rebublican Senators and Congressmen. It seems as though the administration has made concessions regarding the need for a defendant to actually HEAR evidence presented against him. This compromise also alleges to narrowly interpret the provisions of the Geneva Convention regarding torture and treatment.

Nevertheless, the Bush Administration continues to claim executive authority regarding policy and, to my way of thinking, this is the kind of policy attitude that brought us down this road in the first place. Bush, Cheney, et al, insist that the 2nd Article of the Constitution provides for this unlimited executive authority as it applies to the President's Commander in Chief role. Section 2 of Article 2 merely states that he DOES have Commander in Chief powers. Period. There is no emunmeration regarding specific duties, about executive perogative, nor the extent of executive authority. To read into the Consitution such attributes as described would be an incredibly liberal interpretation of this instrument. And, considering the fact that this administration, particularly, has declaimed repeatedly against "activist judges" who liberally interpret the Constitution at their own whim, it seems to be rather, if not entirely, disingenuous.

I have heard, on many occasions, the expression, "What would the founding fathers have said or done" regarding any specific interpretation of this or that clause. A reading of the Federalist Papers will make abundantly clear that the founding fathers were particularly concerned about, and fearful of, an overly strong or extended Excutive Branch of the government. They attempted to sufficiently separate or balance the powers amongst the three branches with the intent that the other two would provide oversight and, if necessary, a stopgap, to executive powers gone wild.

It must be evident that the kind of Consitutional interpretation we see from this administration is EXACTLY the kind of extension of powers and authority that the founding fathers feared. Their intent was that the other two branches would not allow this to happen, but they had not accounted for the sell out we now see from the legislative, to a greater extent, and the judicial, to a lesser extent, branches. At least the Supreme Court has made wise and definitive rulings that tend to limit the Bush agenda. But, this highly partisan Congress need only revise statutory law to cricumvent the courts. If Congress decided to limit our concurrence with the Geneva Convention, or if it decided to amend the War Powers Act to serve the Administration's goals, there is little the Supreme court can do. Yes, they have the power of judicial review, but considering the nature of our current Supreme Court, it is far from certain that they would be able to be objective. In the case of Hamdan v. Rumsfeld, the court really had no choice but to rule in favor of Hamdan because of the nature of statutory law AS IT EXISTS today. But, would the court be as nonpartisan were the statutes different?

To many of us, the resolution of this conundrum regarding the apparent lack of separation of powers is to restore Congressional oversight. If only to restore the balance of power, it is critical that we not have an executive, a legislative and a judiciary that all march to the same drummer. Is this not self evident? Even if a person is a fiscal conservative and subscribes to conservative values, can they not see the logic of divided power which assures the system of necesary checks and balances and keeps the government from running amuk?

As we approach the midterm elections, it is critical that we keep in mind the spirit of the Consitution and those who constructed it. They valued a free press more than they valued a strong executive. Their concern for the individual far outweighed their concern for the state. they feared any system of government whose executive power became so unrestrained as to approach the dreaded monarchy they fought against. Let us reaffirm their intent and return to a government that subscribes to a bipartisan and balanced approach.

trickster108