Yesterday, georgia10 wrote a
front page piece about Sen. Specter's toothless bill that might restore some actual constitutionality to the administration. For the uninitiated, the POTUS had been allowing warrantless domestic wiretaps by the NSA on anyone deemed a terrorist.
Conservative jurists are typically bred in Federalist Society law school organizations. What the American Constitution Society is to progressive and center-left law students, the Federalist Society is to the right. But by any objective standard, the actions of the administration and the lapdog Congress are the antithesis of what the federalists intended.
More after the jump.
What follows draws upon a scholarly essay I just wrote about the evisceration of checks and balances and how the administration and Congress are betraying the Madisonian and Hamiltonian ideal. Certainly it is not the finest piece of legal scholarship you'll ever read: it was written over two days for a grade in a one-credit legal seminar--which is to say I exerted the minimum amount of necessary effort. But I think it is quite salient, given recent developments. It's long, but it demonstrates just how far we've strayed from what the founders intended.
In one of the more memorable Federalist Papers passages, James Madison opined in Federalist No. 51 that the only way to maintain separation of powers was to establish the structure of the federal government so that the different branches would necessarily serve as a check on the other(s). "Ambition must be made to counteract ambition," said Madison.
To be sure, this principle is almost universally held today. Rare is the individual who does not believe in the theoretical ideal of checks and balances. What is difficult to believe is that the principle expressed by Madison is the same one being currently applied by the three branches of government.
Since talking office in 2001, President Bush had not vetoed one piece of legislation through July 11, 2006. Part of that is certainly attributable to Republican control of Congress--the Congressional leadership and the President probably approach most issues with similar mindsets. But unless that is the entire reason that the President has yet to veto any legislation from Congress--and it is difficult to believe that it is, then it would seem Madison's dictum in Federalist No. 51 that "each department should have a will of its own" is not being fulfilled.
Passed in the wake of the September 11, 2001 terrorist attacks, the USA Patriot Act was controversial from its beginning. In particular, Section 212 circumvents the check of the judiciary by authorizing government receipt of electronic communications from an internet service provider (ISP) without a warrant.
In a similar vein, the current Congress has seemed to play a willing role in the erosion of its and the courts' abilities to check the president's authority, particularly when it comes to issues of national security. One such example was the authorization of the USA Patriot Act.
Section 212 of the Patriot Act permits ISPs to voluntarily transmit user information to law enforcement agencies without requiring a subpoena or court order. Prior to this act becoming law, law enforcement officials had to get permission from either a judge or grand jury. Under Sec. 212, "if the provider reasonably believes that an emergency involving immediate danger of death or serious physical injury to any person," it may turn over any electronic message to law enforcement it deems necessary (emphasis added). If that was not enough of an infringement on checks and balances, the Homeland Security Act modified Section 212 to make any judicial check even more non-existent. Looking back at the italicized portion above, "reasonably believ[ing]" that a life or health-threatening situation was imminent is no longer required--now a "good faith belief," suffices. The Homeland Security Act also allows ISPs to use the belief in an emergency to disclose data to any part of the government, instead of just law enforcement. Finally, this Act also removes the requirement that the threat be immediate. In essence, significantly more power has been granted to the executive than Madison probably envisioned, especially since it came at the expense of the judiciary.
Besides being an affront to the principles of Federalist No. 51, it is also contrary to what Federalist No. 78 called for: judicial review. Federalist No. 78, written by Alexander Hamilton, held that the judiciary would constitute an "excellent barrier to the encroachments and oppressions of the representative body." By passing legislation that encroaches on the civil liberties of all Americans and taking away the power of the judiciary to be the kind of barrier Hamilton spoke of, the very ideal of Federalist No. 78 is eviscerated. Even worse, the ideal of Federalist No. 51--checks and balances--is impossible without the judicial review outlined in No. 78, and is exacerbated by the willingness of the legislative and executive branches to have any checks and balances between themselves.
In a previous paper, Madison had already spelled out just how objectionable the absence of separation of powers was. In Federalist No. 47, he expressed that consolidating power in the same branch, any branch, would be pure tyranny by any measure.
If we take Madison at his word from No. 47, then what the federal government is doing today, under the banner of "national security," is nothing short of tyranny. Even if one were to agree with the aims of the so-titled "War on Terror," the process by which it is carried out leaves little to believe that Madison or any of the other Federalists would be any more accepting of the administration's actions through the lens of No. 47 than they would through any of the other papers.
While the previously discussed disregard for judicial review is particularly galling, so too is the brazen disregard of Congressional checks on the rare occasions the Congress is willing to check the president on terror. One prime example would be the recent re-authorization of the aforementioned USA Patriot Act. In March, the President signed the reauthorization of the Act, which had been extended and amended in advance of its expiration. As noted earlier in this essay, the Patriot Act contains several provisions giving a wide-sweeping expansion of powers to executive law enforcement agencies, like the FBI. As a compromise with Congressional members uneasy with this expansion, the reauthorization of the Act mandated that the executive branch make regularly scheduled reports to Congress on just how their powers are being used. Immediately after signing the Act, the President explained that he has no intention of being bound to report Patriot Act activities to Congress and declared that if he determined disclosure would "impair foreign relations, national security, the deliberative process of the executive, or the performance of the executive's constitutional duties," then he was within his rights to ignore the law.
Such a move is not without precedent in this administration. In December, 2005, the President declared that he had the right to bypass court-mandated warrants to obtain wiretaps on domestic telephone calls. The Attorney General defended this declaration, stating that Congress had authorized the President to do this when they authorized him to use force in going after al-Qaeda terrorists.
To be fair, Madison probably never envisioned anything like the war on terror when he authored Federalist Papers 47, 51, and 78. But he was always clear about the necessity for a legitimate system of checks and balances. When he wrote that centralizing power in any one branch was tyranny, that was not designed to last only for as long as Madison was alive, it was intended as a timeless philosophy. The executive branch's open disregard for the checks of the judiciary and the legislature not only demonstrate such tyranny, but a general disregard for the Madisonian principle of separation of powers. In No. 78, Madison said that the judiciary must rely on the executive branch for the efficacy of its rulings to take root. When the executive branch weakens the judiciary's powers to the benefit of its own, then it hardly seems in any place to benefit the efficacy of the judiciary.
So there, you have it. The administration has basically said to hell with separation of powers, and the lapdog Congress said OK. Will Specter's bill do any good? Maybe. But given this Congress's track record, I don't have high hopes.
On the Web:
Federalist No. 47
Federalist No. 51
Federalist No. 78
USA PATRIOT Act
Homeland Security Act of 2002
Boston Globe: Bush shuns Patriot Act requirement.
Pittsburgh Post-Gazette: President fiercely defends wiretaps