[Note: I'd like to take a moment to pitch for Legal Affairs magazine. The writing is highly intelligent and analytical, yet readable and accessible to non-legal professionals. It also provides one of the most intelligent looks into the contemporary legal issues that we wrestle with daily. I would recommend it as a must-read for any Kossack.]
You can consider it a side-effect of focusing entirely too much on my career that doesn't allow me to pay as much attention to the political goings-on as I'd like. Or you can blame it on the fact that I am also full-time in school trying to become a lawyer. Either way, in my studies about originalist theory and analyzing the role of economic experts in regards to the Daubert standard, I seem to have missed this point.
This is a point that I think is critical to any success we may hope to have at reclaiming our country and halting the damage already in progress.
Lincoln Caplan gets us started after the flip.
From the September | October 2005 issue of Legal Affairs magazine:
. . .
In Republican administrations since Nixon's, . . . there has been a sustained effort to construct for the imperial presidency a foundation in law not contemplated when the Constitution was written. The effort rests on a vision of the separation of powers that has long been a matter of controversy. Called the exclusivity view, it contends that the separation of powers is a division of labor in which each branch of the federal government is solely in charge of the functions assigned it by the Constitution. Applied to foreign affairs, the exclusivity view would give the president almost unlimited powerfor example, as the Bush Administration famously contended, to torture enemy combatants as part of interrogation. The view holds that a law passed by Congress forbidding the use of toruture doesn't apply when the president exercises his exclusive power.
The Supreme Court has consistently rejected this argument.
We can only hope that the Supreme Court will step in to smack down the 4th Circuit and reverse their recent rulings regarding the executive power to declare U.S. citizens enemy combatants and deprive them of any shred of due process. Jurisprudence that allows the executive branch to revoke the legal incidents of citizenship without providing an avenue to challenge such revocation not only stands in opposition to the idea of checks and balances, but also runs fully counter to nearly every aspect of the Constitution by circumventing the judiciary and the legislature.
Justifying resistance to Congress, the exclusivity view also exalts the president's authority as commander in chief. ¶The outlook of Richard Nixon was that he was above the law. Watergate disabused him of that notion. The position of George W. Bush is that he is a law unto himself. With the confidence of those whose party controls each branch of government, as Nixon's, Reagan's, and Bush the father's did not, the president's lawyers are resolutely seeking to make that the country's view. Theirs is a far cry from the framers' intent and reflects a presidency that, rather than imperial, is more fittingly called autocratic.
Pretty solid indictment. Better than just about anything else I've seen scroll across the editorial pages lately.
But wait! There's More!
Caplan's editorial introduction merely sets the table for the main course. Neil Kinkopf sets out a wonderfully insightful article that discusses, in detail, the history of the exclusivity argument and how the Bush administration refuses to abandon an argument that has been repeatedly lost.
IN 1989, ASSISTANT ATTORNEY GENERAL WILLIAM BARR issued an extraordinary, and evidently unsolicited, legal opinion to all agencies of the federal government . . . and his memo read like a Top Ten list of Congress's alleged meddling in the president's business. ¶Never before had the Office of Legal Counsel, known as the OLC, publicly articulated a policy of resisting Congress. The Barr memo did so with belligerence, staking out an expansive view of presidential power while asserting positions that contradicted recent Supreme Court precedent. Rather than fade away as ill-conceived and legally dubious, however, the memo's ideas persisted and evolved within the Republican Party and conservative legal circles like the Federalist Society. They emerged last year in the form of the Bush Administration's memo that asserted the president's power to authorize torture.
Furious George by Neil Kinkopf
It is precisely because of this garbage that Supreme Court nominees like John Roberts need to be opposed. And this is exactly the kind of thing that the Senate Judiciary Committee needs to be asking of the nominees that come before them.
Sitting here on the outside looking in, my intuition is telling me that the "stealth" nominees that "W" is trying to pack on the Supreme Court are those who would support the argument of an exclusivity of powers (though not in so many words). Exclusivity is the new way to circumvent the laws that Congress enacts, like prohibiting torture. Exclusivity is the new way to ignore judicial rulings, such as when a court orders the Justice Dept. to allow a prisoner to have access to his/her lawyer. Exclusivity is the new path to the autocratic rule of the president.