January 26, 2009

Lawyer: OK for prez to ditch Constitution if he’s “popular”

University of Baltimore law professor Garrett Epps has a rather … “unique” take on the presidency and the Constitution. In an otherwise interesting article on executive authority and the stupidity of the length of time it takes for an American president to take office after being elected, Epps then focuses on George Bush’s constitutional “transgressions” (my emphasis):

Under the pen name “Pacificus,” Hamilton wrote a defense of Washington’s power to act without congressional sanction. The first Pacificus essay is the mother document of the “unitary executive” theory that Bush’s apologists have pushed to its limits since 2001. Hamilton seized on the first words of Article II: “The executive power shall be vested in a President of the United States of America.” He contrasted this wording with Article I, which governs Congress and which begins, “All legislative powers herein granted shall be vested in a Congress of the United States.” What this meant, Hamilton argued, was that Article II was “a general grant of … power” to the president. Although Congress was limited to its enumerated powers, the executive could do literally anything that the Constitution did not expressly forbid. Hamilton’s president existed, in effect, outside the Constitution.

That’s the Bush conception, too. In 2005, John Yoo, the author of most of the administration’s controversial “torture memos,” drew on Hamilton’s essay when he wrote, “The Constitution provides a general grant of executive power to the president.” Since Article I vests in Congress “only those legislative powers ‘herein granted,’” Yoo argued, the more broadly stated Article II must grant the president “an unenumerated executive authority.”

… the most dangerous presidential malfunction might be called the “runaway presidency.” The Framers were fearful of making the president too dependent on Congress; short of impeachment—the atomic bomb of domestic politics—there are no means by which a president can be reined in politically during his term. Taking advantage of this deficiency, runaway presidents have at times committed the country to courses of action that the voters never approved—or ones they even rejected.

… but sometimes a president with little or no political mandate uses the office to further a surprising, obscure, or discredited political agenda. Under these circumstances, what poses as bold leadership is in fact usurpation. The most egregious case arises when a president’s policy and leadership have been repudiated by the voters, either by a defeat for reelection or by a sweeping rejection of his congressional allies in a midterm election. When that happens, presidents too often do what George Bush did in 2006—simply persist in the conduct that has alienated the country. Intoxicated by the image of the hero-president, unencumbered by any direct political check, stubborn presidents in this situation have no incentive to change course.

You may be wondering (as I most certainly was) what Epps thinks about those who vastly “outclassed” George W. Bush in terms of “exceeding” constitutional authority – people like Abraham Lincoln and FDR (whom I bring up quite often when I hear people call Bush the “worst president to ever trash the Constitution,” etc.). Epps doesn’t disappoint. Sort of:

American political commentators tend to think loosely about exertions of presidential authority. The paradigm cases are Lincoln rallying the nation after Fort Sumter, and Roosevelt, about a year before Pearl Harbor, using pure executive power to transfer American destroyers to embattled Britain in exchange for use of certain British bases. Because these great leaders used their authority broadly, the thinking goes, assertions of executive prerogative are valid and desirable.

Certainly there are times when presidential firmness is better than rapid changes in policy to suit public opinion. Executive theorists in the United States often pose the choice that way—steady, independent executive leadership or feckless, inconstant pursuit of what Hamilton called “the temporary delusion” of public opinion. But not all shifts in public opinion are delusive or temporary. An executive should have some independence, but a presidency that treats the people as irrelevant is not democratic. It is authoritarian.

Here, Epps demonstrates plain ‘ol ridiculous partisanship, not to mention intellectual dishonesty. First, he labels George W. Bush as a “runaway president” by the year 2006, claiming that there were no “direct political checks on him.” There weren’t? The election of 2006 saw the House and Senate revert back to Democrat control! How is that not a direct check on Bush’s power as president? The only rational explanation, which Epps doesn’t even cleverly avoid, is simple: The Democrats chose not to check the president. Period.

But more disturbing is Epps forgiveness of Lincoln’s and FDR’s constitutional violations, the former by far engaging in the worst. He merely skates over what these presidents did, stating nebulously that “because these great leaders used their authority broadly,” what they did was … OK? Please, Mr. Epps, define “used their authority broadly.”

Epps is attempting to make the case that what Lincoln and FDR did was “OK” and what Bush was not, because, in his view, Bush didn’t have public opinion on his side. Preposterously, it is only “authoritarian” for a president to violate the Constitution if a chief exec does it against popular will! So, Lincoln unilaterally suspending habeas corpus – though that is a power specifically reserved for Congress – was “OK,” because the polls favored him. Ditto the jailing and exiling of political enemies. FDR violating Congressionally-passed laws regarding the assistance to England, not to mention the incarceration of Japanese-American citizens? Hey, he was popular.

But back to George Bush: It’s telling that Epps uses the benchmark year of 2006 to make his case, such that it is. For, Bush began pushing and utilizing his supposed extra-constitutional authority at the very height of his popularity – back in the days immediately after 9/11. Thus, he really doesn’t differ at all from Lincoln and FDR, does he? When Bush’s poll numbers began plummeting, he lost the mid-term elections (2006). (Interestingly, in contrast, the GOP actually picked up seats in 2002 which was unprecedented.) But, as I noted above, Epps’ claim of Bush’s “authoritarianism” is ridiculous as the Democrat House and Senate did nothing to “rein Bush in,” so to speak.

Posted by Hube at January 26, 2009 05:12 PM | TrackBack

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