After the Imperial Presidency

An excellent magazine piece by Jonathan Mahler examines whether a Democratic Congress has made any strides in reasserting Congressional authority over the executive (not much) and what the implications are.  From the summary:

Will Congress simply insist on being asked for its blessing before empowering the president to do whatever he sees fit? And if so, what will it take for what the historian Arthur Schlesinger Jr. identified as democracy’s greatest virtue — “its capacity for self-correction” — to kick in and restore the constitutional balance?

Cheney reclassifies self to avoid disclosure

Vice President Dick Cheney has made a career of avoiding public scrutiny in his time in the Bush Administration. His privacy-seeking has ranged from hiding his person in "undisclosed locations" after September 11 to hiding the list of executives involved in energy policy discussions in 2002 to scrapping any efforts by the Secret Service to keep visitor records to his private residence.

Now the Vice President is claiming that he's not subject to rules governing the safeguarding of national security information because "he's not part of the executive branch." Arguing that his only constitutional role is the President of the Senate, Cheney claims that his office is exempt from the executive order requiring all executive agencies and offices to comply.

The irony is that Cheney's got an impressive history of scurrying from public scrutiny and record-keeping, all justified under the guise of "executive privilege." Here's some samples from the House Committee on Oversight and Government Reform:

Exempting the Office of the Vice President from the Executive Order on Classified National Security Information. Over the objections of the National Archives, Vice President Cheney exempted his office from Executive Order 12958, which establishes a uniform, government-wide system for safeguarding classified information. In response to the protests of the National Archives, the staff of the Vice President proposed abolishing the office within the Archives that is in charge of implementing the executive order.

Blocking GAO Oversight. In 2001, Vice President Cheney headed a task force to develop a national energy policy. After GAO sought to learn the identity of the energy industry officials with whom the Vice President’s task force met, Vice President Cheney sued the Comptroller General to prevent GAO from conducting oversight of his office.

Concealing Privately-Funded Travel. Vice President Cheney has refused to comply with an executive branch ethics law requiring him and his employees to disclose travel paid for by special interests.3

Withholding Information about Vice Presidential Staff. Every four years, Congress prints the “Plum Book,” listing the names and titles of all federal political appointees. In 2004, the Office of the Vice President, for the first time, refused to provide any information for inclusion in the book.

Concealing Information about Visitors to the Vice President’s Residence. The Vice President has asserted “exclusive control” over any documents created by the United States Secret Service regarding visitors to the Vice President’s residence.5 This has the effect of preventing information about who is meeting with the Vice President from being disclosed to the public under the Freedom of Information Act.

Allowing Former Vice Presidents to Assert Privilege Over Documents. An Executive Order issued by President Bush in November 2001 provided the Vice President with the authority to conceal his activities long after he leaves office. Executive Order 13233 took the unprecedented step of authorizing former Vice Presidents to assert privilege over their own vice presidential records, preventing them from being released publicly.

And as the latest scandal involving use of Republican National Committee email addresses for official business unfolds, it's clear that the safest thing for America is to impeach Cheney.

The bandwagon nearly full, President Bush hops on

In a reversal of his long-expressed belief that the federal government's Environmental Protection Agency lacked the authority to regulate carbon emissions, and on the heels of a Supreme Court decision explicitly overruling him, President Bush has hopped on the carbon regulation bandwagon.

President Bush yesterday ordered the Environmental Protection Agency and three other federal departments to write new regulations to reduce greenhouse gas emissions from automobiles and trucks, reversing his position that the federal government lacks the authority to mandate changes to curb one of the chief causes of global warming.

The turnaround is somewhat surprising, given Bush's slow conversion to fact-based theories on climate change. And yet, I've been baffled by the President's rationale for holding out so long. Since when has President Bush said he lacks the authority to do anything?*

*Note: see warrantless wiretapping, suspending habeus corpus, or condoning torture.

The man who would be king

After viewing the Jon Stewart - Bill Moyers discussion yesterday, I was left pondering Stewart's argument about the President: that his underlings take the fall when the President steps on the law. Today I came across several interesting tidbits on the administration's assertion that Bush is above the law.

One writer at Dailykos notes that Bush's decision to veto the war legislation differs from his previous use of a signing statement to essentially ignore certain portions of the law. Previously, Bush has asserted the power of the executive by simply ignoring directives of Congress or laws that he feels impede his role as Commander-in-Chief. In this,

Another post from a Kossack says that the academic underpinning to Bush's extralegal manuevers is essentially this: by being President, Bush is above the law. He quotes extensively from blogger Glenn Greenwald, who digs through the academic-speak to the point:

In that article, Mansfied claimed, among other things, that our "enemies, being extra-legal, need to be faced with extra-legal force"; that the "Office of President" is "larger than the law"; that "the rule of law is not enough to run a government"; that "ordinary power needs to be supplemented or corrected by the extraordinary power of a prince, using wise discretion"; that "with one person in charge we can have both secrecy and responsibility"; and most of all:

Much present-day thinking puts civil liberties and the rule of law to the fore and forgets to consider emergencies when liberties are dangerous and law does not apply.

"Law does not apply" -- that is Mansfield's belief, and the belief of the Bush movement. (emphasis from dKos)

And how do Americans respond to such actions? We could start by listing our grievances regarding President Bush:

He has refused his Assent to Laws, the most wholesome and necessary for the public good...He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records...He has obstructed the Administration of Justice...He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people...He has affected to render the Military independent of and superior to the Civil power.

The last time we had these grievances, we took this action:

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by the Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.

Or we could help Congress re-assert the rule of law.

Even conservatives support the Bill of Rights

He may not be a progressive's favorite Supreme Court justice, but Antonin Scalia is showing a surprisingly strong resistance to overreaching executive power during the "War on Terror." The article explores Scalia's firm but narrow commitment to the Bill of Rights and his subsequent impatience with the Bush administration's claim of expansive executive power in times of war.

I think it's also interesting because, as I understand it, many of the drafters of the Constitution thought the Bill of Rights unnecessary - or more specifically, redundant. It doesn't look so redundant now...

Laws are inevitable, but compliance is optional

In the United States, we hold that our leaders are still subordinate to our laws and our Constitution. It's why the President's oath of office reads:

"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

So it's interesting that our Presidents have, with some regularity, challenged laws enacted by Congress and used "executive discretion" to argue that they will not enforce or follow the law. What's not so remarkable is that President Bush as disproportionately resorted to this tactic, having challenged the authority of the law on no fewer than 750 occasions.

True, laws are different from constitutional articles, but one might argue that the law is the spirit of the Constitution. In his book The Future of Freedom, Fareed Zakaria notes that the difference between successful and failed democracies is not freedom, but rule of law. The illiberal democracies have leaders who amend constitutions or ignore laws they find inconvenient, frequently throwing the country into turmoil.

It's disappointing to see that in addition to providing poor leadership on issues of human rights and torture, we're doing the same when it comes to equal justice under law.