Go ahead, Texas

In case you missed it, Texas governor Rick Perry suggested recently that Texas may want to secede from the Union because the stimulus bill is such a blow to the Constitution.

One election blogger suggests that the Democrats should seriously consider this idea.

A victory for rule of law

A judge ruled today that White House aides cannot ignore Congressional subpoenas, but even more significantly, told the Bush Administration that courts, not the President, determine the extent of executive privilege. 

In essence, Judges Bates held that whatever immunity from Congressional subpoenas that executive branch officials might enjoy, it is not “absolute.” And in any event, he said, it is up to the courts, not the executive branch, to determine the scope of its immunity in particular cases.

Hooray for checks and balances!

The power to declare war

An interesting look at the Constitutional authority to declare war, including a letter written by Abraham Lincoln on why it's important for Congress to retain it.

Do lobbyists muck up the American political system?

Factcheck.org looks at lobbying in the Constitutional context.

I'd like to take this moment

To say thank you for the 22nd Amendment.

Dick Cheney - greasing the skids for corporate America

The Washington Post is spending a significant amount of time investigating Dick Cheney's role as Vice President. Their latest story looks at his activity in navigating and bending the bureaucracy to the will of the President, riding roughshod over environmental regulations and other popularly supported legal measures.

It was Cheney's insistence on easing air pollution controls, not the personal reasons she cited at the time, that led Christine Todd Whitman to resign as administrator of the Environmental Protection Agency, she said in an interview that provides the most detailed account so far of her departure...It was Cheney's insistence on easing air pollution controls, not the personal reasons she cited at the time, that led Christine Todd Whitman to resign as administrator of the Environmental Protection Agency, she said in an interview that provides the most detailed account so far of her departure.

Of course, this is nothing compared to his latest attempt to avoid government disclosure rules by arguing that the Vice President is not part of the executive branch.

Not everyone is accepting Cheney's latter statement sitting down. Congressman Rahm Emanuel promptly introduced an amendment to a funding bill to strip executive branch funds for Cheney's office. He also released the following chart and statement illustrating Cheney's understanding of the branches of government:

"Today, we discovered that everything we learned in U.S. government class was wrong. Evidently, the Vice President does not consider himself a part of the executive branch, and therefore believes he can obstruct meaningful oversight and avoid being held accountable. If the Vice President truly believes he is not a part of the executive branch, he should return the salary the American taxpayers have been paying him since January 2001, and move out of the home for which they are footing the bill."

Snap!

President Bush gets his war bill

Congressional Democrats caved this week, giving the President Bush a war funding bill with no deadline. Let me count the ways this stinks:

1. The American people sent the Democrats to Congress in a landslide victory in November 2006 because of two things: Republican corruption (Tom DeLay, Tom Foley, et al) and the War in Iraq.
   
2. Congress has been reasserting its rightful constitutional authority by starting investigations of many highly corrupt activities in this administration (wiretapping, political nepotism, lying, cheating, stealing, et al). Taking control of the purse strings is part of that job.
3. What really serves the troops better? Giving the President license to keep them fighting and dying or bringing them home?

Let's put it this way. The constitution expressly gives the power of warmaking to Congress. Here's a quick tutorial on war powers, for those whose last constitution-reading came in high school:

ARTICLE 1, SECTION 8

The Congress shall have Power:

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress....

ARTICLE II, SECTION 2

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States....

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur....

Notice where most of the bold type is? Congress - the people - rules the army. In other words, Congress decides how big the army is, when it should be called into action, how it shall be funded, and when it shall come home. The President's constitutional authority is to toot the horn.

Congress should pass a deadline for troop withdrawal by cutting off war funding. Then let President Bush decide whether to toot the horn for withdrawal - he either brings the troops home, or wants them to fight without money. Who supports the troops then?

A constitutional crisis or a legitimate search?

For those who have missed the big to-do, the FBI search of a Congressman's office last week has kicked up a duststorm between the legislative and executive branches. The Congressman is under investigation for various crimes, including bribery, and the FBI sought and obtained a warrant to search his Capitol Hill office. Legislators are displeased, to say the least.

The controversy comes down to a constitutional clause (Article I, Section VI): members of Congress "shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place."” The Supreme Court has affirmed that this clause protects a member's documents and files from search and seizure. And in the 219 years under this Constitution, there has never been a search of a member's office.

There's also the fact that the Congressman has not actually been indicted. I'm not a lawyer, but I can seen how that makes the issue a little more sensitive (the FBI still has a court-authorized warrant, however).

But the deeper analysis seems to support the FBI search as legitimate. First, many members of Congress, including Randy "Duke" Cunningham have been arrested and convicted of crimes while sitting in Congress. And the courts have upheld that the constitutional clause above does not shield legislators from criminal prosecution - it's supposed to protect their speech and votes on behalf of their constituents. The real danger in this instance is not the protection of Congressional privilege, but the potential for collateral damage when the representative's files are sifted by FBI agents, potentially imperiling the privacy of innocent third parties.

Ultimately, it seems that the search of the Congressman's office, however unprecedented, is simply the reasonable, court-sanctioned extension of a criminal investigation into a new area. However, as Akhil Reed Amar notes in his Slate article, " even if William Jefferson and his congressional colleagues do not have a winning constitutional argument, the president and his men might do well to tread lightly." Sage advice for the sake of constituent privacy and the peril of waking the sleeping giant in Congress.

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.