Nice Plan Mr. President…Sure Hope It Lasts
I’ve mentioned before that one of the greatest threats to liberty is the imperial presidency. Once the executive gathers up power, it is – like any other human institution – loath to give it up. The irony of course is that all this talk of “limited government” means nothing if the presidency and its extension in the military/national security apparatus aren’t checked. The genius of our government and our constitution was never so much in the limiting of the welfare state or the limiting of the federal government, but rather in the checks and balances between the different branches of government. Far more vital is our protection of those checks and balances than in some artificial “limiting” of the welfare state.
Unlike ED I agree with most (though not all) of the President’s framework for detentions, closing Gitmo, trials, and so forth. [Text of Obama’s speech here].
Still in the end it doesn’t really matter. Or at least only matters until the point at which (in 2012 or 2016) the current President is no longer President. The next guy/gal to inherit the office can simply undo everything Obama has done and if s/he wants re-do everything Bush has done. Or something even worse. [Imagine a President Palin on detention/torture policies…shudder shudder]. And that is even giving the President the benefit of the doubt that he will (basically) follow his own policy, that his actions match his words (a fairly big if to be sure).
Even then it still doesn’t matter because, and here I’m mounting my hobby horse on the soapbox, this is the job of Congress. This is not the Executive’s job however much I may appreciate Obama’s change of policy. You know it’s bad when Antonin Scalia–Scalia!!!–calls out Congress for not doing it’s job on protection of civil liberties.
However much I find myself in agreement with Obama’s basic instincts on all this (and again in large measure I do) his actions continue to embed the poisonous precedent that the determination of policy on this issue is subject to the whim of The Executive–each succeeding Executive that is. It is not permanent enough and invests far too much power in one individual.
We need a (yes I’m going to say it) bipartisan consensus legal framework set by Congress that will cover over the rule of both parties in the Executive (and Congress for that matter) throughout this era of geopolitics. Something like the containment policy of Keenan that stuck through both Republican and Democratic administrations.
Congress legislating an overarching framework for GWOT or “overseas contingency operations” (or whatever you call it) is the only way to begin to tamp down the Imperial Executive–even a good-natured one is still an imperial one. Though weirdly an imperial one with no power beyond its termed period of office. A time-limited Imperium I suppose.
Drafting such legislation will be basically impossible given A)the fecklessness of Congress as well as B)the stupidity of the Cable News punditeriat who gift us with deep intellectual thought experiments (that Einstein would undoubtedly be proud of) like how if Khalid Sheik Mohammed were sent to Pensacola al-Qaeda might bomb it. I mean think of it, AQ might even send Br. K a text message first to give him a heads up about the coming jail-break—KSM, come 4 u 2nite…lol OBL :>
Until that day, we will continue with this inane (and ultimately destructive) dog and pony show of The Executive trying something and perhaps eventually getting shut down by the Supreme Court. The Supreme Court can check the Executive but not tell the President what to do instead. Because as the conservatives are always telling me judges can’t legislate from the brench. Legislating is the job of the aptly name legislators. As the cliche says it takes three legs for the stool to stand. Right now the only stool in this equation is the horse s–t passing for actual debate & governance on a crucial political issue.
Fantastic, Chris. This is sort of what I was getting at in my I, Claudius piece. It’s not so much Obama that I worry over, but whoever comes next. Then again, we need a strong executive to get us out of this mess we’re in right? Then we can carve back some of those powers – unless of course some other crisis should come about – but honestly, what’s the likelihood of that?Report
his actions continue to embed the poisonous precedent that the determination of policy on this issue is subject to the whim of The Executive–each succeeding Executive that is. It is not permanent enough and invests far too much power in one individual.
We need a (yes I’m going to say it) bipartisan consensus legal framework set by Congress that will cover over the rule of both parties in the Executive (and Congress for that matter) throughout this era of geopolitics.
Unlike I’m drastically misreading it, this speech called on Congress to pass some laws helping Obama deal with that difficult “Fifth Category.” The President will always continue to ask, and press, the Congress to do the things he wants it to. That’s how the system was set up. So yeah, it really is all about what the Congress does.
The big difference between Obama and Bush in this case is that Obama is asking Congress in effect to tell him what to do with purportedly dangerous but unconvictable detainees, though he’ll certainly have some thoughts about it. But he can’t dictate them. Bush, on the other hand, simply did what he wanted, bypassing, at least initially until public awareness caught up to him somewhat, all reference to the legislature or the judiciary.
So yeah, step up Congress!Report
Blech. “Unlike” = unless.Report
And as to Bush’s actions, I think our system simply is structurally inalterably vulnerable to a president who gets it into his head that he can do whatever he wants with all the people with guns he has immediately at his command as a result of his designation in the constitution as commander-in-chief of the military. There is nothing the Congress can do about an executive run amok in the short term. The standard response in the national security arena is that funding can be cut off. But can you cut off funding for arbitrary detention? Torture? Those things were already against the law. The president simply has the power to do them, up until the point where he can’t find people to follow the orders or he is impeached and removed.
However emboldened the Congress becomes as a result of witnessing Bush autocratic machinations, or at our urging, or for any other reason, I believe the maximal limitations that we are likely to see them place on the executive are not rightly described as greater than marginal, and certainly nothing that changes the amount of day-to-day control over the coercive actions of the government retained by the president that we would not remain essentially helpless against a president who chooses to act arbitrarily, lawlessly, or in bad faith when it comes to the use of coercion and/or force at home or abroad.
The president has such de facto power over the preponderance of concentrated force in the country that absent fundamental structural changes to our system we will remain dependent on his willing compliance with laws restricting his use of said power. That is why the question of the character of the people we put in that office should be of such concern to us every four years, and why I blanch when people dismiss character considerations in presidential candidates in favor of policy preferences.Report
Michael,
Your point about an executive unable to be checked is definitely worth some thought. Although at different points Congress and/or SCOTUS has been able to rein in an Executive. Sometimes (usually?) post facto….e.g. after Watergate. If you can’t necessarily stop the current Executive by holding them to account, by having well written laws, and burying that Exec in the media-sphere, then you make it next to impossible for the next slate of candidates not to have to follow. They will likely then create their own issues. Two steps forward, one step back is still one step forward.Report