South by Southwest: Checks and balances

Tuesday, July 25, 2006

Checks and balances

Out of balance?

Because I have a supply of blank checks does not mean I necessarily have anything to spend. If I wrote several checks with a zero account balance, there would be serious consequences for me. I would be "drawing on empty;" I might go to jail. The current Republican administration has been drawing on a zero balance for some time and the consequences have been horrendous: the treasure has a huge fiscal deficit, our current president has lost his trustworthiness with a majority of the public, and theU.S. credibility as a world leader has been largely squandered. To whit, portions of the Middle East are now in flames.

Checks & balances under attack - This July 13 New York Times story on the presidential powers situation summarizes it pretty well. To quote,

President Bush has been forced to negotiate with Congress over a subject that until recently he has insisted was nonnegotiable: his powers as commander in chief in prosecuting what he often calls “a new kind of war.”
In one case, his hand was forced by the Supreme Court, which ruled two weeks ago that Mr. Bush’s creation of “military tribunals” to handle terror suspects from Al Qaeda and the Taliban was a violation of both law and the Geneva Conventions. In another, his hand was forced by Senate Republicans, who told Mr. Bush and Vice President Dick Cheney, in a series of tense confrontations, that they had overstepped their bounds by sidestepping a secret court Congress had established to issue warrants for domestic wiretapping in sensitive national security cases.
The developments amount to a tactical retreat for a White House that has aggressively asserted that new kinds of wars call for a restoration of presidential powers of a kind unseen since Abraham Lincoln suspended the right of habeas corpus during the Civil War — a step that Congress later approved, retroactively.

Back into balance? The ABA appointed a bipartisan task force to make a recommendation to the membership about whether our system of constitutional checks and balances is in jeopardy. The task force (American Bar Association Task Force on Presidential Signing Statements and the Separation of Powers Doctrine) announced their findings Monday: Congress and the courts must weigh in regarding the current president's many signing statements. For details see the ABA site page that includes links at the bottom to the Task Force report (pdf) and to a complete roster of task force members. Following is a quote friom the 7/21 story by US News,

. . . Monday, the task force will recommend that Congress pass legislation providing for some sort of judicial review of the signing statements. Some task force members want to simply give Congress the right to sue over the signing statements; other task force members will not characterize what sort of judicial review might ultimately emerge. . . The resolution cannot become official aba policy without approval from the group's legislative body, scheduled to meet in Hawaii next month.

No blank checks - Supreme Court Justice O'Connor stated in one of those opinions that "the president does not have a blank check" in time of war. One of my favorite thinkers, Steve Clemons, posted an excellent piece on Feb. 26 about this president's so-called "unitary" presidency theory. He says there is a, "Democratic Imperative: Bush's "Unitary Executive" Notion Must be Obliterated". To quote this excellent post a bit further (Steve's link to Blumenthal),

We try instead to characterize honestly the power grab that the Executive Branch has been engaged in since 9/11, but we also recognize that the administration is not monolithically united behind the adminstration's most outrageous positions -- and that the loyal minority has not done its part. On both the Democratic side and among Republican moderates, those who believe in checks-and-balances have done little to compellingly challenge this White House.
I want change in policy -- not shrillness for its own sake -- but this excellent summary of the vital debate about Executive Branch power by Sidney Blumenthal has hardened my resolve to do whatever I can to delegitimate and defang Cheney's operation.
I know Bush is the big boss, but Bush's tactic has been to allow two -- and perhaps three -- contending groups inside his White House to wage war with each other while he tilts in the final analysis towards the group that seems to win out in these private gladiator contests. Most often, the winning tag-team has been Cheney-Rumsfeld over all others.