Author: hankkalet

More on the theme of Saturday’s post — the Bush administration’s power grab and its theory of a unitary executive.

Charlie Savage in The Boston Globe talks to constitutional scholars about the theoretical unpinnings of the Bush docrine and misue of the historical record by Vice President Dick Cheney and others to justify their approach.

To make his case for these broadened powers, Bush and his administration have fallen back on a familiar strategy: pointing to the Constitution and looking to the founders as a guide to its meaning. This “originalist” approach has been a hallmark of the Bush White House, informing everything from its taste in judges to its opposition to abortion. Relying on a tried and true method of divining the original intent of the Founding Fathers-reading the Federalist Papers, the essays written in 1787 and 1788 by three of the founders to explain the meaning of the Constitution-the administration asserts that it is using executive power as the founders intended.

Yet scholars from across the political spectrum question the historical cases Bush and Vice President Dick Cheney have made. In an effort to find backing for their view of presidential power, these scholars argue, the administration has quoted selectively, taken passages out of context, and simply ignored what many constitutional scholars say is the Federalist Paper that most squarely addresses the president’s wartime powers: Federalist 69.

The scholars say defenders of the unitary executive theory have relied on selective evidence to press their view, misreading Federalist 70 — the scholars say it was meant to explain “explain why the founders decided to put just one president atop the executive branch instead of a council. The essay says nothing about limiting the power of Congress to pass laws regulating how the executive branch carries out its responsibilities for protecting national security-a power the Constitution gives Congress in Article I.”

But Federal 69 is key, the scholars say”

Alexander Hamilton, wrote Federalist 69 in 1788, as the nation was debating whether to ratify the Constitution. At the time, many Americans feared that the proposed Constitution might concentrate too much power in the president. Having just fought a war to rid themselves of the British king, they did not want to end up with a home-grown dictator.

The Constitution called for the American president, like the British king, to oversee the nation’s military. But in Federalist 69, Hamilton explained that the American commander in chief’s powers would be subject to strong checks and balances, including submission to regulation by laws passed by Congress. Hamilton describes the commander in chief as “nothing more” than the “first general” in the military hierarchy. The commander in chief’s powers are “much inferior” to a king because all the power to declare war and to create and regulate armies is given instead to Congress, he explained.

Some state governors, Hamilton noted, had greater security powers as head of their state militias than the president would. “It may well be a question whether (the constitutions) of New Hampshire and Massachusetts, in particular, do not … confer larger powers upon their respective governors than could be claimed by a president of the United States.”

There are scholars — generally affiliated in some way with the president or vice president — who read the Federalist Papers differently, but they seem to be in the minority, with many conservatives who embrace the doctrine of originalism (or attempting to divine the original intent of the founders) questioning the administration’s reading.

The South Brunswick Post, The Cranbury Press

In the current political atmosphere, poisoned by a harsh partisanship that reduces every question and criticism to one of political party and electoral advantage, the danger to the constitutional form of government we have come to rely on has been underdiscussed.

Yes, during the confirmation hearings of John Roberts and particularly Sam Alito, there was some vague discussion of the theory of the unitary executive — basically, a theory that attempts to place the presidency above the other two branches of government, expanding its commander-in-chief powers beyond the war sphere — but that has been it.

The question of executive branch power, however, is one that has far-reaching implications, ones that go well beyond the dangerous powers that the current president has claimed for himself.

As Elizabeth Drew points out in The New York Review of Books, the president has claimed for himself an array of powers — the right to disregard Congressional intent, to ignore laws, to minimize judicial oversight, etc. — in its actions regarding wiretapping and data mining, in the signing statements it attaches to new legislation, in its arguments concerning “detainees” at Guantanamo and its disregard for legally ratified treaties.

The dangers are known to those on both sides of the partisan divide:

People with very disparate political views, such as Grover Norquist and Dianne Feinstein, worry about the long-term implications of Bush’s power grab. Norquist said, “These are all the powers that you don’t want Hillary Clinton to have.” Feinstein says, “I think it’s very dangerous because other presidents will come along and this sets a precedent for them.” Therefore, she says, “it’s very important that Congress grapple with and make decisions about what our policies should be on torture, rendition, detainees, and wiretapping lest Bush’s claimed right to set the policies, or his policies themselves, become a precedent for future presidents.”

But there have been few real challenges. That’s why she says:

For the first time in more than thirty years, and to a greater extent than even then, our constitutional form of government is in jeopardy.

The South Brunswick Post, The Cranbury Press

Check out today’s edition from The Cranbury Press for stories on:

• A soil cleanup in Cranbury
• A new Cranbury bus deal
• A local bands show
• The county considering Monroe’s open space list
• The Jamesburg Civic Association
• GMB students moving on to high school

Get the paper for more details.

The South Brunswick Post, The Cranbury Press

There is reality and then there is the words spoken by the president. His triumphant announcement yesterday about the death of Abu Musab al-Zarqawi echoed triumphant announcements of the past: “mission accomplished” and his words following the capture of Saddam Hussein.

The reality is far darker, as The New York Times points out:

But as Americans discovered earlier, after Saddam Hussein’s two sons were killed and the Iraqi dictator himself was arrested, it will take far more than the elimination of a handful of iconic leaders to stem the tide of the Iraqi insurgency and reverse the country’s alarming slide into civil war.

It will take, most of all, the consolidation of an effective Iraqi government of national unity that can win the loyalty of the overwhelming majority of Iraq’s Shiites, Kurds and Sunni Arabs by respecting their religious and ethnic diversity, protecting their personal security and assuring them the essentials of modern life. These include, at a minimum, reliable electricity, decent hospitals and schools, and a functioning economy that generates adequate employment.

Perhaps the paper is correct in saying that some small steps are being taken — “with the parliamentary confirmation of Prime Minister Nuri Kamal al-Maliki’s remaining cabinet members” and the hopes that they “will now take on the critical and daunting job of reforming Iraq’s unreliable national army and out-of-control police forces.”

But, as we watch Iraq on the precipice of civil war, we need to remember that the reality is not an end to the insurgency with Zarqawi’s death, but an uncertain future that is likely to be filled with considerable bloodshed.

The South Brunswick Post, The Cranbury Press

This week’s second Dispatches, from The Cranbury Press, focuses on a plan from three state legislators who are looking for state workers to give something back as part of the state-budget fix.

Here is the latest from The Star-Ledger on it.

The South Brunswick Post, The Cranbury Press