Friday, January 13, 2006

The Constitutional Crisis

A critical and perhaps unprecedented development took place in the course of the Samuel Alito hearings on Thursday, January 12th. During Senator Feingold’s questions about the power of the president to override statutes during wartime, Judge Alito reiterated more emphatically than ever his repeated implication that in the conflict between a statute enacted by Congress and the Constitution's Article 2 provisions giving the president Commander-in-Chief authority during wartime, the Constitution tends to trump the power of statutes. Alito typically puts this in terms of a hypothetical: like any citizen, the President is obliged, says Alito, to obey the law in this case any statute enacted by Congress except where the law might be unconstitutional.

What this means in real terms is that in the case of the FISA law which the President has in fact repeatedly violated by authorizing the NSA to wiretap U.S. citizens, the President was obliged to obey FISA UNLESS it turns out that the FISA law limiting the President’s right to wiretap is judged by the Supreme Court to be an unconstitutional abridgement of the President’s wartime powers. Since Samuel Alito will more than likely be sitting on the Supreme Court when such a case comes before it, it appears almost certain that the Court would render a judgment in favor of Presidential authority i.e. a President above the law.

An alternative prospect raised by Alito is that the case might not be "judiciable." This would mean that the Court could not render a judgment in such a case. It was this that evoked from Senator Feingold the remarkable statement that the country now appeared to be in a "constitutional crisis" which even the Supreme Court may not be able to resolve, and which he found "very troubling."

What’s really troubling is that the crisis Feingold referred to is already upon us. Especially if Samuel Alito is confirmed, and if he runs true to the form he has demonstrated in his hearings, the nation will find itself ruled by a chief executive who can disobey any law written by Congress simply by appealing to his war powers (the war on terror is, by definition, unending), ignoring the law and allowing the conflict to come to the Supreme Court. The Court, packed with the President’s men, can rule that the president’s power as outlined in Article 2 of the Constitution overrides the power of the Congress to make laws controlling that power.

This, in effect, leaves the Congress irrelevant. It shreds the most basic idea of a republic, the balance of powers, whereby each of the three branches acts as a check and balance against any one branch accumulating excessive power. Thus the constitutional crisis Senator Feingold was referring to, and which he found "very troubling."

In truth, the crisis is worse than Senator Feingold acknowledged. For in this situation, the Congress and particularly the Democratic minority in Congress have only a few choices. First, it can roll over and play dead, accepting the fact that it no longer has a decisive role to play in the affairs of the nation. We have already seen the current Congress doing this, a tactic that, in effect, has left the authority to rule in the hands of a dictator called the President.

If Democrats (and conscientious Republicans) in Congress choose not to abdicate in this way, they can take several actions to remedy the situation, and resolve the crisis. Each action will take uncommon courage.

(a) They can reject Samuel Alito, and any subsequent Supreme Court nominee who indicates a similar disposition to kowtow to unitary and unlimited presidential power. They can do this by filibustering the Alito nomination until the President is forced to withdraw it and nominate a more mainstream candidate.

(b) They can attempt to change the Constitution by amendment, altering the language in Article 2 in such a way as to make specific the prohibition against violating the civil rights of Americans at all times, including during wartime. This will eliminate the conflict between the existing Congressional statute (the FISA Act) and the Constitution.

(c) They can initiate actions designed to shut down the Congress itself, refusing to enact laws and budgets to continue the Iraq war and any other war until the President agrees to abide by the legal statutes limiting his powers, specifically the FISA statute.

(d) They can initiate impeachment proceedings designed to remove President Bush from office for high crimes and misdemeanors, in this case, knowingly and consciously violating a specific law the FISA Statue designed to make illegal the wiretapping actions he has publicly admitted to.

The role of an informed citizenry in all of the above remedies is critical. Waiting for the next election will not do here. Every concerned citizen must make plain through direct action letters, phone calls, emails, contributions to impeachment campaigns, participation in demonstrations calling for one or all of the above congressional remedies that he or she will not now, or ever, tolerate a Chief Executive or a government which holds itself unaccountable to and in contempt of the most fundamental laws and principles of this democracy.


Blogger bladerunner said...

Before you rush to the barricades, consider this: your premise is pretty shaky. You claim the President can only refuse to enforce or obey a congressional statute if the Supreme Court has made a ruling that it is unconstitutional. It's a legitimate position to take in an argument but it is not the law.

Going back to the legislative history of the Constitution, during the debate there was one reference to this issue. Delegate James Wilson noted that not only could the Supreme Court invalidate an unconstitutional congressional act(confirmed in marbury v. Madison)but the President could also decline to carry out an act that he believed would violate the Constitution.
The US Supreme Court addressed this issue in the 1926 case of Myers v. US. There Democrat President Wilson refused to comply with what he felt was an unconstitutional law(barring him from removing postmasters). The Supreme Court upheld his authority to refuse to enforce unconstitutional acts.

Presidents Kennedy, Johnson, Carter and Clinton have all taken the position that the President has the power to refuse to enforce an unconstitutional act(it usually involved Congress's penchant for legislative vetoes).

Of course, all exercised this power sparingly because of the larger constitutional issues involved and the spectre that you raise on an Imperial Presidency.
And I felt MUCH more comfortable with Bill Clinton's discretion on this issue then I do Bush's. But the struggle between the Congress and the President has been going on since the birth of the Republic.

I've got an the drama about impeachment---you don't have the votes. Win an election. Democrats other then Bill Clinton haven't been too sucessful at that on the presidential level. Figure out why we're losing, get out of denial, and win. Then we get to pick the Court. And then, I'm sure this site will have blogs bemoaning the Republican's hatchet job on our President's outstanding nominee.

8:56 PM  

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