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Failures of Courage, Not Law

danps's picture

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Garrett Epps' "The Founders’ Great Mistake" in the latest Atlantic looks at the expansion of the executive branch and proposes some remedies. Articles like his tend to make me feel conflicted because part of me is drawn towards Big Idea discussions - theoretical explorations of how things should be, regardless of practical limitations. And another part of me loathes it as endless, indulgent, droning abstraction; nothing more than an extended exercise in mental masturbation. But since we've had two presidents this week it might not be excessive to spend a post on the nature of the office itself.

One of Epps' points is that Articles I and II of the Constitution are the source of many problems. Article I empowers Congress, Article II the president. He notes, though, that while Congress "was limited to its enumerated powers, the executive could do literally anything that the Constitution did not expressly forbid." His remedy:

Article II should include a specific and limited set of presidential powers....It should be made clear, for example, that the president’s powers as commander in chief do not crowd out the power of Congress to start—and stop—armed conflict. Likewise, the duty to “take care that the laws be faithfully executed” needs to be clarified: it is not the power to decide which laws the president wants to follow, or to rewrite new statutes in “signing statements” after Congress has passed them;

I would call this music to George Bush's ears. Article I, Section 8 takes care of the first part of his recommendation, giving Congress the powers:

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;

That seems about as cut-and-dried a limitation on the president as you could ask for. Similarly, no clarification is needed on the requirement to faithfully execute the law - signing statements are not provided for and a failure to implement laws as passed by Congress is simply illegal. Both of Epps' recommendations dignify and legitimize Bush-era stances towards the Constitution. One of them is ambiguity. For all its good-versus-evil, "with us or against us" rhetoric the Bush administration was positively infatuated with muddying fairly simple issues beyond recognition. Congress has the power to declare war, period. What we need is not new language but a new Congress willing to defend its prerogatives. We need legislators determined to not commit our soldiers to battle absent an formal declaration of war, who won't pass an ambiguous "authorization" as a way of ducking responsibility and giving in to presidential bullying.

The same is true of executing laws. If the president won't enforce them or tries to use plainly unsupportable interpretations, the remedy is to haul him into court, not to amend the Constitution. It seems that Epps, and perhaps a lot of other well meaning analysts, are trying to find a way to legislate around the abuses of the Bush years. But such efforts are futile, and in fact counterproductive. The failure of the last eight years is not of laws, but of courage.

Some of his theorizing is more appealing. He notes "the executive branch is a behemoth...responsible to one person, and that one person, as we have seen, is only loosely accountable to the electorate" and recommends dividing it "between two elected officials—a president, and an attorney general who would be voted in during midterm elections." That would require no transfer of power and it almost certainly would have produced a better result for the country than the Ashcroft/Gonzales/Mukasey triumvirate did. Even better, why not move the AG into the legislative branch and formally charge it with the interpretation of laws for the executive branch. If the president is unclear or is considering some novel interpretation of the law shouldn't the branch that passed it in the first place have the final say? (Note that this also eliminates the need for signing statements.)

The behemoth could also be cut down in size. There is no reason agencies like the EPA and SEC should be under executive control. Moving them and others to the legislative branch would better shield us from the effects of a president who subscribes to the theories of plebiscitary democracy and the unitary executive (i.e. authoritarianism lite). In the end, though, what we really need are leaders with spines. It has been our great misfortune to not have them the past eight years, and there is no Constitutional amendment or Backbone Reinforcing Act that can drag them into existence.

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