Wednesday, May 7, 2008

Executive or Imperial Branch?

[From Consortium News.

The reason why the Congress and Judicial branch are not resisting Bush and Cheney's obviously illegal and unconstitutional power grab is because Bush and Cheney are simply the logical extension, and spearhead of, the general direction of the executive branch over the last several decades.

This process was interrupted and reversed for a time during the 1960s and early 1970s and came to a head in the Watergate scandal, but this scandal only reached the prominence that it did because there was an atmosphere of political insurgency society-wide and challenge from without - an international situation of upheaval and revolution.

Cheney, in particular, and those around him, are continuing the process begun in earnest under Reagan, to seize back and push further an executive branch not beholden to anyone or anything. They do so not because they are power hungry dictators, although they are that, but principally because they personify the forces of capital in the sole remaining imperialist superpower with no national rivals to contend with.

They are like the predator that has no other predators to control its growth and they are feasting on the planet. That is why they are bound by no scruples or principles that the rest of us take for granted, such as being restrained from employing torture and murder by "quaint" ideas such as humanity, decency and justice.

It's critical to note that the 2008 presidential candidates are not standing up against this and when the next president takes office, they will, as Bill Clinton did after taking over after W's dad, largely adopt the executive privileges that their predecessors used such as signing statements.

While there may be, if a Democrat gets elected and actually takes office, some modifications in a fashion similar to the difference between Bill Clinton and George H.W. Bush, the overall framework and direction of things are such that any next Democratic president will be to the right in many respects to where George H.W. Bush was in the 1980s. - DL]

By Ivan Eland
May 7, 2008

Editor’s Note: Lost amid the U.S. news media’s focus on important matters, like Rev. Jeremiah Wright’s latest outburst, has been any interest in trivial questions, such as how George W. Bush has trampled the U.S. Constitution, stampeded the nation into a disastrous war and walked all over Congress.

In this guest essay, the Independent Institute’s Ivan Eland takes a stab at getting the American people to pay some attention to the future of the Republic:

More memos recently have surfaced that were written early in the Bush administration by John C. Yoo from the Justice Department's Office of Legal Counsel -- the man who gave us the administration's horrifyingly narrow definition of torture.

As difficult as it is to believe, the recently released memos are even scarier than the original torture memo.

Yoo boldly asserts that the president's power during wartime is nearly unlimited. For example, he argues that Congress has no right to pass laws governing the interrogations of enemy combatants and the commander in chief can ignore such laws if passed, and can, without constraint, seize oceangoing ships.

The memos also argue that military operations in the United States against terrorists are not subject to the Fourth Amendment requirement for search warrants or the Fifth Amendment requirement for due process.

This broad interpretation of executive power and the president's commander-in-chief role would make the nation's founders jump out of their graves.

Purposefully, the Constitutional Convention enumerated the large number of Congress's powers in Article I, and gave most powers related to defense and foreign affairs to the people's branch.

In particular, the war power was given to Congress. The chief executive, whose powers were enumerated in the much more brief Article II, was given the commander-in-chief role, but this was intended narrowly, only as commander of U.S. troops on the battlefield.

Instead of declaring war, which has fallen out of fashion, the Congress, after 9/11, passed a resolution authorizing the president to go after al-Qaeda overseas but deliberately omitted domestic activities from that authorization.

Democrats and Republicans alike declared that they were not endorsing a broad expansion of the president's authority as commander-in-chief.

An important example from the nation's infancy shows how narrowly the founders regarded the president's role as commander in chief.

During the Quasi-War with France in the last years of the 1700s, Congress authorized President John Adams to seize armed ships sailing to French ports. Adams exceeded the congressional authorization by ordering the seizure of vessels sailing to or from French ports.

The Supreme Court, in the case Little v. Barreme, ruled that Adams had exceeded the authority Congress had delegated to him. So much for Bush's supposed intrinsic authority to seize all oceangoing ships without congressional authorization.

In 1952, President Truman, the first imperial president, seized the steel mills under his alleged "inherent power" as commander in chief -- supposedly to prevent paralysis of the national economy and using the rationale that soldiers in the Korean War needed weapons and ammunition.

By a wide margin, in the case Youngstown Sheet & Tube Co. v. Sawyer, the Supreme Court struck down Truman's executive order to seize the mills because it had no statutory or constitutional basis. Essentially, the court ruled that the president may be commander in chief of the armed forces but not the country.

Yoo's assertion that Congress has no right to pass laws that impinge on the president's claim to a broad interpretation of his role as commander in chief violates the core of the constitutional system of checks and balances, and for which the United States regularly criticizes despots in foreign countries.

Finally, the Fourth Amendment (requiring warrants for any search) and the Fifth Amendment (the right to due legal process) contain no exceptions for wartime. In fact, in a republic -- where the rule of law should be king -- crises and wartime are exactly when people's rights are most likely to be endangered and when safeguards are especially needed.

Even more tragic and dangerous than the quagmires of Iraq and Afghanistan have been President Bush's usurping of power from the other two branches of government and the creation of the "hyperimperial" presidency.

Ivan Eland is Director of the Center on Peace & Liberty at The Independent Institute. Dr. Eland has spent 15 years working for Congress on national security issues, including stints as an investigator for the House Foreign Affairs Committee and Principal Defense Analyst at the Congressional Budget Office. His books include The Empire Has No Clothes: U.S. Foreign Policy Exposed, and Putting “Defense” Back into U.S. Defense Policy.

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