Cato the Blunder?
I've just completed the 22.5-page Power Surge: The Constitutional Record of George W. Bush (31-page PDF), authored by Gene Healy and Timothy Lynch of the libertarian CATO Institute.
The executive summary should be compelling to everyone, regardless of political orientation. It begins:The CATO authors make the charge that a sitting president is violating his oath of office and the Constitution he has sworn to protect on multiple occasions, and these are charges not to be dismissed lightly. I had to read this document. After reading it all and taking it in, I sit here with mixed emotions. The authors make a strong case in each instance, and the way they frame the issues, there seems little practical doubt as to whether or not the President is guilty of some of the things that Healy and Lynch charge. But is little doubt the same as no doubt, and how do we judge? Example #1 was the infamous McCain-Feingold bill (Bipartisan Campaign Reform Act, or BCRA). Bush did sign McCain-Feingold into law after objecting to it on Constitutional grounds. It which seems to be a direct assault upon the most important core principle of the First Amendment, free political speech. But Healy and Lynch then make this comment on page 5 (as the page is numbered, may vary in your PDF viewer):
In recent judicial confirmation battles, President Bush has repeatedly—and correctly—stressed fidelity to the Constitution as the key qualification for service as a judge. It is also the key qualification for service as the nation's chief executive. On January 20, 2005, for the second time, Mr. Bush took the presidential oath of office set out in the Constitution, swearing to "preserve, protect and defend the Constitution of the United States." With five years of the Bush administration behind us, we have more than enough evidence to make an assessment about the president's commitment to our fundamental legal charter
Unfortunately, far from defending the Constitution, President Bush has repeatedly sought to strip out the limits the document places on federal power. In its official legal briefs and public actions, the Bush administration has advanced a view of federal power that is astonishingly broad, a view that includesPresident Bush's constitutional vision is, in short, sharply at odds with the text, history, and structure of our Constitution, which authorizes a government of limited powers.
- a federal government empowered to regulate core political speech—and restrict it greatly when it counts the most: in the days before a federal election;
- a president who cannot be restrained, through validly enacted statutes, from pursuing any tactic he believes to be effective in the war on terror;
- a president who has the inherent constitutional authority to designate American citizens suspected of terrorist activity as "enemy combatants," strip them of any constitutional protection, and lock them up without charges for the duration of the war on terror— in other words, perhaps forever; and
- a federal government with the power to supervise virtually every aspect of American life, from kindergarten, to marriage, to the grave.
To me, this seems perplexing. If the President thinks a congressional bill is unconstitutional and signs it into law thinking it is unconstitutional, should he face impeachment when the Supreme Court upholds all the major provisions of the law? If he should then be impeached, what of the members of Congress who voted to pass the bill in the first place? Do they not violate their oaths as well? And what do we do with a Supreme Court that upholds what many lay people consider a clear violation of the very essence of the First Amendment? Should we toss them all, executive, legislative, and judicial, and appoint President Antonin Scalia for filing a dissent that upheld the Constitution? From McCain-Feingold, to "free speech" zones, the so-called "torture memos," and questions about apparently expanding powers to arrest and seize property, Healy and Lynch take aim at the President but find themselves hitting other targets with virtually every shot. For example:
…when the president abdicates his constitutional responsibility, as President Bush did when he signed a bill he knew to be unconstitutional, there is no guarantee that the courts will act to uphold theirs. In fact, the Supreme Court did not accept President Bush's invitation to strike down the offending portions of the BCRA. In 2003, in McConnell v. Federal Election Commission, the court upheld all the major provisions of the BCRA.
- The "free speech" zones are enforced by the Secret Service or local police at Secret Service behest, and the authors cannot even provide evidence that Bush ha any part in these decisions;
- the "torture memos" debate is carried forward upon opinions put forth by the Justice Department and the Department of Defense, as well as the White House;
- the "war powers" argument put forth by the authors would seem to implicate almost every president back to Truman (with the apparent exception of Bush 41) for using police actions instead of congressional declarations as their method to go to war, while at the same time noting the current President Bush seized upon Congressional use of force still in effect from the 1991 Persian Gulf war, and got a congressional use of force authorization of his own as well;
- The FBI and other federal law enforcement agencies are indicted along with the President under a charge of overly expanded arrest and seizure powers;
- an alleged expansion of surveillance powers would condemn the NSA as well (note: I think the authors are fundamentally wrong in their assertions made in this section, and they should admit this is blind speculation on their part based upon unsupportable assumptions, which they don't);
- and on and on…
Posted by: Confederate Yankee at 02:25 PM
Comments
1
CATO does some good work....this unfortunately doesn't qualify. But you can see the basic libertarian arguement throughout...no government is better than any government... and they will use the Constitution to attempt to win both sides of the argument.
Posted by: Sluggo_f16 at May 02, 2006 04:50 PM (VE5vJ)
2
Typepad is down so I'm not blogging tonight, but at the heart of the matter is a sort of ideological puritanism which ultimately trips up all ideologues - from Conservative, to liberal to Libertarian. Should a man with a banner be allowed close to the President as a right if it means the Secret Service might miss a man with a pistol. It was hard to kill someone at 15 feet with a pistol in Jefferson's day, not so much today.
If every branch of government were the final arbiter of the Constution, we'd need three of them. You can't address the power of any one without addressing in some manner the power of the others - hence you have a balance of power. Like it or not, McCain Feingold is just and accepted law as it stands today and 2 of three branches agreed. They may well be wrong and it can be changed in the future, even through a new court challenge. But it became and was tested in law in concert, so short of addressing it Constituionally or legislatively, it would be foolish to impeach one branch of government. BUsh could easily claim his view changed after exercising an obligation to the principle of advise and consent.
You could strike down most every amendment with an ideologicaly pure argument, but it wouldn't hold up in Court. And no one on the CATO paper authored the constituion, has ever governed, or sat on the Supreme Court, so far as I know.
If every branch of government were the final arbiter of the Constution, we'd need three of them. You can't address the power of any one without addressing in some manner the power of the others - hence you have a balance of power. Like it or not, McCain Feingold is just and accepted law as it stands today and 2 of three branches agreed. They may well be wrong and it can be changed in the future, even through a new court challenge. But it became and was tested in law in concert, so short of addressing it Constituionally or legislatively, it would be foolish to impeach one branch of government. BUsh could easily claim his view changed after exercising an obligation to the principle of advise and consent.
You could strike down most every amendment with an ideologicaly pure argument, but it wouldn't hold up in Court. And no one on the CATO paper authored the constituion, has ever governed, or sat on the Supreme Court, so far as I know.
Posted by: Dan at May 02, 2006 09:09 PM (7e1m4)
3
Exactly how many americans are being held at Gitmo or elsewhere with no legal representation? I have heard of one incident, but do they cite others? Here is an interesting quote about holding enemy combatants
"GERMAN PRISONERS OF WAR. When the United States went to war in 1941, what to do with enemy prisoners of war was among the last considerations of a country reeling from a Japanese attack and preparing for war in Europe. The nation had never held large numbers of foreign prisoners and was unprepared for the many tasks involved, which included registration, food, clothing, housing, entertainment, and even reeducation. But prepared or not, the country suddenly found itself on the receiving end of massive waves of German and Italian prisoners of war. More than 150,000 men arrived after the surrender of Gen. Erwin Rommel's Afrika Korps in April 1943, followed by an average of 20,000 new POWs a month. From the Normandy invasion in June 1944 through December 30,000 prisoners a month arrived; for the last few months of the war 60,000 were arriving each month. When the war was over, there were 425,000 enemy prisoners in 511 main and branch camps throughout the United States."
http://www.tsha.utexas.edu/handbook/online/articles/GG/qug1.html
Nearly half a million POW some held for years. Do you think they all had lawyers?
"GERMAN PRISONERS OF WAR. When the United States went to war in 1941, what to do with enemy prisoners of war was among the last considerations of a country reeling from a Japanese attack and preparing for war in Europe. The nation had never held large numbers of foreign prisoners and was unprepared for the many tasks involved, which included registration, food, clothing, housing, entertainment, and even reeducation. But prepared or not, the country suddenly found itself on the receiving end of massive waves of German and Italian prisoners of war. More than 150,000 men arrived after the surrender of Gen. Erwin Rommel's Afrika Korps in April 1943, followed by an average of 20,000 new POWs a month. From the Normandy invasion in June 1944 through December 30,000 prisoners a month arrived; for the last few months of the war 60,000 were arriving each month. When the war was over, there were 425,000 enemy prisoners in 511 main and branch camps throughout the United States."
http://www.tsha.utexas.edu/handbook/online/articles/GG/qug1.html
Nearly half a million POW some held for years. Do you think they all had lawyers?
Posted by: Ray Robison at May 02, 2006 10:09 PM (4joLu)
4
This is the one, out of 750 laws, they pick?
Posted by: Fred at May 03, 2006 03:52 AM (xX+1y)
5
Let me say from the beginning that I voted for Bush and with the choices we are presented with would likely vote for him again. Until recently I strongly supported the Republican party. Yet as I read this blog I ask myself if I personally feel free. I have to say no. I can't get on an airplane without surrendering my rights. Of course the argument is that you do not need to fly but in this world you do. The same actions are pervasive all through our culture so this theme is picked up on subways, buses, trains, malls and entering any building. Try going to Washington and seeing your representative or watching a bill debated. Impossible. As a physician I am constantly every minute hasseled by the government. In fact a new industry has been developed to cope with this. Under Bush the government has grown. Taxes have not really come down. So though he and the Republicans do not preach socialism like the Democrats, they are just better at inacting it. Something has to change. We need to quit being so warm and cozy with the Muslims and the illegal immigrants and begin racial profiling and all the other things that would truly help with security and leave the average citizen alone. This can be done. Take airport security, it is a joke. So quit bothering me and take the war to the religion of peace until they change their doctrine. Understand that if you are not a citizen in this country, you do not have the constitutional rights we do. I am sure the lawyers here will argue that fact but if it is not the law of the land it should be. Understand that tortue does work. It should be used in the situations in which people do bad, horrible things and are not under the control of a legitimate government. To sum it up I do not feel free in this country. And no I will not move. Hopefully when everything begins to fall apart, my country (Dixie) will reemerge.
Posted by: David Caskey at May 03, 2006 10:23 AM (6wTpy)
6
I agree with David C. What we need to realize is we live in an Oligarchy.
Posted by: Realist at May 03, 2006 12:03 PM (mQauu)
7
Maybe it is just coincidence but I have seen a lot of people lately making comments who claim to be republicans but their comments don't sound like what I am used to hearing from republicans. Did I miss the "pretend you are a republican to trick them into hating Bush" seminar?
Posted by: Ray Robison at May 03, 2006 01:19 PM (CdK5b)
8
Ray,
If you do not think I am a card carrying Republican then see if Jim McCrery's office can vouch for me. What is the deal? Our party has completely turned its back on the people that support it and hoped for significant change in 1994. It took me awhile, but I have finally gotten to the point that I agree with the liberals that Bush is an idiot. But that aside, my own representatives do not listen. Even when you give them money!! I recently sent a letter of concern to McCrery and Vitter. I received the same form letter as an answer. The people in Washington have completely lost respect for us and the answer may lie in your statement. We will go along with anything they want and not allow any critical analysis of Bush or the other leaders. My point is we are being treated like the enemy and our rights stomped on a regular basis. Lets tell them to stop and get on with the business of reducing the size of our government and taxes and regulation. Look a Makin's blog and see how disgusted she is becoming.
If you do not think I am a card carrying Republican then see if Jim McCrery's office can vouch for me. What is the deal? Our party has completely turned its back on the people that support it and hoped for significant change in 1994. It took me awhile, but I have finally gotten to the point that I agree with the liberals that Bush is an idiot. But that aside, my own representatives do not listen. Even when you give them money!! I recently sent a letter of concern to McCrery and Vitter. I received the same form letter as an answer. The people in Washington have completely lost respect for us and the answer may lie in your statement. We will go along with anything they want and not allow any critical analysis of Bush or the other leaders. My point is we are being treated like the enemy and our rights stomped on a regular basis. Lets tell them to stop and get on with the business of reducing the size of our government and taxes and regulation. Look a Makin's blog and see how disgusted she is becoming.
Posted by: David Caskey at May 03, 2006 02:01 PM (6wTpy)
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