Tuesday, January 4, 2011

Hypocrisy About Executive Power

Remember all that hyperventilation from Democrats about the tyrannical expansion of executive power during the Bush presidency.  I can still see the veins on Patrick Leahy’s ample forehead throbbing at the very thought that Bush would have the audacity to try and cut Congress and the courts out of the administration of justice to unlawful combatants. And remember Democratic exasperation at Bush's improvident use of signing statements?  Senator Obama, you’ll recall, wasn't shy about adding his voice to the chorus of outraged Democrats.

How times have changed. Get a load of this Charles Savage piece in today’s New York Times:
“President Obama’s legal advisers, confronting the prospect of new [congressional] restrictions on the transfer of Guantánamo detainees, are debating whether to recommend that he issue a signing statement asserting that his executive powers would allow him to bypass the restrictions, according to several officials.

“If Mr. Obama were to issue such a statement, it could represent a more aggressive use of unilateral executive powers than what he exerted in his first two years in office. The issue has arisen as the Republican Party takes control of the House.”
Granted, this may well be just a trial balloon floated by the White House. But if it ends up being anything more than that, it will be as brazen an assertion of executive power as anything coming out of the White House during Bush’s second term.  It flies in the face of rhetoric that was de rigueur in liberal circles (and liberally used by Senator Obama) just a couple of years ago.  Worse, it sounds like a challenge to recent Supreme Court decisions upholding Congress’s role in decisions respecting the treatment of unlawful combatants. Is it unduly cynical of me to expect this report to be greeted by the (perhaps slightly embarrassed) silence of congressional Democrats and to expect Republicans to start sounding like jealous custodians of congressional prerogatives?

You don’t need me to remind you that politicians are incorrigible hypocrites. Yet this is an instance where hypocrisy has its uses. We too often think of our constitutional system only as something laid out on 18th-century parchment. So we reduce most of our quarrels about the separation of powers in general, and the boundaries of executive power in particular, to arguments about how to interpret crucial constitutional provisions. Since conservative Republicans and liberal Democrats read the constitution differently, we naturally presume that there are distinctively conservative and liberal takes on the boundaries between the executive and legislative branches of government.

But that’s a mistake. Ours is a “living constitution” in a sense that has little to do with the interpretation of legal texts. The founders didn’t rely solely, or even primarily, on “parchment barriers” to keep the various branches of government in their proper place. They thought that the best way keep each branch of the government in check was to oblige office-holders in the different branches of government to assert countervailing institutional interests. “Ambition,” as Madison put it, “must be made to counteract ambition.”

By virtue of occupying the office of the presidency, Bush and Obama each incurred a constitutional duty and a compelling political incentive to promote roughly the same institutional ambitions. The same goes for Nancy Pelosi and John Boehner by virtue of being successive Speakers of the House. If there’s anything disingenuous about their facility in adapting their pious pronouncements about the constitutional separation of powers to changing political circumstances it's pretending that there ever was a distinctively conservative or liberal view of such matters in the first place.  You can call that "hypocrisy" if you like, but it's an integral feature of our constitutional system.

1 comment:

Dave said...

"You can call that "hypocrisy" if you like..."

Thank you. I will!