Category Archives: Separation Of Powers

Bush vs. Congress: Let The Confrontation Begin

Following on the heals of the House of Representatives, the Senate has approved, by a narrow margin, an Iraq War spending bill that sets a deadline of roughly one year from today by which American forces must be out of Iraq:

WASHINGTON — The Democratic-controlled Senate ignored a veto threat and voted Thursday for a bill requiring President Bush to start withdrawing combat troops from Iraq within four months, dealing a sharp rebuke to a wartime commander in chief.

In a mostly party line 51-47 vote, the Senate signed off on a bill providing $122 billion to pay for the wars in Iraq and Afghanistan. It also orders Bush to begin withdrawing troops within 120 days of passage while setting a nonbinding goal of ending combat operations by March 31, 2008.

As with the House vote the margin in the Senate is far short of what would be needed to override a Presidential veto, and it is unlikely that any of the 46 Republicans plus Joe Lieberman who voted against the bill would cross over and vote to override and expected veto. The bill is dead in the water.

I generally support the idea that the United States needs to start thinking about an exit strategy in Iraq, and that we need to do so sooner rather than later. I also think that the war itself, and the way it’s been handled since virtually day one, have been a colossal series of mistakes. But the way the Senate has gone about doing this is totally unconstitutional. First of all, Congress simply doesn’t have the authority to order the President to follow a specific military strategy. They authorized the use of military force and the President is Commander in Chief. As CiC, he has the authority to decide military strategy. Not only that, he is the head of a co-equal branch of government and is not subservient to Congress.

There really is only one way for Congress to exercise authority over America’s policy in Iraq. They would have to exercise the power of the purse and vote to defund the war. By all indications, the Democrats on the Hill have neither the political courage nor the support among their own members for such a move. Additionally, polling seems to indicate that while the public wants American troops to come home, they would not support cutting off funding to those troops as long as they are there.

Both practically and politically, the opponents of the war are in a very difficult position unless they can convince the President to change his mind. Given what we’ve seen from George W. Bush over the past seven years, that seems highly unlikely.

Chuck Hagel Is Talking Impeachment Again

Earlier this month, I wrote about statements by Nebraska Republican Senator Chuck Hagel that seemed to suggest that he thought President could be impeached because of his Iraq policy. Yesterday, he appeared on ABC’s This Week and made the speculation even more explicit:

WASHINGTON — Some lawmakers who complain that President Bush is flouting Congress and the public with his Iraq policies are considering impeachment an option, a Republican senator said Sunday.

Sen. Chuck Hagel of Nebraska, a member of the Foreign Relations Committee and a frequent critic of the war, stopped short of calling for Bush’s impeachment.

But he made clear that some lawmakers viewed that as an option should Bush choose to push ahead despite public sentiment against the war.

“Any president who says ‘I don’t care’ or ‘I will not respond to what the people of this country are saying about Iraq or anything else’ or ‘I don’t care what the Congress does, I am going to proceed’ — if a president really believes that, then there are … ways to deal with that,” Hagel said on ABC’s “This Week.”

Yes, Senator, there are ways to deal with it, but impeachment isn’t one of them.

Let’s go over this again, the impeachment power, set forth in Article II, Section 4 is pretty clear

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Hagel, however, is not talking about impeaching Bush for high crimes, misdemenaors, treason, or bribery, he is asserting the idea that the Congress has the right to seek to remove the President from office over a policy disagreement.

Part of the reason for this is fairly clear. Even if the Democrats Iraq War plan, which Hagel apparently supports, is able to garner enough votes to stop a filibuster and make it through the Senate, it is clear that the President will veto it. There is not enough support for the plan in either the House or the Senate to override the veto. Therefore, we’ll have stalemate and the President will be free to pursue his current Iraq policy unless Congress takes the step of cutting off funding for the war, which I submit they do not have the political courage to even try to do.

Like it or not, George Bush is President through January 20, 2009 and the Constitution gives him the authority as Commander in Chief to carry out the Iraq War as he sees fit.

Hagel’s comments also make it clear why the Founders limited the impeachment power the way that they did. If Congress had the authority to attempt to remove the President, Vice-President, or Justice of the Supreme Court at will, then separation of powers would become a meaningless concept, and the President would become a mere minister serving at the pleasure of whichever party has majority control of the Legislative Branch. That is what the Parlimentary system, which existed in England at the time the Constitution was written, is all about. Had the Founders wanted to mimic it, they very could have. The fact that they didn’t leads to the conclusion that they wanted co-equal branches of government for a reason.

Now, I am not a supporter of the President’s policy in Iraq. But he is the President and has the authority to carry it out. If Congress wishes to change that policy, then they can use the power of the purse to do so. If they don’t have the political courage to do that, they need to just be quiet until the Bush Administration is over.

H/T: Captain’s Quarters

The U.S. Attorneys Fight: It’s Gonna Go Nuclear

According to The Politico, both Republicans and Democrats see advantage to be gained the coming confrontation over the U.S. Attorney firings:

The White House and the Democrats who run Congress both see political advantage in the ongoing fight for public testimony by presidential advisers about the controversial firing of eight U.S. attorneys. And both have settled on what they believe will be durable messages for a potentially protracted confrontation, although one that is likely to stop short of a historic conflagration at the U.S. Supreme Court.

The Republican mantra on Capitol Hill can be summed up this way: “Democrats can’t legislate, so they want to investigate.” The gist of the Democratic talking points is: “Republicans want to hide from the truth.”

(…)

For Democrats, the brouhaha is a chance to revel in their new power, an ability to spotlight an embarrassing issue for an administration obsessed with secrecy.

So, it’s just like a lot of Washington “scandals.” Everyone agrees that nothing illegal happened, but both sides are willing to fight because they see advantage to it.

One Republican official said the president’s supporters are thrilled to see him on the offensive. “Our base is excited again,” the official said. “We’re back on our toes and off our heels. Everybody agrees we handled it wrong, but so what? So you’re going to make this a constitutional crisis?”

At the moment, that would appear to be the case.

Congress Subpoenas Rove And Sets Up A Constitutional Showdown

The House Judiciary Committee issued subpoenas today for five top aides to President Bush in connection with the developing investigation into the firing of eight U.S. Attorneys:

A House panel today authorized the issuance of subpoenas for top White House and Justice Department aides as it investigates the firing of eight U.S. attorneys last year.

The House Judiciary Committee’s subcommittee on commercial and administrative law passed by voice vote a motion giving the committee chairman, Rep. John Conyers Jr. (D-Mich.), the power to issue subpoenas for five current and former officials, as well as for “unredacted documents” from the White House and Justice Department. Among the five are Karl Rove, the deputy White House chief of staff, and Harriet E. Miers, the former White House counsel.

In authorizing the subpoena power over the objections of Republican members, the subcommittee rejected an offer by President Bush yesterday to allow the officials to testify under strict conditions. The White House is demanding limits on the kinds of questions they would answer, opposes having them testify under oath and does not want their testimony to be recorded or transcribed.

Absent an agreement between the White House and Congress, this one act turns what I’ve got to admit is a confusing “scandal” over the firing of a few U.S. attorneys into a Constitutional showdown.  President Bush made clear yesterday that the White House would assert executive privilege as a bar to any effort to force Presidential aides to testify under oath.

And, quite honestly, they would have a pretty good argument in their favor if they did.

Presidents have claimed executive privilege, if not by name, since the time of the Jefferson Administration, but it’s most famous example is the U.S. v. Nixon case, where the Supreme Court ruled that President Nixon had to turn over the tapes of Oval Office conversations sought by the Watergate Special Prosecutor. At the same time, though, the Court did recognize that some form of privilege does exist:

The Court recognized “the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties.” It noted that “[h]uman experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process.”

What executive privilege really is, though, is a result of the Seperation of Powers doctrine. As a the head of a co-equal branch of government, the argument goes, the President has the right to have confidential meetings with his advisors and not fear that those conversations will be divulged to Congress, or to a prosecutor, using their subpoena power. How far that privilege goes is the answer that Courts have wrestled with since the early 19th Century.

If nothing else, this exceedlingly confusing story could provide the nation with some clarity on this issue.

John Shadegg’s Enumerated Powers Act

Congressman John Shadegg, who I wrote about here and here during last year’s race to replace Dick Armey as House Majority Leacder, has proposed an interesting new bill called the Enumerated Powers Act:

Yesterday, Congressman John Shadegg reintroduced the Enumerated Powers Act, a bill that highlights the importance of the Tenth Amendment and forces a continual reexamination of the role of the federal government.

“The Enumerated Powers Act would require Members of Congress to include an explicit statement of Constitutional authority into each bill that is introduced. It would hold Congress accountable for its actions,” said Shadegg.

The Tenth Amendment states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

“According to the Tenth Amendment, the national government cannot expand its legislative authority into areas reserved to the States or the people,” said Shadegg. “It is a well-known fact that the size and scope of the federal government has exploded since the New Deal. Congress continues to operate without Constitutional restraint, creating costly and ineffective programs and blatantly ignoring the principles of federalism.”

As a symbolic reminder of where Congressional authority originates from and what its limits are, the bill is a good idea. In reality, though, it really wouldn’t amount to much of anything. As James Joyner points out, given the manner in which Congressional authority has evolved beyond the limits of the Constitution over the past 220 years, a bill like Shadegg’s would do nothing to stop the expansion of government:

Unfortunately, we so long ago moved away from governing according to the Constitution that a return to the 1789 model is inconceivable. Further, the Framers themselves left a gapping loophole in the concept of enumerated powers-only governance in the very section where said powers are enumerated, Article I, Section 8: “To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.” So, really, all Congress would need to do is claim that any bill it signed was “necessary and proper” and that it related to those “other powers.”

While I would argue that the Founders never intended the necessary and proper clause to be the catch-all phrase that it has become, that is how it has been interpreted for two centuries now. It’s going to take alot more than something like the Enumerated Powers Act to change the way things are today.

More information about Shadegg’s bill can be found on Thomas.

H/T: Marshall Manson

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