My post yesterday requested that Bush defenders explain how there can be any limits at all on his power under the theories of Executive Power which they are advocating to argue that Bush had the right to violate Congressional law. Both ReddHedd at Firedoglake and Peter Daou at The Huffington Post joined in that request.
In response, there are two posts from Leon at Red State.org and two posts from Jeff Goldstein at Protein Wisdom, one of which largely relied on what Jeff reverently calls "a long and meticulously argued post" from John Hinderaker at Powerline. Leon also alerted me by e-mail to the issuance yesterday of a Memorandum from the Department of Justice (.pdf) which sets forth the Administration’s legal defense of its behavior.
This is my reply to all of that:
(1) There is not a single bit of authority in any of this for the absurd and dangerous proposition that the President has the right to violate a criminal law passed by Congress. Period. The Administration is trotting out lawyers to make legalistic arguments designed to cloud this extremely clear issue, but none of that can change the fact that Bush defenders are arguing that he has the right to engage in conduct which Congress made it a crime to engage in, and there is nothing in the law which gives a President that right. To the contrary, as one would expect, it has been repeatedly made clear that under our system of Government, the President does not possess the authoritarian right to engage in behavior which Congress expressly prohibits under the law.
Bush defenders are primarily relying upon cases which said that the Executive has authority inherently under the Constitution to order warrant-less eavesdropping on Americans. But that is not the issue, and they have to know that. The issue is not whether the President has this authority to eavesdrop without a warrant but whether it is legal for him to do so in the face of a Congressional law which makes it a crime to engage in such conduct. And none of the authorities they cite conclude that the President has such a royal power. Not one.
Marty Lederman has a superb and crystal clear post on precisely this issue. Even if one assumes to be true the dubious proposition that the President possesses inherent constitutional authority to order warrant-less surveillance on American citizens, that does not mean that it is legal for him to do so in violation of a criminal statute enacted by Congress. But that is what Bush did here, and there is just nothing which even arguably gives that behavior the color of legality. That’s because we live under the rule of law where not even Presidents are bestowed with the right to engage in conduct which Congressional criminal law expressly prohibits.
READ ON
In response, there are two posts from Leon at Red State.org and two posts from Jeff Goldstein at Protein Wisdom, one of which largely relied on what Jeff reverently calls "a long and meticulously argued post" from John Hinderaker at Powerline. Leon also alerted me by e-mail to the issuance yesterday of a Memorandum from the Department of Justice (.pdf) which sets forth the Administration’s legal defense of its behavior.
This is my reply to all of that:
(1) There is not a single bit of authority in any of this for the absurd and dangerous proposition that the President has the right to violate a criminal law passed by Congress. Period. The Administration is trotting out lawyers to make legalistic arguments designed to cloud this extremely clear issue, but none of that can change the fact that Bush defenders are arguing that he has the right to engage in conduct which Congress made it a crime to engage in, and there is nothing in the law which gives a President that right. To the contrary, as one would expect, it has been repeatedly made clear that under our system of Government, the President does not possess the authoritarian right to engage in behavior which Congress expressly prohibits under the law.
Bush defenders are primarily relying upon cases which said that the Executive has authority inherently under the Constitution to order warrant-less eavesdropping on Americans. But that is not the issue, and they have to know that. The issue is not whether the President has this authority to eavesdrop without a warrant but whether it is legal for him to do so in the face of a Congressional law which makes it a crime to engage in such conduct. And none of the authorities they cite conclude that the President has such a royal power. Not one.
Marty Lederman has a superb and crystal clear post on precisely this issue. Even if one assumes to be true the dubious proposition that the President possesses inherent constitutional authority to order warrant-less surveillance on American citizens, that does not mean that it is legal for him to do so in violation of a criminal statute enacted by Congress. But that is what Bush did here, and there is just nothing which even arguably gives that behavior the color of legality. That’s because we live under the rule of law where not even Presidents are bestowed with the right to engage in conduct which Congressional criminal law expressly prohibits.
READ ON
So here is one for the wing-nuts to consider:
How are you going to like all oft these broad, sweeping executive powers when the Nanny-staters are back in power?
Diebold is going down in flames. It won't be as easy to rig election after this 5 year nightmare.
No comments:
Post a Comment