James Sensenbrenner asked the Justice Department a simple question:
“Some have questioned whether President Carter’s signature on FISA in 1978, together with his signing statement, was an explicit renunciation of any claim to inherent Executive authority under Article II of the Constitution to conduct warrantless surveillance.
a. Does Congress have the authority to renounce any inherent presidential
authority?
b. Is there any case law that supports or proscribes Congress’ ability to renounce inherent presidential authority?
DOJ responded:
The Constitution is the supreme law of the land, and any statutes inconsistent with the Constitution must yield. The basic principle of our system of government means that no President, merely by assenting to a piece of legislation, can diminish the scope of the President’s constitutional power…
Just as one President may not, through signing legislation, eliminate the Executive Branch’s inherent constitutional powers, Congress may not renounce inherent presidential authority. The Constitution grants the President the inherent power to protect the nation from foreign attack, and Congress may not impede the President’s ability to perform his constitutional duty.“
Glenn Greenwald breaks it down for us.
Can that be any clearer for you – Congressmen, Senators,journalists? The President is bestowed by the Constitution with the unlimited and un-limitable power to do anything that he believes is necessary to “protect the nation.” Thus, even if Congress passes laws which seek to limit that power in any way, and even if the President agrees to those restrictions and signs that bill into law, he still retains the power to violate it whenever he wants.
In Federalist no.47, James Madison said:
The accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny.
Federalist no.47 seeks to reassure skeptics that the Constitution, as written (and not yet ratified), is sufficient to prevent the accumulation of too much power into any one branch of government. How Madison must be rolling over in his grave to see the arguments that the Department of Justice is making today.
It’s ironic that Madison was initially (pre-ratification) most concerned that the legislative branch of government would become a tyrant and disempower the executive. But post-ratification, Madison quickly changed his mind and determined that Congress needed expanded powers to combat the power of the Executive in matters of foreign policy.
There can be no question what Madison would think of the President’s plan to ‘rid our world of tyranny’. He would declare Bush to be the first tyrant on the list.
“Of all the enemies of true liberty, war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few. In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors and emoluments is multiplied; and all the means of seducing the minds, are added to those of subduing the force, of the people. The same malignant aspect in republicanism may be traced in the inequality of fortunes, and the opportunities of fraud, growing out of a state of war, and in the degeneracy of manner and of morals, engendered in both. No nation can preserve its freedom in the midst of continual warfare.”
We have a tyrant in our midst. The Founding Fathers did their best to construct a system of government that could root out tyrants. But it all depends on the willingness of Congress to exert their powers of impeachment. It depends on the willingness of the courts to defend the prerogatives of the legislative branch. We are in a Constitutional Crisis. Watching the politicians on Capitol Hill and the pundits on television, you might not know it. But our liberty is at stake. The war in Iraq is now an unsightly sideshow. The real war is here at home. It is the People versus our government.
Anyone that has these priorities mixed up is not a true patriot, and it is laughable when they question the patriotism of people that understand the stakes.
n/t
should that be, “Et tu, Booté”?
but them Freedom loving Kurds are sure making liberated Kurdistan a shining beacon of Democracy American style:
“In the north of the country, meanwhile, the Kurdish writer Kamal Karim was handed an 18-month sentence for articles on a Kurdish Web site that accused Masoud Barazani, one of the region’s top leaders, of corruption.”
(AP)
At least we can still question Dear Leader, but I’m not sure we can do so and still be secure in our persons, houses, papers, and effects.
I still can’t find my remote control.
Regardless of Madison, this issue is not at all clear or adjudicated, and has been the subject of much heated debate on many occasions. The assertion of the power of the Executive in its role as Commander-in-Chief of all the armed forces is well-established, and indeed was maintained on several occasions by President Clinton, when he explicitly asserted his authority (on the advice of his legal counsel) to override the attempts of Congressional limitations on such authority.
Specifically, he asserted his rights to disregard Congressional attempts to:
In both of these cases, President Clinton stated explicitly that he did not intend to obey these strictures placed on the Executive, because they infringed on the powers vested to the Executive as Commander-in-Chief of all the armed forces.
This is thus NOT a new or unheard-of issue, but it’s surely true that it’s made more urgent because of the apparent abdication of responsibility by the Congress and the acquiescence of both the public and the Judiciary.
Indeed, every president since 1974 has ignored the provisions of the War Powers Act (Public Law 93-148) passed by Congress mandating that the Executive repeatedly go back to Congress for ‘reauthorizing’ the Executive’s authority.
In short, if something needs to be ‘fixed’ here, then it will require the concerted involvement of Congress (hah), the Judiciary (hah, again) and the public (debatable — sorry if I appear pessimistic about the numbers).
In the past, most of these issues have been dealt with with ‘understandings’, and agreements between the Congress and the Executive about the management of these issues. On the whole, it appears that the Judiciary was assumed to be a relatively impartial participant in this debate. It now appears — with the total politicization and polarization of all discourse and debate — that all parties are now in play.
The historical “gentlemen’s agreements” thus controlling these impulses now appear to have broken down entirely, in favor of naked grabs for power and influence and the concerted effort by those currently in power to stifle all dissent or disagreement, by any means necessary.
It’s thus apparently a whole new ball game — and not a pleasant one — and the stakes are nothing less than the future of the Republic.
If we still have one, that is.
Apparently, Empire is what is currently desired, and we are well on the way.
Well, there is a good reason that Madison feared the tyranny of the legislative branch. Since they can withhold funding, as well as impeach, convict, and remove an executive from office, they have the ultimate power to dictate.
If Congress wanted to insist that the Executive obey the War Powers Act or FISA they could prevail.
The courts can rule anyway they want, but they can’t force Congress to pay for war or pay for any program that is not in line with their desires.
BooMan:
Indeed and there is good reason for this fear.
But the actual limitations of the powers of both the Executive and the Legislative branches of our government (let’s leave out the Lawyers for right now) have yet to be fully plumbed and explored, and both parties in the past have tacitly agreed to certain accommodations which have obviated the necessity of going to the Courts for adjudication of these issues.
My point was that these tacit agreements seem to have broken down and that what reigns now is strictly a situation where one party feels it has total and unilateral ability to impose their will on the other; in addition, due to the recent Supreme Court appointments, the ‘party in power’ also feels emboldened in that they anticipate favorable verdicts should any cases actually make it to the Supreme Court.
This should really be seen as a ‘call to arms’ to elect Democratic Senators and Representatives at all costs.
Provided, that is, that they are not “wolves in sheep’s clothing” or otherwise faux-liberals.
Bush is obviously and literally a tyrant. In recently signing the extension of the Patriot Act, he added a signing statement stating that he did not intend to comply with the law’s requirement that he periodically report to Congress regarding FBI actions under the law.
And this got no press at all.
NONE!
WHAT WILL IT TAKE?
What will it take before the majority of Americans pay attention to this fundamental and overwhelming problem?!
I always liked Churchill’s quip that democracy is the worst form of government except for all the others, and the old legal maxim that the jury is the worst way to find facts except for all the others. I always liked the idea that there was intrinsic goodness and nobility in the “American people” that would rise to any challenge.
I don’t believe that any more. I have become extremely pessimistic. Gosh I hope I’m wrong.
I believe you are wrong. The intrinsic values of the”American people” are still what makes us the American people, the real patriots. When it comes to it, “We the people” will rise to the challenge. This country has faced worse, but never at the hands of our “dear leaders”.
Nothing personal about believing you`re wrong.
Thanks for covering this ground. I did a piece on this about the time the NSA spy story broke called Smoke, Mirrors, and War Powers that breaks down what the constitution actually says about powers and goes a bit into the history of how presidents have encroached on the Constitution.
The machinations of John Yoo and Alberto Gonzales were a major arm of the overall neocon power grab strategy. The exent to which these hoods have hijacked the government and the country is numbing.