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Saturday, December 17, 2005

Steve Gilliard Says 

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The notion that one of the three branches of our Government can claim power unchecked by the other two branches is precisely what the Founders sought, first and foremost, to preclude. And the fear that a U.S. President would attempt to seize power unchecked by the law or by the other branches – i.e., that the Executive would seize the powers of the British King – was the driving force behind the clear and numerous constitutional limitations placed on Executive power. It is these very limitations which the Bush Administration is claiming that it has the power to disregard because the need for enhanced national security in time of war vests the President with unchecked power.

But that theory of the Executive unconstrained by law is completely repulsive to the founding principles of the country, as well as to the promises made by the Founders in order to extract consent from a monarchy-fearing public to the creation of executive power vested in a single individual. The notion that all of that can be just whimsically tossed aside whenever the nation experiences external threats is as contrary to the country’s founding principles as it is dangerous.

It cannot be said that the Founders were unaware of the potential for national emergencies and external threats. They engaged in a war with the British which was at least as much of an existential threat to the Republic as those posed by 9/11 and related threats of Islamic extremism. Notwithstanding those threats, the Founders, in creating an Executive branch, sought first and foremost to ensure that the President could never wield unchecked powers which would exist above and separate from Congressionally enacted laws.

Among recent Republican Administrations, this theory of the unchecked President is not new. Digby recalls Richard Nixon's endorsement of it, and the theory came to life in the Iran-Contra scandal, where the Reagan Administration unilaterally deemed it necessary to U.S. national security to arm the Nicaraguan contras and then asserted for itself the power to circumvent the law enacted by the Congress which prohibited exactly that.

But the situation we have now is far more egregious, and far more dangerous, because the Administration is not even bothering to pretend now (as the Reagan Administration at least did) that the Executive acts undertaken really did adhere to Congressional intent, or alternatively, to the extent that such acts violated Congressional mandates, the acts were simply the by-product of overzealous and rogue officials who broke the law without the knowledge or approval of President Reagan.

The Bush Administration’s position now is almost the opposite of that posture, in that the Administration is expressly claiming that the President does have the right to violate laws of Congress because his executive power is absolute and thus cannot be restricted by anything. And rather than applying this theory of unchecked executive power to a single case (as the Reagan Administration did in Iran-contra), the Bush Administration has arrogated unto itself this monarchical power as a general proposition, applicable to each and every issue which can be said to relate, however generally, to this undeclared "war" against terrorism.

This view of the Presidency – which now exists not just in odious theory but in real, live, breathing form vested in George Bush – is precisely what the monarchy-fearing Founders insisted should never occur and, with the enactment of the U.S. Constitution, would never occur.

This absolute power claimed and enthusiastically exercised by George Bush violates not just specific Constitutional limitations, but the core principles of the Constitution: that we are a nation of laws not men; that each branch shall be "co-equal" to the others and checked and limited by the other two; and that the people shall retain ultimate power by vesting in them the right to enact supreme laws through the Congress which shall bind all other citizens, including the President.
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