IAPS, for short.
Constitutional law. That's what it's about. Who's got it legitimately and who doesn't. In a system ruled by law, or whatever substitutes for law, such as religion or morality, it's legitimacy that counts. In the bad old days when might made right, there was no arguing against power. Who grabbed it was considered legitimate enough, and anyone who objected either kept his mouth shut or tried to mount a coup, a counter-revolution, a rebellion, an insurgency, or whatever you'd care to call the effort to unseat the king and replace him with yourself.
If the king were regarded as the legitimate ruler, then he was entitled to keep the army and collect the taxes. If not legitimate, trouble.
In our system, of law, we lay out the lines of power in our plan, the Constitution. We guard the limits of the governmental units carefully, protecting against usurpations. Pres. Bush is accused by many of usurping more than his fair share of power. He replies, "Did not, did not, did not." So we have to judge.
Butting up against power are rights. Rights are meaningless unless there's someone around, usually a judge, with guts enough to stand up to power. We are fortunate in this country to have a federal judging system protected by a system of legalized expections that insulate the judges from the political winds (by lifetime appointments on good behavior, meaning no running for re election). The worst we can usually say about a federal judge is that s/he votes his deep-seated political predisposition, which is pretty bad, when you think about it. But, what other way do we have than lifetime appointments? When we vote for judges, what judge wants to rule against his biggest donor, what with an election looming right around the corner, every time?
Pres. Bush has been grabbing a lot of power since gaining office in a judicial power of extreme note. The Republicans on the Court decided Bush-Gore in 2000. In return, Bush appointed Roberts and Alito as chief and associate justices, respectively, completing the cycle, when O'Connor retired and Rehnquist died.
Bush's power play rests on the assertion that each branch has its inherent power, untouchable by the other two branches. Four if you count VP Dick Cheney's recent claim.
If Bush has the inherent power to torture prisoners (something he denies wanting to do, except in exceptional cases and then only by the CIA, preferably offshore, away from the prying eyes of the press who tell us things we'd prefer not knowing, forcing us, then, to deal with them, to our chagrin) then Congress cannot tell him to stop, any more than it can stop a war that has become unpopular even among some erstwhile supporters.
Nor can Congress subpoena the president's aides, the ones accused of conspiring to replace professional Department of Justice prosecutors with political party hack, to testify? Or can the president's political aides, and the president, continue to cover up the scandal?
Bush is stonewalling Congress, running out the clock on his term-limited second term, which has less than a year-and-a-half to go.
Can Congress override his stalling? By having the president's team-matesheld in contempt?
There are two kinds of contempt, statutory and congressional. The president's Department of Justice enforces the first and only Congress can enforce the second. The president won't enforce the statutory kind (he controls the DOJ, after all) and Congress may, according to a report, be reluctant to exercise its own power, for reasons unclear to me.
The NYT comments on the power element of this controversy, below:
Editorial
Power Without Limits
The Bush administration, which has been pushing presidential power to new extremes, is reportedly developing an even more dangerous new theory of executive privilege. It says that if Congress holds White House officials in contempt for withholding important evidence in the United States attorney scandal, the Justice Department simply will not pursue the charges. This stance tears at the fabric of the Constitution and upends the rule of law.
Congress has a constitutional right to investigate the purge of nine United States attorneys last year. And there is no doubt that the investigation has unearthed improprieties: several administration officials have already admitted illegal or improper actions involving the politicization of the country’s chief law enforcement agency.
But the administration has been extraordinarily defiant toward Congress’s legitimate requests for information. The low point came recently when Harriet Miers, the former White House counsel, refused even to show up in response to a Congressional subpoena. Some of the questions she would have been asked might have been protected by executive privilege, but others no doubt would not have been. Ms. Miers had no right to ignore the entire proceeding.
The next question is how Congress will enforce its right to obtain information, and it is on that point that the administration is said to have made its latest disturbing claim. If Congress holds White House officials in contempt, the next step should be that the United States attorney for the District of Columbia brings the matter to a grand jury. But according to a Washington Post report, the administration is saying that its claim of executive privilege means that the United States attorney would be ordered not to go forward with the case.
There is no legal basis for this obstructionism. The Supreme Court has made clear that executive privilege is not simply what the president claims it to be. It must be evaluated case by case by a court, balancing the need for the information against the president’s interest in keeping his decision-making process private. Mark Rozell, an expert on executive privilege at George Mason University, calls the administration’s stance “almost Nixonian in breadth,” because of its assertion that “the mere utterance of the phrase executive privilege” means that “no other branch has recourse.”
The White House’s extreme position could lead to a constitutional crisis. If the executive branch refused to follow the law, Congress could use its own inherent contempt powers, in which it would level the charges itself and hold a trial. The much more reasonable route for everyone would be to proceed through the courts.
This showdown between a Democratic Congress and a Republican president may look partisan, but it should not. In a year and a half, there could be a Democratic president, and such extreme claims of executive power would be just as disturbing if that chief executive made them.
Congress should use all of the tools at its disposal to pursue its investigations. It is not only a matter of getting to the bottom of some possibly serious government misconduct. It is about preserving the checks and balances that are a vital part of American democracy.
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