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The Imperial Presidency


The Bush Administration has taken the "imperial presidency" to new heights. Arthur Schlesinger’s analysis of this growth of Presidential powers over the years was ground-breaking work in the early 1970s, but he had nothing to work with like we have seen the in the last five years, following the attacks on 9/11.

The argument that Presidential power is superior to that of the other branches is nothing new in some circles. In fact, it’s an argument that was made again recently in The Weekly Standard by conservative scholar Harvey Mansfield, who argues that the war powers and others written into the Constitution essentially make the President above the law — because, Mansfield argues, the Preznit IS the law during a time of war. (Never mind that there is no conceivable end to what the Preznit calls the war on terror. Guess that will end for Republicans only when a Democrat is elected to the WH.)

That this is so far from what the Framers envisioned for this nation is not even discussed or acknowledged. Funny how such pesky things as facts and written words get in the way when you are trying to legitimize an unconstitutional power grab.

Or that conservatives were jumping up and down and screaming about the Imperial Presidency and the rule of law throughout the Clinton Administration, like this fine example from the Cato Institute. "Hypocrisy hotline…I need a six pack."

Glenn Greenwald has some preliminary thoughts on this here:

So, to recap: The President is "larger" than the law. The "rule of law is not enough to run a Government." We must remember that a monarchy is "effective" and therefore, in times of "war" (like now), we must embrace "one-man rule." In sum, in emergencies like the one we have now and will have for the indefinite future, the "law does not apply."

Discussion of these theories is more important with the Alito hearings set to begin tomorrow. The Court’s composition can be fundamentally changed should Alito be voted into the Associate Justiceship for which he has been nominated. With Roberts already installed as Chief Justice, the insertion of another member of the court as far right as Alito’s views are could have devastating long-term consequences for the nation — and for the balance of powers.

One article which makes this very clear is the latest from Noah Feldman in today’s NYTimes Sunday Magazine. The entire article details Feldman’s theories on separation of powers and the abdication of responsibility by the Republican Congress over the last few years (a theme that bears repeating ad naseum as the 2006 elections approach), and is certainly worth a read. Here’s a sample:

The real reason, then, to hope that Congress will resurrect its lost powers is that the balance of powers remains, as the framers thought, the best guarantor of liberty in a constitutional government. The basic fact of presidential power is now irreversible. No one denies that a strong executive is needed to respond to the threat of terrorism. But this just means that the presidency requires greater vigilance than ever to prevent violations of liberty.

No court alone can do the job of protecting liberty from the exercise of executive power. For that most important of tasks, the people’s elected representatives need to be actively involved. When we let them abdicate this role, the violations start to multiply, and we get the secret surveillance and the classified renditions and the unnamed torture that we all recognize as un-American. Our Constitution has changed enormously over the last two centuries, and it is sure to change much more in the future. Just how it changes, though, is up to us.

Powerful stuff, and worth not only a read, but some serious thought and discussion.

The question of the Imperial Bush Presidency and its long-term consequences is being raised more and more — both around the blogs and by the traditional media. For examples, take a peek here, here, here, and here.

One of the latest examples of Presidential arrogance was the signing statement that Bush inserted (via War and Piece) as he was signing the bill containing the McCain anti-torture amendment — you know, the one that Bush publicly said he supported, while he added caveats and exempted himself from the law applying to him when he signed it into law. Another example of Bush putting himself above the law — the arrogance of King George.

(Graphics via OMB Watch.)

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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com