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I Like to Call It The Constitution…


About this little thing I like to call the Constitution, Mary gives us all a reminder:

For wiretaps – a judge has ruled the program is UNCONSTITUIONAL. Not just a violation of FISA – a violation of the Constitution.

Congress can’t legislate away the Constitution.

That they try to do that is not just contemptible for their own oaths of office – it shows the same “Bush league” concept of putting other people on the line for their lapse of duty. A judge has already ruled, appeals will go up, but what happens with an Agency that is being ordered – via Executive Order and Congressional legislation – to violate the Consitution?

We’ve been there. Kilbourn v. Thompson, 103 US 168. Congress orders that a man be taken into custody for contempt and the Sergeant at Arms, (among others) of the House of Representatives follows through on that order. And is later found guilty of false imprisonment.

The members of the House who initiated the Order were held protected by the Speech and Debate Clause for ordering the detention, on the floor, but that did not shield anyone who followed through on their order.

Not only that, but for the privileges and immunities sought by everyone involved in Executive and Legislative branch criminal activity, this quote/admonishment:

If we could suppose the members of these bodies so far to forget their high functions and the noble instrument under which they act as to imitate the Long Parliament in the execution of the Chief Magistrate of the nation, or to follow the example of the French Assembly in assuming the function of a court for capital punishment, we are not prepared to say that such an utter perversion of their powers to a criminal purpose would be screened from punishment by the constitutional provision for freedom of debate

It’s a little something to be kept in mind. “Following orders” is not a defense. Reliance on tainted memoranda prepared for a President and not for those who will be enacting his orders – is not a defense. And reliance on immunities and classification rights — very iffy when crimes are involved.

Congress is being completely feckless to put people in this position.

Most days, it is a joy to read through our comments. But this morning, it truly is an embarassment of riches.

Take, for example, this gem from Peterr:

Dems need to plainly tell the truth about what we believe:

We believe that the Geneva Convention works. We do not believe in torture.

We believe in accountability and the rule of law. We do not believe in secret prisons or warrantless wiretaps, outside the scrutiny of the courts.

We believe that our morality is not dependent upon the morality of others. We do not believe in giving up our moral stature in times of war.

We believe that no one is above the law – not the president, not the CIA, not the Justice Department, not the Congress, not the courts, not corporations, not unions, not lobbyists.

We believe that no one is beneath the law – not the poor, not the non-English speakers, not the immigrant (legal or not), not the ill, not the outcasts of our society.

We believe that the military and the officers of the intelligence communuity are safer with the Geneva Conventions in place. We do not believe in cutting and running from the protections of Geneva.

Most of all, we believe in three branches of government that hold each other accountable as they do the people’s business.

We do not believe in King George. Not in 1776, and not in 2006. (emphasis mine)

I may have to fax this around to a few offices today.

And there are these thoughts from Prof which I found particularly on point, as usual:

Christy was careful to use the term unilateral executive, not unitary executive. I suggest that we do the same.

The Executive is, indeed, mostly unitary. 99% of all agencies and departments (Department of Energy, EPA, Forest Service) work under the control of the President, not independently. Only a tiny number of specialized independent agencies and commissions exist. The unitary executive theory contends that even those should not exist, although it’s only a constitutional theory. However, the Bush Administration has pressed for something much worse, while using the term “unitary” for what they are trying to do.

What Bush and his crowd are trying to do goes beyond the issue of administering laws and whether this should be done by independent agencies and commissions or by departments that are accountable to the President.

They want to take power away from the Congress and the courts — that is, from the other constitutional branches of government.

They are amassing unilateral power — unchecked by other branches, no checks and balances.

(They also execute unilateralism in foreign policy, acting with little or no respect even for our long-time allies, never mind the rest of the world on which they seem happy to trample.)

Why should we use the words that the Bush folks, John Yoo, and others use to try to fit their extreme views within terminology that has an acceptable constitutional pedigree — unitary?

We should use our own terms, and the right one here for what they are attempting is unilateral executive. Let’s not let them frame this debate.

As for the Schechter Poultry decision, it has not been good law in the US for 70 years. The Supreme Court effectively abandoned the “non-delegation doctrine” in subsequent cases such as Yakus v. United States (1944). Anyway, Schechter was about whether Congress could give powers to the Executive Branch. Yes, it can. The unconstitutionalty of signing statements is not an instance of Congress delegating the power, however. It is about the President arrogating power to himself.

The correct precedent for challenging Presidential power-grabs — the unilateral executive — is Youngstown.  (emphasis mine)

Prof is correct — I did choose the "Unilateral Executive" terminology expressly because that is what the Bush Administration and their cronies in Congress are attempting to establish. And, as Dr. Bong correctly pointed out in the comments, Glenn caught some wingnut intellectual inconsistencies on this issue. Ooops. Someone get out the self-serving, power-hungry version of the flip-flops.

Here’s something for everyone to read.  I like to call it the Constitution.  Perhaps someone could send a link to this handy document on which our nation’s laws are based to people who ought to have read it — you know, such as the President, the members of Congress, and whatever other idiots are trying to pretend that it no longer exists if it gets in the way of unilateral power grabs.

Had enough?  I know I sure have.

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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