Use vs. Abuse (of power)
Under our Constitution there are various acts a President may take which are “unreviewable.” For example, you may have heard — over and over again — that the USE of the Pardon Power is unreviewable. This is correct. However, many folks don’t know what the term “unreviewable” actually means. Like so many things in law, a word you think you know may not mean what you think it means.
Unreviewable simply means you cannot challenge it in court. Now there can be several reasons why you cannot challenge something in court: you may not have standing to sue, as seems to be the situation in the recent NSA spying case, wherein the court found that the plaintiffs could not show that the had personally suffered any harm from the secret program because the evidence they needed to show harm was, well secret, and so they could not present any evidence to show they had standing. Whew!
Or, as in the lead up cases to Roe v. Wade where the court repeatedly found that cases which took more than 9 months to get to SCOTUS would not present a “case in controversy” by the time it reached SCOTUS, because the plaintiff, the woman bringing suit, would no longer be pregnant and therefor would no longer need an abortion. You just can’t make this stuff up.
Then there is that category of cases that are unreviewable because the Constitution says so, like use of the Pardon Power. So, no matter how aggrieved Team Fitz might feel, no matter who may have standing, no matter whether or not there is a an actual case in controversy–no trip to the courthouse for judicial review of the use of the Pardon Power.
OK, are we all clear on that?
However, could someone PLEASE EXPLAIN TO ME how we go from “unreviewable in court” to “nothing can be done about it”?
Abuse of power by the President, no matter what the source of that power (ie, statute, Constitution, common law) is ALWAYS subject to oversight by Congress. Such abuse can be curbed or remediated by various means available to the Legislative Branch, including : legislation, power of the purse and, yes, Impeachment by the House and Trial by the Senate, or even Amendment to the Constitution.
In order to determine whether an abuse of power has occurred and fashion an appropriate remedy, curb or check; it is necessary for Congress to investigate. Rule one in any investigation is to follow the facts and law wherever they may lead you and never pre-determine the outcome.
Oversight by Congress acting in its Constitutional role in the system of checks and balances established by the Framers is every bit as much a part of Congress’ role as is passing legislation. In the long run, of the two tasks, oversight may be the more important.
For those who believe in less government, a gridlocked Congress unable to pass legislation might even seem like a good thing. But to any patriot, to anyone who believes in the rule of law, to anyone who believes in the genius of the Constitution and who takes the words of the Framers seriously, oversight and acting as a counterweight to Executive excess is the essence of our three-branch system.
Look, as a practical matter, the Republicans have made it clear that they will not let the Democrats achieve their legislative agenda and that they intend to gridlock the Senate. I read the newspapers, and the Republicans are not being shy about making their intentions known.
Since we aren’t going to do any meaningful lawmaking (though I whole heartedly support the notion that Harry Reid should DO HIS DAMN JOB and force the Republicans to actually make good on their filibuster threats), shouldn’t we at least get some productivity out of Congress in the form of some MEANINGFUL oversight?
I’m with constitutional and international lawyer, Bruce Fein, who served as associate deputy attorney general under President Ronald Reagan and was a member of the ABA Task Force on presidential signing statements. As he pointed out in a recent edition of Bill Moyer’s Journal; “Impeachment is not a constitutional crisis; it is the cure for a constitutional crisis.”
Dear Congress: Get off your ass. Stop worrying about legislation that the republicans will never let you get a cloture on, and DO YOUR JOB. Get thee to some oversight!