Thursday, January 12, 2006

Re: Constitutional Coup D' etat

----- Original Message -----

Sent: Saturday, January 07, 2006 12:33 PM
Subject: constitutional coup d'etat

Good series of questions, but following question containing an implicit argument:

(c). What if Congress votes to withdraw it, but the President successfully vetoes the bill withdrawing it and Congress cannot muster the necessary two-thirds in each house to override? Or, what if one house overrides but one-third plus one successfully oppose an override in the other house?

... is not a particularly good one. A statute granting or withdrawing from the president certain powers would be like any other statute, such as an appropriations act: the Constitution states a 2/3rds majority of both Houses is needed to override the president's veto. There is no one-House override. Alito could hit that one out of the park.

Better questions would be ones condensed from the following premise about the Constitution when viewed as an integral whole:

The Constitution is reasonably specific in its grants of powers to the three branches of government; e.g., its empowerment of Congress to regulate captures on land and water plainly gives Congress the power to regulate the holding of prisoners in a war (consistent with the Geneva Convention), regardless of what that jackass Alberto Gonzales says. Any fair reading would so stipulate. Still, the Constitution (which is fairly short as national charters go) must be read as a whole to fully grasp its parts. The founders appreciated "flexibility" no doubt (hence the shortness of the Constitution), but not so much flexibility that the document could nullify itself. Hence, look at the whole Constitution. If the founders would have wanted a president with plenary powers in time of war, they would have inserted a provision (probably in Article II) that turned off congressional powers and judicial powers in time of war. Or they would have added an amendment to the Bill of Rights expressly turning off the Bill of Rights in time of war. But they didn't. Also, Amendments 9 and 10 to the Bill of Rights specifically prohibit loophole-finding by the executive or either of the other two branches. Citizens' rights are expansive; powers of the government are restricted and enumerated.

The next line of defense for the administration (curious given their supposed devotion to strict construction) is that regardless of what the Constitution appears to say, historical precedents and court interpretations have vested the executive with vast de facto grants of war powers. There is some truth in that, but not much. Any legal contract is not voided just because an aggrieved party to the contract is temporarily unable to enforce his contractual rights because of force majeure. Because Congress, or the courts, have chosen not to fully uphold the proper division of powers in the Constitution since 1950 does not give the executive carte blanche; rather, it means that Congress and the Courts have failed in their institutional obligations. In fact, many of the alleged executive powers in time of war have been subsequently reversed. Lincoln's suspension of habeas corpus is sometimes cited by defenders of plenary presidential power.

But the differences between the Civil War and now are gaping: Lincoln faced a state of civil insurrection by 11 states, and in many border areas (and all captured rebel territory) the civil courts were not functioning. Notwithstanding that, after the Civil War, the Supreme Court in ex parte Milligan reversed some of Lincoln's more extravagant claims of power. Likewise, Truman's seizure of the steel mills was declared unconstitutional in the Youngstown Sheet & Tube decision. And Nixon's assertion that in national security matters the president is not bound by the Constitution (similar to the assertion about Bush's power to order torture in the John Yoo memo) was rejected by the Supreme Court in a Fourth Amendment case in 1972.

And while the Supreme Court did not explicitly reject the constitutionality of FDR's internment of Japanese-Americans in 1942, Congress passed (and President Reagan signed, and the Supreme Court regarded as constitutional, as no aggrieved interest brought suit) a law to compensate the Japanese-American internees -- an official governmental admission that internment was a wrongful act. Perhaps had George W. Bush been president at the time of the compensation bill's passage, John Yoo or David S. Addington would have persuaded him not to sign it.

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