[FoRK] "then that practice becomes a Constitutional power that cannot be infringed upon by the Congress or the Courts"

Stephen Williams sdw at lig.net
Tue Jun 24 22:08:14 PDT 2008

Yikes!  If this is right, then the clock is ticking.  Unless there is a 
way to impeach when not in office.  Maybe they are going to squeeze it 
in to do a lame duck impeachment.


Time for a Grand Inquest into Bush's High Crimes
Robert L. Borosage

Posted June 24, 2008 | 06:45 PM (EST)
Read More: Bush, Bush High Crimes, Bush Impeachment, House Judiciary 
Committee, Impeachment, Pelosi Impeachment, Speaker Nancy Pelosi, 
Youngstown Case, Politics News

One of House Speaker Nancy Pelosi's first acts upon taking the gavel was 
to rule impeachment off the table. She wanted Democrats to focus on 
challenging the president on the war and on kitchen table concerns -- 
from energy to education to health care. With Democrats now enjoying an 
increasing margin in generic polls and looking towards gaining seats in 
both the House and the Senate, the strategy certainly hasn't hurt 

But the constitutional implications are far more disturbing. This was 
dramatized as the Congress debated the FISA reform legislation that will 
provide retroactive immunity to the telecommunications companies for 
warrantless interception of the conversations of Americans -- and by 
implication, retroactive acceptance of the president's authority to 
order such wiretaps.

We have witnessed a staggering abuse of power by this president. Even 
former Bush Justice Department officials now charge President Bush with 
trampling the Constitution. Bush has claimed the prerogative to declare 
an endless war without congressional approval, to designate someone an 
enemy without cause, to proceed to wiretap them without warrant, arrest 
or kidnap them at will, jail them without a hearing, hold them 
indefinitely, interrogate them intensively (read torture), bring them to 
trial outside the US court system. He claims that executive privilege 
exempts his aides -- even the aides of his aides and his vice 
president's aides -- from congressional investigation. He claims the 
right to amend or negate congressional laws with a statement upon 
signing them. And much more.

Even this Supreme Court, stacked with activist right-wing judges 
enamored of executive national security powers, has rebuked the 
president on some of these claims, particularly around the treatment of 
allegedly enemy combatants. But many of Bush's claims will escape 
judicial determination.

And there is the rub. According to the leading case on presidential 
powers, if Bush's extreme assertions of power are not challenged by the 
Congress, they end up not simply creating new law, they could end up 
rewriting the Constitution itself, altering the Constitutional division 
of powers by establishing the president's claims as constitutional 
powers that the Congress or the Courts may not infringe.

The Steel Seizure case -- Youngstown Sheet and Tube v Sawyer, 343 US 579 
(1952), remains the leading case on presidential power. In Youngstown, a 
six member majority of the Court joined in overturning Truman's 
executive order nationalizing the steel plants to end a strike during 
the Korean War. Justice Black wrote the opinion for the Court, but the 
historically influential opinions were penned by Justices Robert H. 
Jackson and Felix Frankfurter, both Democratic appointees. Frankfurter 
laid out the argument for a sort of common law of constitutional amendment:

    Deeply embedded traditional ways of conducting government cannot 
supplant the Constitution or legislation, but they give meaning to the 
words of a text or supply them. It is an inadmissibly narrow conception 
of American constitutional law to confine it to the words of the 
Constitution and to disregard the gloss which life has written upon 
them. In short, a systematic, unbroken, executive practice, long pursued 
to the knowledge of the Congress and never before questioned, engaged in 
by Presidents who have also sworn to uphold the Constitution, making as 
it were such exercise of power part [343 U.S. 579, 611] of the structure 
of our government, may be treated as a gloss on "executive Power" vested 
in the President by 1 of Art. II.

In Youngstown, Jackson concurred, arguing that the president's powers 
vary as to whether he acts with congressional authority (his greatest 
power), in the absence of it, or in opposition to it:

    When the president acts in absence of either a congressional grant 
or denial of authority, he can only rely upon his own independent 
powers, but there is a zone of twilight in which he and Congress may 
have concurrent authority, or in which its distribution is uncertain. 
Therefore, congressional inertia, indifference or quiescence may 
sometimes, at least as a practical matter, enable, if not invite, 
measures on independent presidential responsibility. In this area, any 
actual test of power is likely to depend on the imperatives of events 
and contemporary imponderables rather than on abstract theories of law.

When a president egregiously abuses his power -- particularly in areas 
relating to the rights of American citizens -- remedies are often 
difficult. The Supreme Court is reluctant to arbitrate a power struggle 
between two co-equal branches. That is why the Constitution prescribes 
the specific remedy of impeachment for crimes and abuses of power -- 
High Crimes and Misdemeanors -- and empowers the House and Senate to sit 
in judgment whether the actions are to be accepted or condemned.

What the Court said in Youngstown is that if presidents assert a 
prerogative -- like the power to make war without a congressional 
declaration -- systematically, with unbroken regularity, with the 
knowledge of the Congress and are never questioned -- then that practice 
becomes a Constitutional power that cannot be infringed upon by the 
Congress or the Courts.

Thus, Congress must formally object to President Bush's abuses or it 
risks by "indifference or quiescence" contributing to the powers of our 
imperial presidency.

When Pelosi took impeachment off the table, it was reduced to being a 
rhetorical protest vehicle for progressives like Dennis Kucinich or Russ 
Feingold. But Congress need not convict President Bush to impeach him 
for High Crimes and Misdemeanors. And arguably, the House need not even 
impeach the president to hold a Grand Inquest into the powers that he 
has claimed, registering a formal objection to them. The Judiciary 
Committee in the House should formally convene that Inquest, no matter 
what the decision is on impeachment. For if Pelosi's sensible political 
judgment results, as it has to date, in a show of congressional 
"inertia, indifference or quiescence," the Democratic majority in 
Congress may have gained a dozen seats at the cost of relinquishing its 
own powers, and putting the rights of Americans at risk.

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