The Return of the Imperial Presidency?
Jonathan Alter believes the NSA domestic spying flap and the Alito hearings demonstrate that the country is “in danger of scrapping our checks and balancesÃ¢€”not just for a few years (as was done during the Civil War), but for good.”
What if we faced a constitutional crisis and hardly anyone noticed? As he quietly mastered the tiresome cat-and-mouse game inside the Senate Judiciary Committee last week, Judge Samuel Alito gave few hints of where he stood on a matter that goes to the heart of what it means to live in a republic. With a few exceptions, the media coverage didn’t help. It’s so much easier to talk about Joe Biden’s big mouth or a right-wing Princeton alumni group or Mrs. Alito’s tears than to figure out how the country should prevent a president of the United States from castrating the United States Congress.
…the nominee’s “no person is above the law” platitudes did not suffice. Alito endorsed a famous 1952 concurring opinion from Justice Robert H. Jackson that the president’s power is at its “lowest ebb” when he operates without congressional authority (the case involved whether President Truman could seize steel mills during the Korean War). But we never heard whether the brainy New Jersey jurist believes (like Bush) that the Constitution entitles the president to break the law in wartime.
Remember, this is not about whether it’s right or wrong to wiretap bad guys, though the White House hopes to frame it that way for political purposes. Any rational person wants the president to be able to hunt for Qaeda suspects wherever they lurk. The “momentous” issue (Alito’s words) is whether this president, or any other, has the right to tell Congress to shove it. And even if one concedes that wartime offers the president extra powers to limit liberty, what happens if the terrorist threat looks permanent? We may be scrapping our checks and balances not just for a few years (as during the Civil War), but for good.
Former attorney general Nicholas Katzenbach has similar thoughts. Reflecting back on abuses of federal power during the 1960s against civil rights leader Martin Luther King, Jr., he writes,
Today we are again engaged in a debate over wiretapping [We’re not wiretapping. -ed.] for reasons of national security Ã¢€” the same kind of justification Hoover offered when he wanted to spy on King. The problem, then as now, is not the invasion of privacy, although that can be a difficulty. But it fades in significance to the claim of unfettered authority in the name of “national security.” There may be good and sufficient reasons for invasions of privacy. But those reasons cannot and should not be kept secret by those charged with enforcing the law. No one should have such power, and in our constitutional system of checks and balances, no one legitimately does.
Forcing the executive to explain its reasons for intrusive law enforcement is essential to maintaining not just privacy but freedom itself. A congressional committee must exercise oversight. So too must an independent court because Congress is also subject to possible political pressure.
Our freedom is too precious, and too much blood has been shed to preserve it, to entrust it to a single person, however sincere and however well intentioned.
But, how exactly are we in this danger? The president asserts that he has certain extraordinary powers during wartime. Fine. But Congress is getting ready to have hearings on the matter and, as alter acknowledges, the federal courts will almost certainly be hearing the case soon.
During the Civil War, the Supreme Court recognized Abraham Lincoln’s ability to lay aside certain constitutional protections during national emergencies. Other rulings in subsequent wars buttressed that view. They also limited it, as in the case of Truman’s attempt to force striking steelworkers to return to work.
Unless President Bush intends to ignore the outcome of Supreme Court decisions and congressional hearings–and there is zero evidence that this is the case–where is the crisis?