Ultra Vires

Sandy Levinson Beats Me to the Punch. Again.

Damn, damn, damn, damn. I'm continually trying to think ahead and Sandy Levinson is continually beating me to the punch. This analysis is the example du jour. I had been thinking about this for the last week and planning a big, oh-so-impressive post here on the subject. So much for that.

Good stuff abounds here. I would have missed the bit about appointments to the FISA court, an EXTREMELY important point. I would have missed the reference to Professor Paulsen too. He does a good job on Schmidt as well. (Btw, does anyone have sound evidence that the views in the White House are due to everybody's favorite Nazi intellectual? They seem more a bastardization of Strauss, bent through the forced resignation of Tricky Dick to me.)

For what it's worth I think Friend Levinson is 1000% right on this one. Executive power is what has driven all of Bush's nominations so far and will drive them in the future if - but Heaven forfend - he has another appointment to the Court. I'm with him; here's where the politics and the conlaw line up. The Dems should filibuster Alito and turn the whole debate into a catfight over the 4th amendment and executive power. Done correctly - and I think we can count on Harry Reid and Robert Byrd for that - this is an easy winner. It might not stop Alito, of course, but it would make his nomination - it's bound to look as unprincipled as it will be - a real asset come November.

- Tracy Lightcap

Proto-Fascism

This editorial is pretty indicative of what we have been hearing concerning Snoopgate in recent days. But, pace Turner and for about the hundredth time, no one doubts the President's power to conduct warrantless searches of foreign agents and, in fact, that is just what FISA provides. The surveillance of US citizens is also permitted, if a warrant is obtained from the secret FISA court. The cases Turner cites are irrelevant to this, as he no doubt knows.

What he is really asserting is that the entire string of cases and statutes controlling the president's powers in the area of foreign intelligence are unconstitutional. I've seen this argument presented a lot in recent days and I'm going to brand it now: it's proto-fascist.

Any fair reading of the constitutional history of this country will conclude that there is simply no area under the Constitution where the president has plenary and exclusive power. Even in the conduct of war, his power is limited, both by the requirement of continuing appropriations and by Congressional oversight of the armed forces. It is most certainly limited by actual statutes passed by Congress and by the Constitution itself; Youngstown Sheet and, more recently, Hamdi show this conclusively.

What Turner is saying is that, despite the 4th amendment and despite the long string of decisions restricting executive power, the president has ALWAYS had war powers that trump both statutes and the Constitution itself. Further, we have no need to worry because these powers are necessary for our national security. All he left out - and others have put it in - is that the administration can be trusted because they are basically moral people who have a special responsibility that is higher than the force of law.

Put simply, this is "Mussolini ha sempre ragione" in American English. No such power exists now or ever has in this country. But, unless we do show a little national spine soon, it will and we can kiss our civil rights goodby when it does. If anyone out there thinks that we can trust future presidents - I won't even mention the Cheney administration here - to stay within self-imposed limits when it comes to intelligence gathering and to resist using the data gathered for political purposes ... well, I have a bridge in Brooklyn that's for sale! Cheap!

-Tracy Lightcap

The Big Untold Story

About executive initiative in the law is outlined in semi-shocking detail in this report. True, nobody should expect a government that has been run by and large by Republicans for the last 25 years to be enthusiastic about enforcing the nation's labor laws. It is revealing, however, just how much blatant violations of the NLRA have come to an accepted way of doing business. When I exclaim about this to my wife, the management labor lawyer, I get a strong denial that her firm ever counsels its clients to break the law, even in the most heated disputes. "Ah," say I, "but you don't try to stop them when they do, do you?" "Not our job." says she, "That's up to the government."

And so it is. But what if the government simply stops enforcing the law with any vigor and the law has no teeth that employers need fear on top of that? Then what is to stop the "R-case" lawyers who advise them from laying out the costs and benefits of following the law? Nothing, of course; they'd see it as part of their obligation and they'd be right. The result has been a bloody casino for labor organizing in the United States and a prime example of how the law can be twisted into its opposite by executive power.

That LOOKS reversable, of course; all you need is a Democratic president who is strong on labor rights. But look at the report. There has been no effort to stiffen the laws since the Carter administration and there the administration opposed it! After awhile, predispositions like this become part of the expected deal between political actors, something everyone lives with, no matter how short they think their end of the stick is. Executive initiative can create that a lot easier then it can turn it around.

- Tracy Lightcap

What? Those Guys!? Nah! Couldn't Be!

Ah, there's nothing like seeing your predelictions confirmed! This post from Digby sums up exactly what this site is about. If ever there was a more blatant interference of executive initiative into the regular workings of the law, I'd sure like to hear about it. And this, as Dig points out, is just the latest. It's hard to keep up with all the ways the Bush Justice Department has subverted legal process. I'll think about trying to keep up with it.

- Tracy Lightcap

Executive Initiative to the Max

I was reading this article about Hugo Chavez when it suddenly struck me why the Venezuelan opposition was having such a hard time getting anything going against him. They're up against Julius Caesar. As in the Roman Republic, the "normal" course of democratic politics in Venezuela had fallen into the hands of an increasingly disconnected political elite who left the bulk of the country's population to the tender mercies of the economic winds and who had wired politics to exclude popular alternatives. Unfortunately for them there was an ambitious and very effective political figure working below their radar. Chavez wasn't a patrician, but he, like Caesar, had kept the promise of popular politics alive by personal contacts with many mid-level figures in Venezuela's most important institutions, especially in the armed forces. He never promised anything specific; just that someday he would change everything. Everyone was surprised when he emerged in the failed coup of 1992 and were flabergasted when he won election as President in 1998 and withstood a coup attempt in 2002, largely because of his support from the officer corps of the armed forces and massive popular demonstrations. A smashing victory in a recall referendum and a new constitution later, Chavez seems poised to win the presidency again; his supporters are looking for a 70% majority and are very likely to get it.

So what does this have to do with us and with the Imperator? It comes down to the way Chavez is ruling the country. Like Caesar, he is putting himself before the people weekly (Allo Presidente!, his tv show, has monster ratings). Like Caesar and his successors, the new social services he is delivering in the barrios aren't connected to the usual government ministries. The misiones, as they are called, are run directly out of the president's office using monies allocated by the new single house legislature through that old favorite, the enabling act. So where do the courts get purchase? Goooood question and one that hasn't been studied yet, so far as I know. The new constitution gives the Supreme Judicial Tribunal plenty of power (art. 266), but also make selection of justices a three step procedure: first, the Judicial Nomination Committee, then the "Citizen Power nomination Evaluating Committee", then selection by the National Assembly (art. 264). Two guesses (first one doesn't count) who gets to select the officers who make up the "Citizen Power" that appoints that evaluating committee.

I can see why this causes people to have doubts about where Venezuela is headed. But, as they say in the barrios and said in the Subura, "Y ellos, ¿Qué hicieron?" ("And they, what did they do?"). Nothing and they may have lost their idea of a republic in the process.

Negative Executive Initiative?

Our friends Matthew Holden and Jim Eisenstein study executive initiative and its role in the law. But I think they are generally concerned about what we could call positive executive initiative; i.e. initiatives taken by executives or executive agencies when they want to affect legal outcomes. This Newsweek article , however, seems to suggest that we might have instances where executive bodies actually try to use the law to avoid being linked to certain situations. What might be happening is that those at lower pay grades in poorly institutionalized agencies (you'd be hard pressed to find a better example of that than Homeland Security) are using legal manuvers to keep out of the political bullseye created by the Katrina disaster. What remains to be seen is if this was the result of a lack of administrative competence or of clear organizational missions or of failures in political leadership. Wonder how many investigations we'll need to find out?
- Tracy Lightcap