Sunday, February 05, 2006

The Strongest Argument Against Bush's Claim to Absolute Power

I don't necessarily disagree that the President has some inherent war powers which run contrary to the Constitution. But they are to be of a temporary nature, not part of a conflict that will span decades. Benjamin Kleinerman, assistant professor at VMA, wrote an opinion piece that speaks very well on this subject.

It's worth remembering that Bush's current claim of absolute sovereignty is nothing new. Hamilton, the aristocracy advocate, argued the same point with Madison in 1793.
Madison said Hamilton's argument that the power of the executive to preserve the Constitution was illimitable pointed to the destruction of constitutional government.


The crucial problem for Madison is not the action itself - an attempt to keep the fledgling United States out of a looming European war - but the rhetoric and legal language with which the action is justified. Madison argues that Hamilton's justification could lead to the obliteration of essential limits on executive power.

Bush uses the same rhetoric to justify such an obliteration.

But that's opinion, which is really what we're stuck with when trying to decipher the Constitution. As Justice Jackson said in the middle of the last century, we
“may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves. Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh. A century and a half of partisan debate and scholarly speculation yields no net result but only supplies more or less apt quotations from respected sources on each side of any question. They largely cancel each other.”

Madison and Hamilton were both great thinkers and writers with different opinions. Heck, you can find a Jefferson quote for just about any side of an argument. It's part of why the Constitution really is a living document, subject to opinions and interpretations based on the ruling school of thought of any generation. If government can be likened to a building, the Constitution provides the structure, but the people furnish the rooms, and I think President Bush has dreadful taste. More than that, he's letting the termites feast on the foundation.

But Hamilton's and Bush's argument that the power of the Executive is absolute in defense of the country is the fact that Congress has the power neuter the Executive's war-making ability:

The Congress shall have the power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; ...

To borrow money on the credit of the United States;


To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress.

The Congress can defund the war and direct the National Guard to stand down and come home. Congress can defund the entire Executive itself. The Executive is cash poor.

Let Bush's war-profiteers use their ill-gotten gains to finish the job if they're such firm believers. Let Bush fund his own Executive Branch if it won't be curbed by the Legislature. It's hard to be an absolute Monarch when you don't have any cash or the ability to raise it.

And that is the single most persuasive argument I know for why the Executive Branch does not have absolute, illimitable war powers.

...Of course, the Congress would most certainly pay an enormous political price for such actions, as the Executive would argue the Congress is leaving the U.S. defenseless, which it would be.

But that is a political reality, not a legal one.

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