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Toward a Liberal Federalism?
Apropos of the Marriage Amendment issue: one of the happy accidents of the Bush administration is that the president has been so determined to centralize social policy in the United States that he’s actually made some liberals appreciate the virtues of federalism. See this piece by the New Republic’s Franklin Foer or this one from Stanford’s Richard Thompson Ford for examples.
Early on in his administration, President Bush promised to:
make respect for federalism a priority in this administration. Respect for federalism begins with an understanding of its philosophy. The framers of the Constitution did not believe in an all-knowing, all-powerful federal government. They believed that our freedom is best preserved when power is dispersed. That is why they limited and enumerated the federal government’s powers, and reserved the remaining functions of government to the states.
Respect for federalism would require respecting the voters of Oregon when they set up a law allowing terminally ill patients to end their suffering with the help of their doctors. Respect for federalism would require respecting the voters of California and 10 other states that allow cancer patients, AIDS patients and others to use medical marijuana. Yet on these issues and many other issues that the Constitution leaves to the states — crime, education, marriage — President Bush has fought very hard to increase Washington’s involvement — usually in ways that offend Blue State sensibilities.
With the Red Team doing the centralizing, it’s only natural that the Blue Team would look favorably on a more decentralized system. I’ve always been a bit uneasy about some of the liberal justifications for federalism, such as Justice Brandeis’s “laboratories of democracy” argument. Just who are the lab rats in that metaphor? (Note that Foer lists Elliot Spitzer as one of the bold experimenters liberals should emulate.)
But the virtues of federalism are plain, and appreciating them shouldn’t depend on who’s up or who’s down. Federalism makes it easier for Americans to escape unwelcome state experiments with fiscal and social policy. It enhances the political power of individual citizens by allowing important decisions of governance to be settled closest to where Americans live and work. And it avoids making politics a centralized war of all against all, where each contested moral issue is settled in a one-size-fits-all fashion at the level furthest from the people.
I hope that the Republican assault on federalism leads to a resurgence of decentralist liberalism. I fear that, as with the Right, the Left’s interest in subsidiarity will last about as long as its exile from federal power. Yet hope springs eternal.
Selective Outrage
Here’s the webpage for Rep. Sensenbrenner’s breathlessly titled hearing on the FBI search of Rep. Jefferson’s office: “RECKLESS JUSTICE: Did the Saturday Night Raid of Congress Trample the Constitution?” It’s a stacked deck–four scholars who share Sensenbrenner’s outrage over the raid.
Perhaps the testimony of Jonathan Turley or Bruce Fein, both of whom have been on the right side of important separation of powers issues in the last few years, will change my mind. But right now the congressional reaction to the search reminds me of President Clinton piously invoking the Constitution in defense of the God-given, natural right to fool around with the help and lie about it in court. As Clinton put it at a news conference in 2000: “on the impeachment, let me tell you, I am proud of what we did there, because I think we saved the Constitution of the United States.”
If you’re going to defend the Constitution, you could pick clearer grounds than a narrow interpretation of “high crimes and misdemeanors,” and it would also be nice if you’d demonstrated the slightest interest in defending it before Ken Starr came knocking. Similarly, if you’re going to complain about “Trampling the Constitution,” it’s a little unseemly to start with penumbras and emanations from the Speech or Debate Clause, when you have a president who claims inherent authority to break any law that Congress passes if he believes it constrains his freedom of action in the war on terror. Marty Lederman puts it well:
if this were part of a concerted congressional effort to fight back against the tide of Executive aggrandizement, the outrage might be understandable. But Congress has been almost completely indifferent, for two years running now, with respect to very serious separation-of-powers challenges — an Executive branch that has repeatedly asserted a constitutional power to ignore statutes regulating the conduct of war; that has kept virtually all of its dubious activities secret from the legislature and public; that has resisted any serious oversight; that has engaged in widespread surveillance of U.S. citizens without warrant or probable cause of wrongdoing (or that the U.S. persons are agents of al Qaeda); etc. And Congress has simply sat back and done nothing. If Denny Hastert, et al., had been fighting tooth and nail on torture, and oversight of Iraq, and the manipulation of intelligence, and the use of signing statements to signal noncompliance with scores of statutes, and violations by NSA of FISA and other statutes, etc., then perhaps this latest incident would rightly be seen as a straw that broke the camel’s back. But… Congress has instead allowed its own core constitutional powers — such as the enactment of laws — to be swept aside with impunity by an Administration with a strikingly aggressive view of Executive prerogatives. That legislators care much more about the sanctity of the contents of their offices than about the enforcement of the laws they have written is, perhaps, predictable, but nevertheless unfortunate.
Little Victories
…in the fight against the Nanny State: in Massachusetts, the state legislature just narrowly rejected ”primary seat belt legislation.” In English, that’s a law that gives police the power to pull you over simply because someone in your car isn’t wearing their seatbelt (“secondary seat belt laws” allow them to ticket you for not wearing a seatbelt only if they’ve stopped you for some other infraction).
Last summer, using night-vision equipment on loan from the National Guard, Maryland state troopers scanned passing cars, then swept out and nabbed 111 offenders for the crime of driving without a seatbelt. Scores of people who were driving along, minding their own business, had their evening ruined by an unpleasant encounter with the business end of the law. Law enforcement overreaching caused an outcry in that case, and citizen pressure in Massachusetts seems to have led several lawmakers to back away from the primary seatbelt bill.
It’s good to know that even in Massachusetts there’s still some resistance to the growing crusade to ensure healthy living through coercion. But it’s not coming from the Governor’s office. Mitt Romney, GOP presidential hopeful for 2008, had promised to sign the bill.
Toughman Contest
U.S. News has an interesting profile of David Addington, Vice-President Cheney’s chief of staff and top legal adviser—a key player in administration debates over torture, domestic detention, and NSA surveillance. One thing that stood out for me was this description of the social dynamic at work when administration lawyers crafted War on Terror policies:
Whether or not he became the de facto leader of the group, as some administration officials say, Addington’s involvement made for a formidable team. “You put Addington, Yoo, and Gonzales in a room, and there was a race to see who was tougher than the rest and how expansive they could be with respect to presidential power,” says a former Justice Department official. “If you suggested anything less, you were considered a wimp.”
For background on the legal theories that emerged from that environment, see here.
Reflexive Militarism
Some have charged that President Bush’s plan to deploy 6,000 National Guardsmen to support roles along our border with Mexico constitutes “militarizing the border.” Well, sort of. But “security theater” is probably a better term. It’s a highly visible move designed to provide the appearance of increased security without actually increasing it, much like the use of guardsmen at the airports following September 11th.
In this case, the troops will be “operating surveillance systems, analyzing intelligence, installing fences and vehicle barriers, building patrol roads, and providing training,” according to the president’s speech Monday night. They will be under the command of the state governors, they will not have arrest authority, and they will not be involved in direct law enforcement activities, which means that there’s no objection based on the Posse Comitatus Act, the longstanding federal statute that restricts use of federal troops to “execute the laws.” On the whole, this is a far cry from some of the proposals for hard-core border militarization floating around on the right.
Yet the Bush administration does have a tendency, when faced with political trouble, to reach for the military. Trying to look decisive in the wake of Katrina last fall, the president asked for major revisions to Posse Comitatus twice in the space of a month, once to fight hurricanes and once to order military quarantines for Avian flu. Monday’s proposal is merely the latest iteration of the administration’s reflexive militarism, and it’s a comparatively mild one at that.
But here’s something a little more troubling than the upcoming exercise in security theater at the border. In the administration’s internal legal analysis, the Posse Comitatus Act may be vulnerable to going “poof,” as yet another statute touched by the Magic Scepter of Inherent Authority. There are a lot of bad ideas floating around about domestic militarization of the war on terror. If there’s another serious terror attack, that legal theory could be used to make some of those bad ideas happen.
Bitter Ironies
Remember when conservatives wrote books with titles like Absolute Power: the Legacy of Corruption in the Clinton-Reno Justice Department? Those were the days. But here’s a new selection from the Conservative Book Club: Can She Be Stopped? Hillary Clinton Will Be the Next President of the United States Unless… What? I don’t know, but that’s the title of a new book from John Podhoretz of NRO and the New York Post.
What I do know is that if Hillary is the next president, she’ll be able to lay claim to a number of vast, extraconstitutional powers championed by right-wingers like, uh, John Podhoretz. Among those powers is the ”inherent executive authority” to wiretap at will and, perhaps, to seize American citizens on American soil and hold them without charges for the duration of the war on terror — in other words, forever.
The ’90s weren’t that long ago. And I remember a lot of wailing and gnashing of teeth over misused FBI Files and suspicious IRS audits. Over the last four and a half years, many of the same wailers and gnashers have cheer-led the concentration of unreviewable power in the executive branch, as if George W. Bush would be the last president ever to wield that power. And now, lo and behold, there’s the mistress of Travelgate warming up in the on-deck circle. Join me in a bitter chuckle.
Funny, that didn’t make me feel better.
Kerr on the NSA Database
Over at the Volokh Conspiracy, Orin Kerr has an informative first cut at the legal issues surrounding the NSA’s newly revealed phone-call-record database. Bottom line: Whether you think the program is unlawful is likely going to depend on whether you think Article II allows the president to bypass statutes that infringe on tactics he wants to pursue in the war on terror.
Mission Creep
Opponents of Gen. Michael Hayden’s nomination as CIA director object to the fact that he’s an active-duty military officer. I’m not sure that’s the best argument against Hayden, since he wouldn’t be the first such to run the agency. That Hayden happily ran a secret surveillance program that violates the Foreign Intelligence Surveillance Act ought to be a bigger concern.
But if you want to worry about a military/surveillance nexus — and you probably should — there’s plenty to worry about quite apart from Gen. Hayden and the NSA. There have been a number of unsettling reports in recent months about military intelligence officials developing an unhealthy interest in peaceful protest groups.
The history of domestic surveillance by the military is part tragedy, part farce. I covered a little of that history here:
[T]hroughout the 20th Century, in periods of domestic unrest and foreign conflict, army surveillance ratcheted up again, most notably in the 1960s. During that tumultuous decade, President Johnson repeatedly called on federal troops to quell riots and restore order. To better perform that task, Army intelligence operatives began compiling thousands of dossiers on citizens, many of whom had committed no offense beyond protesting government policy. Reviewing the files, the Senate Judiciary Committee noted that “comments about the financial affairs, sex lives and psychiatric histories of persons unaffiliated with the armed forces appear throughout the various records systems.” Justice William O. Douglas called army surveillance “a cancer in our body politic.”
Check the Church Committee’s report on “Improper Surveillance of United States Citizens by the Military” for more on the history we should be loath to repeat.
No Guardrails?
As Tim Lynch and I detail in our new study Power Surge: The Constitutional Record of George W. Bush, the Bush administration has advanced an extraordinarily broad theory of presidential power during the war on terrorism. The claim that shows up again and again—in the torture memos, in the enemy combatant cases, in the wiretapping controversy—is that the president’s “inherent executive authority” and powers as commander in chief allow him to override validly enacted statutes that proscribe tactics he wants to pursue in the war on terror.
But surely there are limits to this theory, boundaries that even a wartime president cannot cross, right? Well, if there are, administration officials have been pretty cagey about identifying them. At a Senate Judiciary Committee hearing in February, Attorney General Alberto Gonzales stonewalled like a Supreme Court nominee when asked about limits to the president’s power. To questions like “Can the president suspend the application of the Posse Comitatus Act legally?” he’d offer only, “Those are very, very difficult questions. And for me to answer those questions, sort of, off the cuff, I think would not be responsible.”
In April, before the House Judiciary Committee, Gonzales suggested that the president has inherent authority to wiretap Americans’ domestic communications–calls and emails where both parties are in the United States–without a warrant. That day, the Justice Department issued a “nonclarification clarification” of the AG’s remarks: “The attorney general’s comments today should not be interpreted to suggest the existence or nonexistence of a domestic program or whether any such program would be lawful under the existing legal analysis.” Anyone looking for a straight answer on limits to “inherent executive authority” would be well-advised to look elsewhere. Read the rest of this post »
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