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Sunday, June 11, 2006

Law - "Scholars are split on the Bush administration's use of the Federalist Papers to justify its position "

"Scholars are split on the Bush administration's use of the Federalist Papers to justify its position on presidential war powers" is the headline to an opinion piece by Charlie Savage in The Boston Globe today -- following on his earlier stories on the tension between Congress and the President's re-definition of the reach of executive powers. Today's article begins:

SINCE THE TERRORIST ATTACKS of Sept. 11, 2001, the Bush administration has made sweeping claims about the power the Constitution gives the president as ``commander in chief." Because the president is responsible for protecting national security, the administration has argued, Congress cannot restrict his powers in a time of war.

President Bush hasn't been shy about putting his philosophy into action. In a series of ``signing statements," Bush has claimed that he has the authority to disobey several recent laws passed by Congress, including a ban on torturing detainees and oversight provisions in the USA Patriot Act. Nor has the president limited his opposition to laws passed on his watch; Bush has also authorized the military to wiretap Americans' international phone calls without warrants, defying a 1978 law, the Foreign Intelligence Surveillance Act, or FISA.

To make his case for these broadened powers, Bush and his administration have fallen back on a familiar strategy: pointing to the Constitution and looking to the founders as a guide to its meaning. This ``originalist" approach has been a hallmark of the Bush White House, informing everything from its taste in judges to its opposition to abortion. Relying on a tried and true method of divining the original intent of the Founding Fathers-reading the Federalist Papers, the essays written in 1787 and 1788 by three of the founders to explain the meaning of the Constitution-the administration asserts that it is using executive power as the founders intended.

Yet scholars from across the political spectrum question the historical cases Bush and Vice President Dick Cheney have made. In an effort to find backing for their view of presidential power, these scholars argue, the administration has quoted selectively, taken passages out of context, and simply ignored what many constitutional scholars say is the Federalist Paper that most squarely addresses the president's wartime powers: Federalist 69.

Earlier this month, Adam Liptak of the NY Times had a good news analysis of the difficult questions related to the FBI search of a congressional office. Titled "Congress and Justice Dept. May Both Be Overreaching," it begins:
The Justice Department is probably correct in saying that it was legally entitled to search a congressman's office last month. But in ignoring history and established conventions in that case, some legal scholars say, the Bush administration has again unsettled widely shared understandings of constitutional relationships and freedoms that have existed for generations.

As with the administration's assertions that it may ignore a law on domestic eavesdropping, reinterpret other laws through presidential signing statements and prosecute journalists under espionage laws, specialists in constitutional law and history said, the Justice Department's justification for the search is an aggressive use of executive power.

In the search case, there is broad academic consensus that the constitutional protection for Congressional speech and debate does not extend to evidence of criminal conduct, even if it is in a Congressional office.

That means the Justice Department was probably entitled to seek — and a federal judge probably correct in authorizing — a warrant to search the offices of Representative William J. Jefferson, Democrat of Louisiana, notwithstanding objections by leaders of Congress.

But having the legal power to conduct a search of another branch of government does not mean it is a wise or prudent thing to do. No other administration has ever done it. In ordering a 45-day cooling-off period, during which the solicitor general will hold the seized materials, President Bush seemed to allow time for reflection on the difference between what the executive branch may do and what it should do.

At the same time, Congressional leaders may have overreached in describing the search as a flagrant violation of the Constitution.

Indeed, the argument that Congressional offices are immune from law enforcement searches has something in common with the argument that the president has the authority to reinterpret the bills he signs into law, said Douglas W. Kmiec, a law professor at Pepperdine University.

"They have no taproot in the constitutional document," Professor Kmiec said of arguments. "They're all sound and fury."

Posted by Marcia Oddi on June 11, 2006 05:44 PM
Posted to General Law Related