The Federalist

Despite the authoritative tone I often use, I am no expert on American history. I am not even a particularly well informed dilettante. I’m just someone who's been reading a book and formed a few thoughts about it.

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His brow was of the sort phrenologically associated with more than average intellect; silken jet curls partly clustering over it, making a foil to the pallor below, a pallor tinged with a faint shade of amber akin to the hue of time-tinted marbles of old. This complexion, singularly contrasting with the red or deeply bronzed visages of the sailors, and in part the result of his official seclusion from the sunlight, tho' it was not exactly displeasing, nevertheless seemed to hint of something defective or abnormal in the constitution and blood.

Friday, January 13, 2006

Why Alito should not be a Supreme Court judge

I did a lot of driving this week, and listened to NPR a lot as I did. Over and over, I heard Republican Senators and Alito himself repeating the following talking point, as part of the Alito hearings and in the cotton-puff "analysis" that followed it:

"Of course the President has to follow the law."

"So long as it's constitutional."

Like most talking points, this sounds almost reasonable, but as with all talking points, it's that last little detail that makes it nuts: so long as it's constitutional. Who decides if it's constitutional? That's the job of the judiciary, right?

What the talking point says is that it is the job of the President to decide whether a law is constitutional until the courts explicitly tell him the opposite. In a limited sense this is often necessary, I'm sure: staff lawyers in every department have to decide if given actions violate the law or the Constitution, and the question isn't always clear-cut. But it is not supposed to be the main purpose of the Executive Branch:

The administration of government, in its largest sense, comprehends all the operations of the body politic, whether legislative, executive, or judiciary; but in its most usual, and perhaps its most precise signification it is limited to executive details, and falls peculiarly within the province of the executive department. The actual conduct of foreign negotiations, the preparatory plans of finance, the application and disbursement of the public moneys in conformity to the general appropriations of the legislature, the arrangement of the army and navy, the directions of the operations of war, these, and other matters of a like nature, constitute what seems to be most properly understood by the administration of government. [Hamilton: Federalist 72]

When a President does disagree with a law, he has the power to veto it. What he is not supposed to do is sign the law and then declare he plans not to follow its obvious meaning. He is not supposed to evade laws that explicitly require warrants for domestic wiretapping and then make excuses about why he never sought to have those laws changes.

The Constitution's main mechanism for controlling an out-of-control President is our system of checks and balances. That means the legislative and judicial branches have to assert their powers. Even under the most generous definition, that cannot possibly include the confirmation by the legislative branch of a Supreme Court nominee who believes a President can do whatever he wants.


Blogger Solomon Grundy said...

Which is why the president has an enormous incentive to find a wingnut who believes in radically expansive executive authority. And the founders would seem to have been able to predict that incentive.

Like I said above, this seems to have been a bit of a blind spot. Hamilton et al. discuss the worst case scenario of having Congress nominate Justices, but they ignore the worst case scenario of having the President do so. They just say that lifetime tenure and Senate confirmation will mitigate whatever problems might arise, without really discussing those problems. Considering the importance to them of curbing tyranny, that seems an odd oversight.

I'm mildly (very mildly) surprised that there aren't more good government Republicans in Congress who oppose granting the executive so much power, since a future Democrat in the White House could be just as tyrannical as a Republican.

1:41 PM  
Blogger Antid Oto said...

To be honest, they didn't see as much danger in the executive as in the legislative branch as a rule. But if things were working as they imagined, it would be very difficult for the President to expand his power at the expense of the legislative branch because the legislative branch could cut off his money. Up until this Presidency, in fact, that's more or less how it worked--Senators and Representatives were very careful to guard their power for reasons of personal interest.

The key dynamic that's broken, then, is between Congress and the President, not the courts and the President. I've been thinking about how that happened, and I think the K Street Project may be the answer. The union of all special interests and the Republican Party created a Stalinist-type structure in which if you follow party leadership, you get a cushy job for life. That creates a very powerful disincentive to buck a President in your own party, exactly the opposite incentive than if, for example, you as a Senator are a wholly owned subsidiary of a single segment of industry.

Now, if things work as Madison and Hamilton imagined, this Stalinist-type coalition won't hold. Its constituent interests will come into conflict and the whole thing will fall apart. I guess we'll see.

2:01 PM  

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