Andrew Card – A dangerous Boy Scout

Pict87 Remember this man?  He was White House Chief of Staff.  He was an Eagle Scout.  He was head of the White House "Iraq Group," the collection of courtiers, party hacks, and sycophants who were put in charge of selling the idea of war with Iraq to the American people.  By fair means or foul, they proceeded to do that, driving the propaganda machine forward with relentless zeal, clearing human obstacles away like brush on Caesar’s "ranch."  The only truth that mattered for them was the pathetic, ignorant, simplistic drivel that Bush, Cheney and Rice spouted continuously to the servile media.

Today on the MSNBC "Morning Joe" show, Card was asked by Pat Buchanan if the American people did not have the right to be informed in advance of deliberations that might lead to a new war.

Card’s reply was that the citizenry have a right to be informed only if that does not limit the president’s freedom of action in deciding how to defend us (America.)

There you have it.  The man was the president’s chief of staff and he thinks of the presidency as a nearly unlimited monarchy.  pl

This entry was posted in Politics. Bookmark the permalink.

45 Responses to Andrew Card – A dangerous Boy Scout

  1. Cato says:

    Andrew Card, along with other prominent, current and former members of the Bush II administration, is a war criminal. You really can’t expect much from a war criminal.

  2. lina says:

    “The man was the president’s chief of staff and he thinks of the presidency as a nearly unlimited monarchy.” pl
    And why shouldn’t he?
    Neither Article I of the U.S. Constitution nor The War Powers Act of 1973 are worth the paper they’re printed on today.
    The servile media are aided by the jellyfish of the legislative branch.
    The unchecked power of the president lies squarely with the two other branches of government, does it not? If we can’t get people to care about the rule of law, we’ll always get the leadership we deserve. Bush/Cheney have no fear at this point. They’re lame ducks with approval ratings in the toilet, and they have nothing to lose. If they choose to nuke Tehran tomorrow, who’s going to stop them?

  3. condfusedponderer says:

    I disagree about unlimited monarchy. It is about the state of exception. Apologies in advance, this is inevitably very brief, cursory and incomplete.
    For Schmitt, every government capable of decisive action must include a dictatorial element within its constitution (call it ‘commander in chief’), lest it risks its own undoing.
    Although the German concept of Ausnahmezustand is best translated as state of emergency, it literally means state of exception which, according to Schmitt, frees the executive from any legal restraints to its power that would normally apply. To Schmitt the ‘state of exception’ belonged to the core-concept of sovereignty. Schmitt:

    “Sovereign is he who decides on the exception.”

    By ‘exception’ Schmitt means the appropriate moment for stepping outside the rule of law in the public interest.
    Schmitt’s state of exception is not a dictatorship or an absolute monarchy, but a space devoid of law in which all legal determinations are deactivated. This space devoid of law seems to be so essential to the juridical order that the state of exception as the suspension of law is grounded in the juridical order.
    That is why Addington, and I think he does adhere to this line of reasoning (as it so well complements his arguments), can claim that Bush obeys the constitution – because the commander in chief powers he claims are according to the rationale of the ‘state of exception’ inherent in the constitution, in any constution, and need not be explicitly mentioned. And that explains why in Addington’s view asking for approval for actions that he considers to be at the exclusive discretion of the commander in chief, means giving these powers away.
    The crucial problem connected to suspension is that the acts committed during the suspension of law during the state of exception seem to be situated in a non-place with respect to the law – which are thus commonly interpreted as lawbreaking. To Schmitt and Addington they are not. They are non-legal because they are executive acts taken in the ‘state of exception’.
    To Schmitt crisis and state of emergency are not exceptional moments in political life opposed to some stable normalcy, but themselves the predominant form of the life of modern nations. It is easy to see how Schmitt’s ideas must appeal to those power politicians in the US who want a strong federal executive, to Cheney and Addington certainly.
    So that includes Card, too? I don’t know. He’s a dyed in the wool partisan, and he might just choose this line of argument for political expediency.
    Anyway, according to Schmitt, the functioning of the legal order rests on the state of exception, whose aim it is to make the norm applicable by a temporary suspension of its exercise. But if the exception becomes the rule, this arrangement can no longer function and Schmitt’s theory of the state of exception breaks down. Cheney, Card and Addington fail to see this final contradiction.

  4. TomByrd says:

    Welcome to the new world of RealPolitik. Hail Mr. President, We, the sheep, salute you!
    Bah (or should that be baaa?)

  5. WP says:

    I think the use of monarch is the wrong choice of wording. Dictator would be more apt.
    It can be said that if you can do it and get away with it, you have the power to do it. In the last few years, this adage has ruled the nation instead of the Consitution and its amendments.
    Unfortunately, power is what power can get away with will be the rule in the future unless these usurpers of power are impeached or otherwise limited and contained.
    To a large degree, our government is based upon consent of each branch to be checked and balanced by the others. It disintegrates if the executive ceases to believe in republican principles. On may reasonably question whether the present Executive respects those principles sufficeintly to constrain its own power within the system to allow the system to survive without becoming a true dictatorship or creating a constituional crisis.

  6. linda says:

    props to mr card’s p.r. advisor who wrote up that sweet little wiki entry.
    curiously, the most infamous quote attributed to mr card about product rollout is not to be found there.
    September 6, 2002: “From a marketing point of view, you don’t introduce new products in August.”
    nor is there any reference to mr card being the partner to disgraced former attorney general abu gonzalez on the late nite visit to john ashcroft’s hospital bed in an attempt to circumvent a doj ruling the bushies didn’t like.
    “Comey described what happened next: “The door opened and in walked Mr. Gonzales, carrying an envelope, and Mr. Card. They came over and stood by the bed. They greeted the Attorney General very briefly. And then Mr. Gonzales began to discuss why they were there — to seek his approval for a matter, and explained what the matter was — which I will not do.”
    i remember andy card.

  7. Patrick Lang says:

    If it is Carl Schmitt of whom you speak, I am truly appalled.

  8. WP says:

    A bit off topic, but referring back to the earlier post about 10 lbs in a 1 lb. bag, if your main constituency is the oil princes, a little stirring around about attacking Iran does a lot toward keeping the prices up!

  9. J says:

    in addition to card being a dangerous boy scout, what is really getting my goat is that our cjcs, cno, and tradoc cc are all making ‘pilgrimage’ to a foreign power — israel. the only pilgrimage IMO that they should be making is to the building that houses our nation’s Constitution and Bill of Rights where they can all sit down and read and understand our nation’s founding documents and what is ‘supposed to’ make our nation tick. and re-learn ‘why’ we americans don the military uniform of our nation — for the u.s., NOT for or on behalf of a FOREIGN POWER!
    i am smokin on this one!
    Jun 26, 2008 20:42 | Updated Jun 28, 2008 15:56
    Security and Defense: Not leaving the nuclear threat up in the air

  10. condfusedponderer says:

    he’s the one. He is brilliant; his style of writing excellent; his degree of abstraction high. It is really intellectually (and linguistically) rewarding to read his texts, and he is rather difficult to understand, which suggests ‘adult supervision’. For solutions or guidance Schmitt is in my view a treacherous source.
    For my part, I am uncertain whether I have fully understood Schmitt. However, I think I clearly understand where his theories can lead to.
    I find it scary to see his ideas apparently being taken up in the US by the current administration. I think this is not an accident but probably the result of a longer process.

  11. Clifford Kiracofe says:

    1. Per Carl Schmitt,
    I would again note that he was Leo Strauss’s professor. Schmitt got Strauss his Rockefeller Foundation (European Branch) scholarship/fellowship which was Strauss’s ticket out of Nazi Germany. He went to Paris and then to London where he worked on Hobbes. Once laundered in London, he was deployed, by whom I have no idea, to the United States. He finally ended up at U Chicago.
    Straussians have penetrated not only political science and philosphy departments, they have also penetrated law schools. Isn’t the Federalist Society something of a Straussian thing for lawyers?
    Several of Schmitt’s works have been translated into English.
    One can argue via Schmitt for the “Dictator.” One can also use another chain of arguments via Filmer (whom Locke opposed) to arrive at the absolute (divine right) “monarch” with his vast “prerogative.” Those with a Germanic bent can go via Schmitt. Those with an Anglophile bent can go through Filmer. Or one can mix the two.
    2. Per the power to DECLARE war, it is vested in Congress by the Constitution. There is a long historical background for this. In modern America, however, the Executive Branch has essentially usurped this power with the connivance of a supine, corrupted, and cowardly Congress. You can argue Truman and Korea set the stage for Bush and Iraq. The War Powers Act of 1973 came and went without effect.
    3. To understand how we got to where we are now, Arthur Schlesinger’s, Imperial Presidency (per Nixon era) is required reading. George Shultz, Richard Cheney, Don Rumsfeld came out of this milieu. Cheney and Rumsfeld both from the Ford Administration on were groomed in Neoconservative circles, hence their Straussian behavior should come as no surprise. That they would select Neocons to be their advisors should also come as no surprise.
    Card, an asset of the Bush family dynasty, could be considered a Neocon groupie I suppose.

  12. Frank Newbauer says:

    A minor point, but a correction to WP’s post; I agree with the substance of the post. “Dictator” was a constitutional office in the Roman republic – extraordinary, but a duly constituted office. What we have here is tyranny pure and simple, the usurpation of power in an illegitimate, unconstitutional manner. See for example, the name of this weblog.
    Evil and corrupt as the Bush cabal certainly is, it is the enablers and toadies in Congress, the Supreme Court (the co-equal branches) and the media who deserve the blame for allowing this to happen.
    Assuming that we remain a republic – a questionable assumption – will the next administration, even if it wants to, be able to undo the damage these loathsome fascists have done to our country?

  13. Sidney O. Smith III says:

    In my opinion, Prof. Kiracofe of W & L once again makes great insights as he shines a light on the different intellectual and historical threads at work.
    And I second the notion that Schlesinger’s book, The Imperial Presidency, is a must read. After Schmitt’s name came up in this thread, I grabbed my copy of the book (and I say with some pride, signed personally by Schlesinger but, of course, not to me). I wanted to see if Schmitt’s name was in the index. It wasn’t. But Schlesinger discusses throughout the book the idea of the assumption of absolutle power in the form of a temporary dictatorship to “save” the union.
    As Addington, Card, and company shred the constitution, many of Schlesinger’s warnings have materialized. And Schlesinger arguably was aligned with liberal interventionists and somewhat of an apologist for Lincoln. Just shows you have far we have devolved.
    I for one certainly look forward to Prof. Kircofe’s book. The tradition of Virginia continues!

  14. D White says:

    “It is about the state of exception…
    For Schmitt, every government capable of decisive action must include a dictatorial element within its constitution (call it ‘commander in chief’), lest it risks its own undoing. ”
    What was the state of exception for a war of choice? What was the need for decisive action?

  15. durendal says:

    Prof. Kiracofe states “…could be considered a Neocon groupie, I suppose.”
    from Salon
    Former Secretary of the Treasury Paul O’Neill, in his memoir, “The Price of Loyalty,” recounts an anecdote that begins with President-elect [George W.] Bush interrupting O’Neill’s discussion of policy: “‘Where’s lunch?’ They’d ordered cheeseburgers, but after fifteen minutes, they had not arrived. ‘Go get me Andy Card,’ Bush said to one of the Secret Service agents [Card was] stolid and jovial, a man of solid, loyal character. Bush looked impatiently at Card, hard-eyed. ‘You’re the chief of staff. You think you’re up to getting us some cheeseburgers?’ Card nodded. No one laughed. He all but raced out of the room.”
    From Salon

  16. Cujo359 says:

    Does Andy Card believe the President can order people to be buried alive? I was in the Boy Scouts – I’m pretty sure there wasn’t a merit badge for that. Camping and First Aid were as close as we got to that sort of thing.

  17. Duncan Kinder says:

    Card’s reply was that the citizenry have a right to be informed only if that does not limit the president’s freedom of action in deciding how to defend us (America.)
    Given the state of various deficits nowadays, one constraint on any president’s freedom of action would be his ability to fund said war.
    As anybody who has run a business knows, you typically have to run major projects by your banker; and he typically shows up on your board of directors.
    Our banker nowadays is China, plus a few other Asian countries.
    So the president is Sultan of Swat only to the extent that they concur.

  18. wisedup says:

    Card feels that it is better to the be the toady of the tyrant than to be a citizen of a democracy. The Boy Scout experience cuts two ways and I have seen far too many weak-minded boys who loved the uniforms and the power that came with the position. Unable to create a community but always willing to dish out the ‘discipline.’
    Schmitt should have been housed in the Nazi work camps to better himself.

  19. Arun says:

    Why do I get the feeling that the scattered remnants of the Old World’s failed political theories and experiments found a fertile new home in America, rather like kudzu; and are overrunning the native political tradition?

  20. David Habakkuk says:

    A few thoughts to throw in to this fascinating discussion.
    I don’t think Frank Newbauer’s point about language is minor at all. It parallels what the great French historian Élie Halévy said in his presentation on the ‘era of tyrannies’ in 1936:
    ‘I shall say only a little about the reasons that led me to prefer the word “tyranny” to the word “dictatorship.” The Latin word “dictatorship” implies a provisional regime, leaving in tact in the long run a regime of liberty which, in spite of everything, is considered normal; while the Greek word “tyranny” implies a normal form of government, which the scientific observer of societies must range alongside other normal forms — monarchy, aristocracy, and democracy.”
    There are I have no doubt complexities in Greek — and modern — uses of the word ‘tyranny’ that Halévy left out, but he was addressing very directly the kind of thinking exemplified by Carl Schmitt — where the ‘state of exception’ is taken as the normal condition of political life.
    The question as to whether a ‘state of exception’ exists at a given time is a question about the adequacy of systems where the freedom of the executive is limited by constitutional constraints to cope with the problems faced by a given polity at that time. But adequacy or inadequacy is relative — to establish that constitutional constraints are undesirable one needs to establish not only that they may inhibit useful action, but that their removal is not a cure worse than the disease.
    In relation to the external problems of interwar Germany, the unconstrained executive which Schmitt advocated managed to turn what was actually a rather favourable strategic situation into total disaster.
    However aggravating to German susceptibilities it may have been, the Versailles settlement left Eastern and South Eastern Europe a patchwork of weak — and often mutually suspicious — states, with Russian power pushed back further than it had been for generations. This created ideal conditions for a patient long-term strategy which would have consolidated these areas as zones of an informal German hegemony.
    Certainly, Stalin was attempting to turn the Soviet Union into a military superpower. But the German Foreign Office Soviet specialists had a relatively sanguine view of the threat. They doubted that Stalin would succeed in his bid to ‘catch up and overtake’ the traditional European powers. On the specifically military aspect, if Stalin was so distrustful of his generals that he largely liquidated what, along with the German, was the intellectually most sophisticated General Staff in Europe, the German Foreign Office Soviet specialists were not complaining.
    Meanwhile, the possibility of an effective coalition of potential adversaries against Germany was remote in the Twenties and early Thirties. As regards Britain and Russia, intense ideological hostility was superimposed upon antagonisms dating from the imperial era. What however was always liable to create such a coalition would be the attempt to go beyond an indirect hegemony in Eastern Europe, and conquer ‘Lebensraum’ by military means. This was inherently liable to make the Soviet Union and Britain, at least temporarily, sink their differences — particularly as it would make the survival of the British Empire dependent on German goodwill.
    Rather than accepting that Germany was neither capable of obtaining, or needed to obtain, total invulnerability, Hitler made a bid for such invulnerability — and ended up creating the improbable coalition of the Grand Alliance, which ensured the total destruction of German power.
    One may doubt whether the contemporary enthusiasts for ‘states of exception’ in the United States will achieve catastrophes anything like as spectacular as that achieved by Hitler — but they have already done a great deal to squander the very favourable position in which the United States found itself in 1989.
    A caveat relating to the role of monarchy in all this, partly provoked by Clifford Kiracofe’s reference to Sir Robert Filmer. Because the creation of America is so bound up — in different ways — with seventeenth and eighteenth century arguments about absolutism, when Americans refer to ‘monarchy’ they commonly imply absolutism.
    But the making of absolutist claims on behalf of monarchy — as in Filmer — may in a longer perspective be a rather ‘modern’ matter. In the classic study Kings and Councillors he published in 1936, the notable twentieth century anthropologist and student of kingship A.M. Hocart had some pertinent things to say:
    ‘The common notion is that the doctrine of Divine Right, as held by the extremists of the seventeenth century, was the last kick of medievalism. That is the opposite of the truth: it was the first effort of the modern spirit. In the Middle Ages allegiance was conditional as it was in Fiji, ancient Ceylon, Jukunland, and other homes of divine kingship.’
    It may be I am biased here by a conviction that constitutional orders are made sustainable by certain kinds of reverence — and the belief that in the British context, today’s very ‘unabsolutist’ monarchy is a much more important part of the constitutional order than is commonly realised.
    But I do think there is a lot to be said for following Frank Newbauer and describing the kind of political system in which people like Andrew Card believe as tyranny.

  21. TomB says:

    Col. Lang wrote:
    “If it is Carl Schmitt of whom you speak, I am truly appalled.”
    Why? From what confused ponderer said Schmitt was just saying that it’s impossible to anticipate in every detail what dire eventualities a society might face and so is impossible to pass detailed laws governing how same must be addressed. Therefore he said there had to be a kind of … lawless space where a leader or etc. could take what action was necessary to address the eventuality.
    Seems to me there’s some logic there, if a spectacularly poor choice of terms given that he simply seems to have meant a sphere where conventional *detailed* laws don’t exist. (At least and again as confused ponderer described him)
    To me then looking past the poor word choice to the fundamentals Schmitt did identify a real problem, with only flawed solutions being possible. And it further seems to me our Constitution did about as good a job as possible addressing same by firstly creating an office and officer which can take quick action in emergencies (the Presidency), and then just *generally* assigning powers and duties and etc., such as with its simple if Delphic statements saying that the Executive power (whatever that is) will rest with a President, and that the President is the Commander-in-Chief of the armed forces.
    Not perfect, but not bad given it’s worked for 200+ years now which ain’t chopped liver in historical terms for regimes. And with the room this provides to argue that these phrases give the Executive vast vast powers, I frankly don’t see why an Addington or etc. would *need* a Schmitt to posit same. The constitutional scholar Edwin Corwin years ago well articulated the troubling logic of the constitution which is that the power to wage war necessarily implies that the power is also given to do whatever is necessary to wage war successsfully, and that’s saying alot. And there is some logic there.
    So I dunno about this Schmitt business having such an effect on Addington, et. al. Maybe there’s some evidence of same out there, although I haven’t seen it. (Nor, admittedly, looked for it.) But I doubt that even if it exists it’s anywhere near as overwhelming as the evidence showing that even sans Schmitt or anyone else for that matter the Framers provided all the vagueness and ambiguity needed for people to argue the reach of a President’s powers starting from Day One after the Constitution was ratified. And in the overwhelming main, I doubt that what we’re seeing today is anything other than just a continuation of that argument, and nothing really new.
    (And that, it seems to me, is as it should be. Of course the Framers couldn’t anticipate everything, and so their answer was that each future generation had to make at least some of its own judgments and decisions. And it further seems to me that intellectual honesty requires one to consider conceeding that by not howling for Bush’s impeachment or for laws restraining him or etc., the great mass of the citizenry today have simply said that they think Bush and Addington’s ideas about Executive power are just peachy. And given the citizenry’s history of liking Teddy Roosevelt, and Wilson’s actions against “subversives,” and FDR, and Truman’s going into Korea, it seems to me that’s a pretty strong and maybe even unassailable argument, no matter how much that might make us dissenters into cranks.)

  22. Spider Rider says:

    The lot of them, Cheney’s neocons, are, to me, insane.
    Not only are men like Andrew Card wholly incompetent, as they cannot execute the responsibilities of their jobs in any meaningful way, they have taken it upon themselves to TRY and restructure the US government.
    They’re laughable, not even fierce, laughably incompetent, in a dream world of omnipotence, and sequined dresses. Oh, the glamour…
    Why do we put up with it, treat them as if they’re anything more than children, play acting, as children will do?
    Because that is what they are, underneath it all, children, little girls, playing dress up.
    They lost the war, this has hurt the nation, an incredibly difficult realization.

  23. wisedup says:

    for TomB, I believe you are confusing the system for the results. Certainly no body of law can cover all eventualities. That is why we keep passing new ones. But to state that because no existing law counters the current “dire” situation the executive has full power to supersede the constitution is an appallingly wrong conclusion. Commander in chief does not equal owner, we own the armed forces, not them.
    Do you really think that the non-existent majorities of voters have made this situation into an “unassailable argument”?
    Please tell me you wrote in haste.

  24. Andrew Card was feted at his retirement as Secretary of Transportation under President H.W.Bush as the “Master of Disaster” in Hurricane Andrew. John Sunnu’s pick as FEMA Director (Director Stinckney) was not up to the task in anyones judgement. Upon arriving in Florida to preside, it is reliably reported that Andrew Card’s first words were something like “Where is my desk and oriental rug.?” A man that knows his priorities. Cheesburgers certainly fit in with the Lord Privy Councilor duties. And by the way despise what some believe as to FEMA’s Andrew performance, Bush did win Florida in 1992. As we approach the time when the Bush 43 era closes permanently it will be fascinating to watch the reviews of the talent he (Bush)surrounded himself with during his Presidency. Their does seem to be no doubt his Presidency had failed as of 9/10/2001 so now the question for the ages is what was achieved afterwards and who was responsible for that achievement or lack thereof. As to some of the posts above, there is no doubt that legal scholars have differend as to the scope of Presidential authority or action when the very essence of the STATE is threatened. Did 9/11 threaten the very essence and existence of the United States? Personally, I don’t believe that for one moment.

  25. condfusedponderer says:

    your concept of inherent powers in wartimes, much like Schmitt’s state of exception, runs into a problem when you think of a very long war, or ‘perpetual war for perpetual peace‘.

  26. TomB says:

    wisedup wrote:
    “But to state that because no existing law counters the current “dire” situation the executive has full power to supersede the constitution is an appallingly wrong conclusion….
    Please tell me you wrote in haste.”
    Well I don’t think I wrote in haste but certainly wrote poorly given that you gathered from my remarks that I believe the Executive has any right to ever supercede the constitution. My (attempted) point, to steal someone else’s famous description of it, is that as regards foreign affairs especially (but otherwise to a lesser degree too) the constitution is so laconic concerning what the Executive’s powers are that this alone has provided more than enough room for people to argue that they are very very great, or very very limited.
    And what I further suggested, perhaps somewhat contrary to what [C]onfused ponderer and some other said, is that I’m not sure that what we are seeing with Bush now is not very different (if at all) from what has happened in the past almost since the start of the Republic. (Generally speaking.)
    (Or, as Dorothy Parker put it, the problem isn’t that it’s one damn thing after another, it’s that it’s the same damn thing over and over.)
    You further wrote:
    “Do you really think that the non-existent majorities of voters have made this situation into an ‘unassailable argument’?”
    No, what I think and tried to write was that at some point, regardless of one’s regret or even disgust that it might be so, there’s a certain history that has to be taken into account. And that history is a long one of what I’d regard as pretty extreme Presidential activism which has been generally accepted and even applauded by the citizenry.
    And this, to me, is rather important. I think that to a degree—indeed to a very very great degree—what the public’s understanding of the constitution is and means is just as important if not moreso than, say, what nine old goobers on any Supreme Court think. I.e., the *civic* understanding of the constitution.
    And as a vast admirer of the constitution this is why it so heartens me that we see the constitution so oft-mentioned and fiercely cited during these times. It is because it *is* so respected.
    But on the other hand as much as I might wish it otherwise, I have to admit that there’s a lot of historical evidence to say that the people—that “civic” understanding—do like Presidents who take their power very very far indeed.
    As someone here noted perhaps the paradigmatic instance is their swallowing, without any gulping at all really, of Truman sending troops to Korea without even a whiff of Congressional consultation much less approval. But similar history certainly goes back farther than that, all the way back even to Jefferson at least just deciding to buy the Louisiana Purchase.
    And here’s an incident involving President Cleveland that I like since it challenges my prejudices so much, but also because it so illuminates the constitution: When the jingos were whooping it up for war with Spain President Cleveland was having none of it. He wasn’t an imperialist at heart it seems. And so at one point what did he do but declare that if Congress declared war on Spain he simply would refuse to fight it, saying “I will not mobilize the Army.”
    Now, what do we say about that? What if Congress declared war on Iran and Bush said the same? Would we really really be condemning him as an unconstitutional tyrant with all the strong argument one could make that he was hardly doing what the constitution says in terms of the Executive “faithfully executing the laws”?
    Or would we suddenly have a deeper appreciation for what seems to me the fact that the Founders did not build some … machine, with a fixed and detailed blueprint of what each part was to do and was limited to? Instead it seems to me they said to us “you decide, as time goes by, politically.”
    So I guess what I’d say is that while it’s perfectly fine and indeed maybe even a duty to be saying whether we think Bush has acted “lawlessly”/unconstitutionally, we might pause to consider whether we aren’t wrongly analogizing the constitution to some machine whose blueprint answers every question. Because, again, I think what the blueprint says instead so often is merely “you decide, as time goes on, each generation for itself, politically.”
    Talleyrand once said of something that it was “worse than a crime, it was a blunder.” And I think there’s a fine historical sensibility to this in that when we judge leaders of the past we don’t tend to do so on the basis of whether they were always scrupulously “lawful.” After all, if we did, what would we say about Lincoln, or FDR?
    Instead, and with no little sense, we judge them more broadly I think. And as to Bush, while I do think he has acted unconstitutionally as to this or that, I’m not sure that the extremity of same is anywhere near as great as the monumental *political* blunder he’s witlessly committed in Iraq and in various ways in his “war on terror.”
    Ergo, sorry to have been so opaque, I guess that’s just *my* constitutional infirmity.

  27. wisedup says:

    round and round the mulberry bush Tom trots, and what do we end up with?
    “while I do think he has acted unconstitutionally as to this or that, —- the monumental *political* blunder (of Iraq)”
    Not a very impressive line in the sand is it. Looks like habeas corpus needs to be politically decided year by year. Looks like domestic spying needs to voted on. Or not, considering that we like our Prez rough and tough.
    “history must be taken into account” indeed it must as in sic semper tyrannis
    BTW, I, and I hope many others, take strong exception to the rather casual Iraq throwaway. It seems that Iraq is not an unparalleled military screwup, it is not a first-rank human tragedy, it is a political blunder. Might make McCain’s job slightly harder then?

  28. Clifford Kiracofe says:

    Sidney Smith,
    A close read of Schlesinger’s book a couple of years ago left me with the distinct impression that he very well knew Schmitt. His emphasis on the Nixon Administration’s sense of a state of exception jumped out at me. So while not mentioning Schmitt directly, I think it is implicit.
    Thanks for your kind words. I can recommend Victoria Clark’s Allies for Armageddon The Rise of Christian Zionism (New Haven: Yale Univesity Press, 2007) as an excellent recent addition to the literature. A British journalist, she does a fine job investigating this subject. Other outstanding books are by Rev. Stephen Sizer and Rev. Don Wagner. Sarah Posner’s God’s Profits. Faith, Fraud and The Republican Crusade for Values Voters (PoliPoint Press, 2008) is provocative to say the least. She is also an investigative reporter who dug right into her subject. And very provocative also is New York Times journalist Chris Hedges, American Fascists. The Christian Right and the War on America New York: Fress Press, 2006).
    I would point out that the foreign policy guidance for the leading Christian Zionists comes from the Neoconservative circles, Frank Gaffney’s Center for Security Policy as one important example. Frank is very able and very industrious.
    David Habbakuk,
    Most interesting observations, particularly the reference to Hocart which I will follow up.
    Over here absolutism was often referred to as “arbitrary” government. This could apply to monarchs and to republics but did not mean Americans disliked all monarchs. In Early Colonial America, Queen Elizabeth was looked upon with the greatest favor. Without her, quite simply, we would not be here, the naming of Virignia commemorating this.
    1. My old Oxford Universal says of the word arbitrary: “4. Unrestrained in the exercise of will, absolute; hence, despotic, 1642.” Here the language/usage emerges from the English Civil war era and even earlier I believe.
    2. A distinction between “tyranny” and “dictatorship” can be made. With respect to tyranny, I would note Professor Percy Neville Ure’s The Origins of Tyranny(Cambridge University Press, 1922).
    With respect to Rome, I would note William Stearns Davis, “The Influence of Wealth in Imperial Rome (New York: Macmillan, 1910).
    3. The politics of Colonial America, of course, are rooted in English politics. Thus, both the Country and Court parties were represented over here by various individuals. Too often this is overlooked.
    I would note in this regard the study by Alexander Brown (of Nelson County Virginia) English Politics in Early Virginia History (Boston: Houghton, Mifflin, 1901) among his other fine books. He writes from a Country Party perspective, something rather lost today.
    A more recent study provides background: Perez Zagorin, The Court and the Country. the Beginning of the English Revolution of the Mid-Seventeenth Century ((New York: Atheneum, 1970).
    4. Arun is correct to raise the issue of the penetration of US political culture in the 20th century by twisted alien continental influences such as Nietzsche, Schmitt, and Leo Strauss.
    Per Strauss, the classics have been taught in the United States at the college level since the founding of Harvard in the 17th century. The Strauss cult is just that…and an odd and exotic one indeed.
    5. Per Rumsfeld and Cheney, it is my understanding that one of their key “Straussian” gurus in the 1970s/Ford Administration and forward was Robert A. Goldwin, presently at AEI for whom see,filter.all/scholar.asp
    5. In Straussian parlance, Card would fit into the “gentleman” category rather than into the circle of “philosophers.”

  29. TomB says:

    confusedponderer wrote:
    your concept of inherent powers in wartime….”
    Well I see I wrote poorly here too in that I at least didn’t mean to talk about any “inherent” powers, other than I guess what “inheres” in the vague phrases such as “the Executive power’ or “Commander in Chief.”
    But with that said I think your focusing on the extreme difficulties involved in perpetual or even very long wars is just absolutely, gob-smackingly right. Because with declaring a “war on terror” that’s exactly what this buffoon has gotten us into and I think it’s such a stupid, terrible thing so as to make a mere “blunder” seem a mere trifle, doesn’t it?
    Again, absolutely spot on in my estimation. Stupid, insensible, incoherent …. It really brings home the effect of the Colonel’s recent point about the dumbing down of things. When you’re functioning at an 8th grade level that’s the kind of thing you do, isn’t it? Just blurt out that you’re declaring war on a mere but ineradicable tactic. And then take actions and follow policies to grievously insult and degrade the hundreds of millions of people whose only way of retaliating is via that very tactic.
    It’s just beyond words.
    And, again, sorry for writing so poorly.

  30. Sidney O. Smith III says:

    Respectfully written questions from the juryroom to counselor TomB:
    What’s the point of your argument? Are President Bush’s actions lawful under the US Constitution?

  31. TomB says:

    In response to a post of mine wisedup wrote:
    “BTW, I, and I hope many others, take strong exception to the rather casual Iraq throwaway. It seems that Iraq is not an unparalleled military screwup, it is not a first-rank human tragedy, it is a political blunder.”
    Well I guess I plead guilty to this charge given that, for want of a better word I meant “political” in the broadest sense and didn’t so specify. (As in … “WWI was the result of political blundering.”) But as my reply to confusedponderer made clear (posted before your message came up) I don’t think I’m any too soft on Bush and indeed think the most accurate description of him is that he’s perhaps the most destructive President we’ve ever had. Beyond that you and whomever can take whatever exception you wish to my softness on Bush.
    You also criticized my post and point as follows:
    “Not a very impressive line in the sand is it. Looks like habeas corpus needs to be politically decided year by year. Looks like domestic spying needs to voted on.”
    Except that … all your examples just support my point, dude. As to the habeas thing, it wasn’t Bush alone as the recent Sup. Ct. decision made clear, it was with the full connivance of Congress that there was an attempted denial of habeas. And as to the domestic spying, Congress has not only not impeached Bush over same, and has not only refused to merely censor him over same, but has actually institutionalized what he’s done and is now indeed in the very process of granting immunity to those who helped him.
    Not that Congress’ connivance makes what he’s done okay, but it does go a long way to make it constitutional courtesy of Justice Stone in the Steel Seizure case.
    Thus I stand by my point which essentially was that one can still indict Bush to almost any degree you want without putting all your rhetorical eggs in the “he’s unconstitutional” basket.

  32. TomB says:

    Sidney O. Smith, III wrote:
    “Are President Bush’s actions lawful under the US Constitution?”
    Hi Sidney. Of course that generality is not the way things work technically, which is why people aren’t charged for things like “having lived a dissolute life.” But so long as my answer is taken in the same very general spirit as your question I’d say what I suspect you’d say too given your previously expressed agreement with Justice Stone’s sensible observation in the Steel Seizure case. And that is, in the main, and as to the really big things, you bet, I think his actions have been constitutional. Congress has either authorized ’em or in other ways expressed acceptance of them and as Stone said, in such circumstances the power of a President is at its absolute zenith. And as many if not most of the things we’re talking about here concern Iraq or the so-called war on terror, we are then talking about the absolute full war powers of the entire U.S. government.
    That’s not saying I like it, and I’d absolutely agree that if Bush had tried damn near anything he’s done without prior Congressional connivance or its post hoc acceptance it would be unconstitutional as hell. But that’s simply not what’s happened.
    And for anyone who thinks maybe the courts or the court of public (civic) opinion don’t regard the war power as all that expansive, I just remind ’em that on 9/11 Bush/Cheney were trying like hell to shoot down absolute planeloads filled with American citizens and absolutely no one that I know of has said that if they succeeded their actions would have been held unconstitutional. And that of course was the Prez. exercising his war powers all on his own, without even a scrap of prior Congressional authorization I don’t think. So obviously it seems that most people regard what a President can do with his war powers as very very great indeed.
    Again, this is all very general, and I’d hasten to say that esp. with his non-FISA compliant wire-tapping (not to mention things we might not even know about yet) I’d say hell yes he’s acted unconstitutionally. And I don’t even care what the Supreme Court might ever say to the contrary and regardless of whether our lickspittle Congress has seemed to approve of it after the fact.

  33. peg says:

    after reading about Mr Card, i will really feel bad for the students at Univ of S. Carolina if this comes true:
    Backers push former White House chief of staff for Univ. of South Carolina president’s job

  34. TomB says:

    One thing I forgot to push is to get your folks’ reaction to that kind of thing I mentioned with Grover Cleveland because it seems such a toughie to me:
    I.e., what if next years’ Congress declared war on Iran and President Obama said he’d refused to fight it? Especially in light of his constitutional duty to “faithfully execute the laws” but in light of everything else it says too, do you think he’d be acting unconstitutionally, or not?

  35. Andy says:

    This is an interesting discussion with regard to constitutionality.
    My sense is that often the question of constitutionality of actions taken by Presidents or Congress is just as much determined by inaction as by action.
    For example, if Congress passes a law and the President signs it, is that law constitutional? It is constitutional unless and until the Supreme Court says it isn’t. As we have seen many times, there are laws that can exist on the books for many years before they’re suddenly declared unconstitutional, just as there are rights that once were not constitutionally guaranteed, but later become so through SCOTUS decisions.
    Similarly, when a President takes some unilateral action and cites authority inherent in the Constitution or existing law as justification (as Bush and many other Presidents have done), is that action constitutional? In my mind, the same principle applies – it’s technically constitutional until it is found otherwise by the SCOTUS.
    I’ve said this before here in this forum: The problem is not just, or even primarily President Bush. The founders expected there would be executives that would push the boundaries of executive power and that’s why the other two branches have their own set of powers that can constrain Presidential ambition. The salient point here is that Congress not only has not utilized those powers to constrain Bush, but through the AUMF provided him with wide authority that he’s able to base his legal and constitutional justifications on. So the problem here, in my mind, is not the strength of the executive, but the weakness and acquiescence of Congress. The SCOTUS has constrained these ambitions somewhat, but the courts take time and may not address, or be able to address, every issue.
    For whatever reason, Congress has not even attempted to modify or repeal the various AUMF’s, nor has it used its “power of the purse” as a tool to check the Presidency.
    What it has tried – and miserably failed – to do is pass a constitutionally dubious “timetable” legislation that essentially orders the President to withdrawal troops while at the same time the leadership has purposely blocked any alternative to that legislation from coming to the floor. Congress is therefore complicit by its inaction and so, in a general sense, is therefore legitimizing Bush’s actions. I suspect that at some point the pendulum will begin to swing back, as it often does, and Congress will remember its purpose.
    In a related matter, confusedponderer mentions the issue of long or “perpetual” war. I would only suggest that under our system of government war can only be perpetual through the collusion of Congress and the executive. Despite Congressional inaction up to this point, I don’t think this war will be as “perpetual” as some might believe. Sooner or later we will get an executive and/or Congress who will end it or at least significantly modify its scope and objectives.

  36. wcw says:

    A quick aside: like the Catholic Church, the Boy Scouts of America do not let go that easily: the conceit is, Eagle Scout rank is held for life.
    Full disclosure: Eagle Scout. Me, I just liked backpacking in the Sierras.

  37. Sidney O. Smith III says:

    Counselor TomB
    Must say you cite authoritative sources with great dexterity and range. Besides mentioning persuasive legal treatises, cases, and texts, you are, as far as I am aware, the only one who has called on the wit of Dorothy Parker to illuminate a trend in constitutional history.
    As for the Grover Cleveland scenario: if such unfolded in today’s world, the likelihood seems overwhelming that the US House, in response, would draft and then pass articles of impeachment. One would hope that both the passage of the articles as well as the deliberations of a Senate trial would garner at least a passing fancy by those of the civic venue, e.g. the people. Odds increase of a constitutional collapse, so, as referenced early, maybe we need to take another look at the advantages of a parliamentary system. Bagehot’s work beckons, with a hat tip to Habakkuk’s thoughts on the divine right.
    As for Justice Stone’s view of the Steel seizure cases, you will have to refresh my memory, as I have no recollection of explicitly endorsing any of his views. That said, I deeply respect Justice Jackson’s reasoning in the Youngstown case and find the tripartite test persuasive, as it seems to satisfy the presumption that, to use his words, “Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.”
    That said, I sometimes cannot help but question if the Youngstown case was intentionally limited to decisions effecting domestic policy only. Yes, I know about Robert’s citation of Youngstown in Medellin. But the Youngstown court appeared to have wanted to limit its application.
    And just as you are intrigued by the scenario of a US President refusing to implement a Congressional declaration of war, I am fascinated by a hypothetical situation that would further elucidate, if not challenge, the first category of Jackson’s test, particularly in the realm of foreign affairs. As you are well aware, Jackson opines that the President’s authority is at a maximum if he acts pursuant to an expressed or implied authorization of Congress. But what if the authorization of Congress is, in fact, unconstitutional?
    Undoubtedly you know where I am headed with this line of reasoning. If a Congressional act authorizing President Bush to use military force is in fact unconstitutional, then the analysis to determine the constitutionality of the executive order shifts from the first to the third category of Jackson’s classification or, if you prefer, standard of review. Assuming that the third classification is apropos when reviewing the constitutionality of the executive order, then presidential power is at its “lowest ebb”. The presumption therefore is that President Bush acted unlawfully on what you have described as “the big things” . And with that, Andrew Card’s comment is “overruled.”
    Finally, I apologize for not being more specific in the earlier post with my question re: the legality of actions taken by the Bush administration. My fault entirely. It just has been my experience — be it what it may — that questions from the jury room during deliberations are oft open-ended and at least ostensibly seem unrelated to the issues joined. But, at least from what I can tell, those type of rough hewed questions occasionally act like some kind of Damocles Sword above bench and bar. Judges frequently spend an entire lunch hour making sure they do not give a response that will lead to a reversal!
    So in that spirit, I must admit I have more jury questions to pose simply out of respect for your high octane analysis.
    1. Does probable cause exist to indict Addington as a war criminal?
    2. If so, then according to ABA ethical standards, is an attorney obligated to state publicly that Addington has broken the law?
    3. Did the Southern states have a Constitutional right to secede from the Union?
    Last question simply comes from having tried jury trials in the South. Simply thrown in as a light hearted joke. Well…in this day and age…I don’t know.

  38. Andy says:


    But what if the authorization of Congress is, in fact, unconstitutional?

    I cannot conceive of a situation where a Congressional authorization for war could ever be unconstitutional given how clearly Congress’ role in such matters is spelled out in the Constitution itself. Could you provide an example for such an unconstitutional declaration?

  39. Wendell says:

    Between Scott McClellan and this quote (and posture) from Andrew Card, one can see a part of the future: an absolutely vicious flame war about the meaning–and the rationale–for the Bush 43 presidency.

  40. TomB says:

    You know, I think that anyone would be hard put to improve on your thinking through of the Grover Cleveland scenario I noted of a President refusing to go to a war declared by Congress. Just as the business with Clinton showed that impeachment is really much more of a political than a legal thing (if indeed not totally political), the most basic question of what each branch’s powers are have a lot to do with what the civic understanding of the constitution is. And *that* would seem to “fluctuate” too depending on the circumstances as you noted the legal issues do. I.e., wouldn’t just depend on the civic understanding of the constitution, but on what war some future Cleveland decided not to fight too.
    As to the Youngstown case, first my apologies for confusing the thing by writing “Justice Stone” for Justice Jackson. Of course in referring to the idea you had seemed to agree with before I meant Justice Jackson’s in Youngstown, which is the proper name of the Steel Seizure case. I don’t know why I was thinking of Stone.
    In any event however I’m a little doubtful about your anyway incisive questioning of whether Justice Jackson’s opinion in Youngstown was intended to be limited to domestic matters. In the first place remember that case itself *was* to no little degree concerned with foreign affairs in that Truman had seized the steel mills in the immediate wake of sending troops to Korea expressly because of a concern that the steel worker’s strike was going to cripple our defense industry. (And remember too that even cases that seem to have only domestic effects can still clearly involve matters of foreign affairs. Recall for instance the Korematsu case concerning FDR’s interning of the Japanese Americans in WWII.)
    Secondly, just the logic of Jackson’s idea doesn’t seem so limited. All he did, as you recall, is simply say hey, as a *general* matter, one can just basically regard any Presidential action as falling into one of three categories. (When they act with the approval of Congress, when they act in defiance of Congress, and when they act where Congress has been silent.)
    And indeed it might even be said that this analysis is especially relevant to foreign affairs given that this is the realm in which the President’s powers are so vague. After all, in domestic affairs his powers would seem to be to either sign bills or not, and then enforce the ones that become law, period, no? But in foreign affairs, who the hell knows what the term “Commander in Chief” means in all its fullness?
    As to a Prez. refusing to fight a war “unconstitutionally declared” by Congress, I think I’m with Andy in the second of his fine posts in that I have a hard time seeing what would constitute same. But your deeper point certainly seems to me to be well taken in that you bet, a President’s powers may be, as Jackson noted, at their very apogee when he acts with Congress’ approval. But Jackson also noted that his scheme was just a *starting* analytical point, and that simply because Congress has approved something doesn’t absolutely determine things. Just like the recent Guantanamo ruling: Congress approved Bush’s attempt to go round habeas too, but that didn’t end the Court’s analysis and didn’t prove enough to determine the thing and in fact proved insufficient. So you are absolutely right as to that deeper idea I think.
    As to your taking of this to the point of saying that maybe we should therefore *presume* all congressional acts to be unconstitutional however, while I think it’s a clever attempted formulation I think it does kind of turn Jackson’s point on its head. (And it certainly conflicts too with the idea Andy posited in his first post about Presidential or even Congressional actions having at least an *effective* presumption of constitutionality, so you’ll have to fight it out with Andy as to that. All’s I would say is that it is pretty standard judicial boilerplate to say that acts of Congress do at least start from a presumption of constitutionality.)
    As to your damnably hard questions, I simply don’t know enough about Addington’s actions in particular or even about the war crimes field to feel that my response as to the specifics would be worth much. I would say that I doubt that Addington or any of the other usually mentioned suspects are ever going to be prosecuted under any U.S. law relating to war crimes, simply because I don’t see where any future President is going to perceive it in his or her interest to tell his or her Justice Department to do so. But I would otherwise hasten to say that if I were Addington or Yoo or any number of others I’d be damned careful about my international travel. The Abu Ghraib thing, the “enhanced interrogation” crap from Guantanamo and etc., I wouldn’t be surprised if there aren’t some sharp-eyed people in the Hague and elsewhere who ain’t looking at that stuff real hard. The Abu Ghraib stuff in particular seemed to me to be an absolute sham stopping at this or that low-ranking person. And I seem to have read something about this very aggressive Spanish prosecutor out there who takes these war crimes things very seriously. (I think he was the guy who tried to put Pinochet in the dock, wasn’t he?)
    As to the ABA standards, no, I don’t think that a mere belief that probable cause exists to believe another lawyer has broken a law obliges an attorney to publicly state that that person has in fact broken the law. (If for no other reason than the worries about being sued for defamation.)
    As to whether the South’s secession was constitutional; hilarious, but in a way really really deep too. (And an issue about which I suspect there’s some actual, facinating literature, which if you get to I’d love to hear about.)
    After all, to engage in a little offhand riffing, the *states* had to ratify the constitution, didn’t they? And the Articles of Confederation that preceeded the constitution was a *voluntary* association of states too, right? And as Madison said in the constitution’s Preamble (showing just how unbelievably smart he was, albeit for different reasons) we weren’t forming a *new* union but only a “more perfect one,” true? So when they ratified the constitution of this “more perfect union” who said that their ratification was irreversible?
    I suspect any formal, technical, “legal” argument might start with the observation that the constitution also says it was being established not by the states but by “We the *people*.” But of course much of the real answer might also simply be … because Lincoln said it was irreversible and because it’s the victors who write the history.
    And, you know, speaking of that, the question of who has written the history of foreign affairs seems to me to be very relevant too.
    After all, in the main that history is all about how allegedly successful the U.S. has been in its international adventuring and activism and “engagement” and etc. And of course you often see the interventionist of the day claiming some sort of uber-patriotism about this.
    But from a historical standpoint it seems to me this is high irony indeed. And this is because I think one of the biggest reasons the constitution is so mute about foreign affairs is simply because our Founders never thought they’d be much of a problem. In fact it might be said that the last thing they ever wanted was for the U.S. to have a foreign “policy” at all.
    They had seen the chronic diplomatic game-playing of the Europeans of their day, and their chronic wars, and that was the last thing they wanted any part of. That’s why you see so many quotes from the day about wanting to avoid foreign “entanglements” and wanting “alliances with none, free trade with all” and America not about slaying international “monsters” and etc., etc.
    Certainly there was more than a little naivete there, and also some hypocrisy too given the way they had played the French off the Brits during and after the Revolutionary War.
    But I think lots of it was nothing other than sheer cognitive dissonance: They liked to *think* that we would always be “isolationist.” (For want of a better term.) So they simply wrote the constitution unconsciously ignoring the idea that that’s not what we might always be.
    Kind of a shame we didn’t and don’t pay more attention to their ideals, it seems to me, but that’s just my prejudices showing.

  41. Sidney O. Smith III says:

    Counselor TomB and Andy
    Thank you for the comments. Absolutely fascinating, and I agree with much.
    But first, my apologies as I didn’t articulate my earlier thoughts with enough precision. ‘Tis the norm, unfortunately. Once had a high falutin’ attorney tell me that I didn’t think and act like a lawyer. At the time, I could not tell if the remark was a compliment of the highest order or the most unkindest cut of all. Still don’t know.
    So I freely admit that I need to understand more fully and with much greater specificity the internal coherence that guides both of your legal analyses. I say that because I thought my last comment delineating the applicability of the Youngstown opinion as well as Jackson’s tripartite classificatory scheme accommodated your insights as well as those of Andy.
    So let me back up and refer to a couple of earlier comments you (TomB) have made in this thread. From what I can glean, you have classified Bush’s relevant actions into two categories — the really big things, meaning presumably the decision of Shock and Awe and then a second category of the smaller (less significant?) acts that have flowed out of this mother of all executive orders.
    As to the big decision, you have concluded that Bush’s actions were constitutional and lawful, as his presidential power at the time was at its zenith due to Congressional authorization. But as for non-FISA compliance, you have stated that he acted unconstitutionally, regardless of any action taken by Congress to authorize the relevant executive order.
    Here’s what you wrote as to the big decision: “And that is, in the main, and as to the really big things, you bet, I think his actions have been constitutional. Congress has either authorized ’em or in other ways expressed acceptance of them and as Stone said, in such circumstances the power of a President is at its absolute zenith.”
    And here is your conclusion as to Bush’s “lesser” actions that have flowed from his Congressionally authorized big decision. “Again, this is all very general, and I’d hasten to say that esp. with his non-FISA compliant wire-tapping (not to mention things we might not even know about yet) I’d say hell yes he’s acted unconstitutionally. And I don’t even care what the Supreme Court might ever say to the contrary and regardless of whether our lickspittle Congress has seemed to approve of it after the fact”.
    At this juncture, I need your help. On one level, you have concluded that Congressional authorization lays supreme in determining the lawfulness of an executive order to go to war. On another level, you have concluded that Congressional action is irrelevant at to the constitutionality of an executive order that flowed out of this big decision to go to war.
    Questions abound. What type of legal reasoning do you use to distinguish the two levels of judicial scrutiny? Are you suggesting that that the greater the impact of the executive order, then the greater the presumption as to the lawfulness of Congressional authorization? Worded differently, if the executive order initiates military action abroad, then does a Congressional authorization receive some kind of presumption of constitutionality? If so, why?
    As you can tell, the focus I am suggesting is no longer on the constitutionality of the executive order but instead on the lawfulness of the Congressional authorization. This shift takes the analysis away from Jackson’s test, as the issue in Youngstown was the constitutionality of a US Presidential action based an executive order — one that, to use Jackson‘s words, “vastly enlarge(d) his mastery over internal affairs”. The Youngstown court did not look at the constitutionality of a Congressional authorization because it was not an issue before the court.
    So, at least on that level, I am yet to see how your classificatory scheme melds with that derived from Jackson’s opinion. I am not arguing that the Jackson test is obsolete. I am simply am suggesting that another classificatory scheme is needed as the judicial issue here, at least as I see it, differs from that which was before the court in ’52.
    In one sense, one could argue, I suppose, that such a classificatory scheme in this instance inverts that of Jackson because the focus of the court is on the constitutionality of Congressional, not executive, actions. But it certainly can rely on the same rationale. But when following this logic, one should rule that the greater the impact of the executive order, then the greater the judicial scrutiny as to the lawfulness of the underlying Congressional authorization. So, for example, when the executive order is one to go to war — the big decision — then the presumption as to the constitutionality of the Congressional authority is at it’s “lowest ebb” and demands the strictest of judicial scrutiny.
    From what I can gather, you seem to suggest the opposite. In fact, you may suggest that Congressional authorization for an executive order calling for US military action abroad is always presumed constitutional. But are you then suggesting that Congress can never act unconstitutionally on the “big decision”? Is Congress acting unconstitutionally when it, either expressly or impliedly, abrogates its duties and obligations as defined in the US Constitution? Does Congress always act perfectly on the big decisions?
    So I am just having a difficult time seeing how Youngstown controls. As I say, the focus I am suggesting is limited to the constitutionality of the Congressional authorization leading to the big decision. And by your own statement, the Youngstown case appears to have examined the lawfulness of an executive order that applies to your second category — one that came in the “wake” of the big decision to go to war in Korea, much like the executive order leading to the non-compliance with FISA. Here’s what you wrote about Youngstown: [I]n the first place remember that case itself *was* to no little degree concerned with foreign affairs in that Truman had seized the steel mills in the immediate wake of sending troops to Korea.” Looks like a second category issue.
    But is it possible that you reject the Jackson scheme as appropriate for determining the lawfulness of the lesser decision, as you write Bush acted unconstitutionally regardless of any Congressional authorization? It just doesn’t matter what Congress says or doesn‘t say as to non-compliance with FISA, as Bush’s actions are as unconstitutional as hell. But then you adopt the Youngstown scheme as to the bigger decision — the executive order to go to war.
    But the Youngstown court did the exact opposite. It applied the scheme to the lesser action only. It never developed a judicial classificatory scheme as to the constitutionality of the executive order leading to the Korean War (much less focus on the constitutionality of any Congressional authorization, either expressed or implied.)
    And at least according to Schlesinger, the Youngstown ruling had limitations, even when focusing on legality of executive orders. He wrote: “[n]either the majority nor even the minority saw the case as involving in any primary sense the President’s authority in foreign affairs.” (p. 144, 73 edition). So one can argue that it applies only to your second category of executive decisions (lesser decision flowing in the wake of the order togo to war) and not the first (executive order to go to war). In that case, either Schlesinger is right or you are right.
    So maybe I am just missin’ something really obvious. I don’t know. Heck, I thought you and Andy would have agreed with my classificatory scheme. I thought both of you saw much of the problem with our US foreign policy not with the executive branch but the feckless or (to use your knee-slapping description “lickspittle”) Congress. So I just was trying to shift the spotlight of judicial review to the legislative branch and then develop the appropriate standard of review for Congressional authority for the big decision.
    Sorry for running too long with this post. And as a Lady friend — who is a sharp attorney — has just suggested, if I spend more time with this issue this afternoon, I am going to find myself in her “twilight zone” to borrow a phase from Jackson. So methinks I better end it pronto, although I originally intended to comment on the question of whether or not 50 States have the constitutional right to secede collectively from the Union.
    Oh…one last thing for TomB… a legal question keeps percolating up, one which I have discussed with several others. Which do you believe more fully animates the administration of justice…moral courage or time-record sheets. If you gotta’ choose one, what’s yer’ choice?

  42. TomB says:

    Hi again Sidney.
    Seems to me the pith of your comments go to whether my previously expressed opinions as to the constitutionality of Bush’s actions conflict with Justice Jackson’s analytical framework in the Steel Seizure case.
    No doubt caused by poor articulation on my part, the difference is that unlike Jackson I wasn’t saying what I thought the law *should* be or how it should be analyzed in the abstract. I was just saying what I thought the *result* of such an analysis was.
    So no, I don’t think that the “less significant” the Presidential action the higher the scrutiny should be. I just think that with the “big” things Bush has done—invading Afghanistan and Iraq mostly—the *result* of damn near any analysis I can think of would be that same was constitutional. And indeed while Jackson’s analysis helps here, it seems to me it’s hardly needed given that Congress simply and clearly passed the authorizations for same.
    Now I understand you have a point as to whether such authorizations themselves may be unconstitutional, but I think you’re being too subtle for me on this. I can well understand, for instance a *politico-civic* argument that “gee, Congress’ declaration of war was … illegitimate, or even ‘unconstitutional’ in that it was corrupt in some way.” But in a more legalistic way I just don’t see what you’re driving at. The constitution gives Congress the power to declare war, period. Last I looked I didn’t see where it said they could only do so for certain reasons.
    Otherwise, that was a very shrewd observation you made about my opinion that, for instance, I think Bush’s non-FISA compliant eavesdropping was unconstitutional. I.e., that gee, how can I say that Bush invading Afghanistan and Iraq was okay because it was Congressionally approved, but then something *lesser* he did in furtherance of his war on terror wasn’t?
    And this was very shrewd on your part because I think it’s the exact same kind of argument I think Bush’s lawyers will make if push ever comes to shove on the matter. And in this regard I think they’ll especially cite the Congressional “war on terror” resolution that was given to Bush in the immediate aftermath of 9/11 which is very broad indeed and which contains wording which can be read to say that he can do almost anything in fighting that “war.”
    My contrary opinion however that his actions in this regard were not constitutional is not only based on what I see as the far more specific law that Congress passed on the subject—that is, the FISA legislation itself—but also then Jackson’s analysis again. That is, I don’t think that general “war on terror” resolution was meant to supercede the FISA legislation because in general and unless stated otherwise, the more specific a law is to a given situation the more the Courts sensibly view same as being controlling. And of course when it comes to wiretapping, FISA is dead spot-on specific, isn’t it?
    Plus it also struck me with this non-FISA compliant stuff that this is a perfect example of where, under Jackson’s analysis, the President’s powers are at their absolute perigee. I.e., where Congress has specifically *disapproved* of something a Prez. has done. Because after all FISA not only outlined the way to get wiretaps in national security matters, but then established actual *criminal penalties* for doing it otherwise.
    So I stand by my opinion on this, but know and admit that there are arguments on the other side such as you made. (So meaning, I guess, that you’d make a great lawyer for Bush.)
    You also note some lines from Arthur Schlesinger about how the Youngstown/Steel Seizure case wasn’t “in any primary sense” about foreign affairs. And I guess by way of saying “pfui” to Schlesinger on this I’d note as follows:
    In the first place I think those words “in any primary sense” are just simply weasel words on Schlesinger’s part quite in keeping with what I at least thought was a pronounced (if not embarrassing) partisan tendentiousness in his book.
    After all, saying that the case wasn’t “in any primary sense” about foreign affairs doesn’t mean it isn’t even supremely relevant to cases involving same does it? (Even if it just sort of slyly suggests same, without support, and in the face of the fact that Truman *had* cited foreign affairs/military concerns in trying to seize the mills.) And, frankly, I just saw this kind of strained, unsupported coloration just shot through in Schlesinger’s book.
    E.g. gee, when it came to Presidents Schlesinger liked, such as Wilson or Truman, or that he worked for, such as FDR or Kennedy, oh yeah, he’ll admit that here or there they may have went a little far, ha ha ho ho. But suddenly, when it came to that oh-so middle class bete noir of the Hamptons set, Nixon, Oh My God we got ourselves an Imperial Presidency everyone! And then if I recall correctly when Carter came along and Congress gave him fits, suddenly there’s old Arthur, suddenly taking a 180 and talking about how the pendulum has amazingly swung too far back and now we’ve got an Imperial Legislature….
    Not that Schlesinger didn’t do a great thing by highlighting a big problem, but I at least just couldn’t help grimacing when reading him at the contortions he had to engage in to fit things into what seemed to me was a very partisan cosmology.
    In fact, while I don’t have the time to do the research myself on where Jackson’s analysis has been used subsequently, I’d even bet that if someone did and controlled for certain things (such as the ratio of “foreign affairs” cases to domestic ones), you’d see that in fact Jackson’s Steel Seizure analysis has been used *much* more often in cases involving foreign affairs in some way than in purely domestic cases. And that’s simply because, as I said earlier, it’s in this realm where the President’s powers are so vague and Jackson’s analysis is therefore so needed.
    And then, lastly and rather hilariously to me in terms of putting a final stake in Schlesinger’s “wish as history” oeuvre, all I think I have to do is point to that recent case that was decided so recently and that we discussed at such length, Medellin.
    Because what was Medellin if not a “foreign policy” case par excellence, true? And what was THE central if not sole analysis used there by the Supremes if it wasn’t good old Justice Jackson’s Steel Seizure analysis?
    So all I’d say about that line of Schlesinger’s is Good One Arthur, and leave it at that. Of course by its very simple and straightforward terms Jackson’s Steel Seizure idea applies just as equally to Executive matters of foreign affairs as it does to domestic ones. And given the very nature of the former I think it’s even more often relevant to same than the latter.

  43. Sidney O. Smith III says:

    Counselor TomB
    I suppose I can take it that you do not like Schlesinger. By the end of your comment, I thought it was 1970 again and came to the conclusion, either rightly or wrongly, that you are writing from the position of someone defending the Nixon Presidency, particularly against the Hampton crowd. And this does help me understand with greater clarity the remarkable exchange that you and Habakkuk had awhile back concerning Kennan, NSC 68, and the containment policy. Looks consistent.
    Just for the SST record, I’m willing to bet that I have referred to and agreed with the insights of John Dean, particularly in regard to the unconstitutionality of domestic surveillance by the USG, more than ’bout anyone else.
    And while I greatly respect Schlesinger, I don’t think he and I would jive on Lincoln, at least in the year 2008. The more the neocons extol Lincoln, the more I find myself reaching for DiLorenzo’s book on the same, as D’s critique may provide an antidote to restore the long lost balance b/t the different branches.
    So that whole Schlesinger-Nixon cultural war just doesn’t interest me. Ain’t my Cross to Bear. And it’s like what Col. Lang said over at the Athanaeum, “Adios to the 60’s — Good”.
    My analysis, or perhaps my legal strategy, does not spring from Schlesinger’s Imperial Presidency or even the Youngstown case. I thought I made that point very clear but apparently thought wrong. So let me try again.
    My argument originates from something you penned. Here it what you wrote earlier in this thread:
    “Not that Congress’ connivance makes what he’s done okay, but it does go a long way to make it constitutional courtesy of Justice Stone in the Steel Seizure case.”
    You wrote the word, “connivance” Not me. And when you wrote, “connivance”, I said to myself, “That’s it. Congressional connivance”. Being somewhat of a fan of etymology, I even looked up the word and decided your choice of words was spot on and most excellent. I quote the legal definition: “Law Knowledge of and tacit consent to the commission of an illegal act by another.” And here’s the etymology: “1602, from L. conivere “to wink,” from com- “together” + base akin to nictare “to wink,” from PIE base *knei-gwh- “to bend.” Hence, “to wink at (a crime), be secretly privy.”
    Now, admittedly, at least initially, I failed to understand your sentence en toto. It seems to suggest that Congress has connived with the Prez to act “not okay”, hence unlawfully. Congressional action thus serves to “wink at the crime” of Bush. Yet under Youngstown and according to your sentence, such conniving goes a long way to make an executive order constitutional.
    So, at that point, I started to think that the US has entered uncharted territory. And to construct a post Schlesinger-Nixon-Woodstock generation approach, perhaps the judicial focus should shift more to the Congressional connivance and less to the executive order itself. This approach, at least ostensibly and for the time being, jettisons Youngstown as the Court in that case did not rule on the constitutionality or lawfulness of a Congressional “connivance.” (And even more worrisome, you seem to suggest — and correctly in my view — that the Jackson classificatory scheme would sanction a connivance with absolutely no review, by simply presuming the connivance was lawful)
    So putting aside for the moment, the question of justiciability, I have decided that perhaps now is the time in constitutional history to seize the day, as the federal judiciary has never really weighed in on the constitutionality of the (extremely awkward) 73 War Powers Resolution, the SJ Resolution 23 from 01, or more recently the 10.2.02 Authorization to use Military Force in Iraq.
    The constitutional question is not one that really has been contemplated before. It is an issue of first impression. Historically, and more broadly speaking, the question typically before the Court has addressed another issue: whether or not the legislature or executive branch has unconstitutionally accrued power that belongs to the other competing branch. In this case, the question is whether or not the legislative branch has freely transferred powers to the executive branch in violation of the Constitution. It is as if Congress has become the “Great Enabler” of executive orders or the “Great Conniver”. So Congress, in effect, is not enacting legislation that declares war but, instead, is transferring the war making power to the executive branch using pretextual language. This would seem to violate the 10th Amendment, as Congress abrogates that which it cannot.
    The different issues on review are almost infinite and limited only by one’s creativity and the factual situation leading to the review. But, ConfusedPonderer certainly caught my attention and yours when he weighed in on an aspect unique to the post 9-11 world — the idea of declaring perpetual war for perpetual peace. Here’s what you wrote: “Because with declaring a “war on terror” that’s exactly what this buffoon has gotten us into and I think it’s such a stupid, terrible thing so as to make a mere “blunder” seem a mere trifle, doesn’t it?” And “Just blurt out that you’re declaring war on a mere but ineradicable tactic. And then take actions and follow policies to grievously insult and degrade the hundreds of millions of people whose only way of retaliating is via that very tactic.”
    Because I am pressed for time, I am gonna; mention a speech made by someone. But before I do, I should disclose that, politically, I am not aligned with anyone. But sure looks like this man made a prescient argument way back in 02, so credit where credit is due:

  44. TomB says:

    Ach, Sidney, you’re right. I came off as some Schlesinger hater or Nixon lover/partisan and I ain’t. The virtue of what Schlesinger did with his book far outweighs any of its flaws. He was wrong about that line concerning Youngstown, but in the big scheme of things that’s niggling.
    Otherwise I think your point about a big big line being crossed between a Congress just “going along” with a President and our modern Congresses just *totally* ceding their war-declaring power to the Prez. is a really powerful one that I don’t think I’ve seen before in that form and have to think about. Like I said I think this falls not into the “legal” domain but the politico-civic arena which, as I’ve also said, I think is as important if not moreso than the legal. And I’d sure hope people would wake up about it. That Ron Paul speech you linked to was great, and again like you I think that point confusedponderer made about perpetual war should just leverage our concerns way up there.
    Can seem like all kinds of new and worrisome lines are being crossed, don’t it? And in retrospect that’s how many big disasters always appear too, don’t they? Creeping, creeping, incremental steps towards hell.
    Makes you wonder just why exactly Congress has done what it has and I guess my initial conclusion is just stark fear of being seen as unpatriotic. And thus I was really really struck some time ago in another thread when someone noted that one great advantage of a parliamentary system (which you just mentioned too) was a severing of the head of state from the head of gov’t, and therefore depriving the latter from claiming some grand right to determine what is and what is not “patriotic.” I don’t know how it could be done in the U.S., but very thought-provoking to me at least.

  45. Grouch says:

    posted by WP: Unfortunately, power is what power can get away with will be the rule in the future unless these usurpers of power are impeached or otherwise limited and contained
    That’s the problem isn’t it, we have no mechanism to ‘limit and contain’ do we? We have a President who has discovered that he can simply ignore the law and the Constitution with impunity and when congress makes noises about it he just ignores them as well.

Comments are closed.