Wednesday, December 21, 2005
Vital Presidential Power
William Kristol and Gary Schmitt nail it in this WaPo opinion piece, "Vital Presidential Power":
Even as federal courts have sought to balance Fourth Amendment rights with security imperatives, they have upheld a president's "inherent authority" under the Constitution to acquire necessary intelligence for national security purposes. (Using such information for criminal investigations is different, since a citizen's life and liberty are potentially at stake.) So Bush seems to have behaved as one would expect and want a president to behave. A key reason the Articles of Confederation were dumped in favor of the Constitution in 1787 was because the new Constitution -- our Constitution -- created a unitary chief executive. That chief executive could, in times of war or emergency, act with the decisiveness, dispatch and, yes, secrecy, needed to protect the country and its citizens.
That is why the president uniquely swears an oath -- prescribed in the Constitution -- to preserve, protect and defend the Constitution. Implicit in that oath is the Founders' recognition that, no matter how much we might wish it to be the case, Congress cannot legislate for every contingency, and judges cannot supervise many national security decisions.
This will be especially true in times of war.
This is not an argument for an unfettered executive prerogative. Under our system of separated powers, Congress has the right and the ability to judge whether President Bush has in fact used his executive discretion soundly, and to hold him responsible if he hasn't. But to engage in demagogic rhetoric about "imperial" presidents and "monarchic" pretensions, with no evidence that the president has abused his discretion, is foolish and irresponsible.
Even as federal courts have sought to balance Fourth Amendment rights with security imperatives, they have upheld a president's "inherent authority" under the Constitution to acquire necessary intelligence for national security purposes. (Using such information for criminal investigations is different, since a citizen's life and liberty are potentially at stake.) So Bush seems to have behaved as one would expect and want a president to behave. A key reason the Articles of Confederation were dumped in favor of the Constitution in 1787 was because the new Constitution -- our Constitution -- created a unitary chief executive. That chief executive could, in times of war or emergency, act with the decisiveness, dispatch and, yes, secrecy, needed to protect the country and its citizens.
That is why the president uniquely swears an oath -- prescribed in the Constitution -- to preserve, protect and defend the Constitution. Implicit in that oath is the Founders' recognition that, no matter how much we might wish it to be the case, Congress cannot legislate for every contingency, and judges cannot supervise many national security decisions.
This will be especially true in times of war.
This is not an argument for an unfettered executive prerogative. Under our system of separated powers, Congress has the right and the ability to judge whether President Bush has in fact used his executive discretion soundly, and to hold him responsible if he hasn't. But to engage in demagogic rhetoric about "imperial" presidents and "monarchic" pretensions, with no evidence that the president has abused his discretion, is foolish and irresponsible.
