< meta name="DC.Date.Valid.End" content="20050825"> Amendment Nine: Executive Power--the Baby in the Bathwater

Tuesday, January 24, 2006

Executive Power--the Baby in the Bathwater

It's the essence of fashion among liberals to condemn Republican defenses of executive power as somehow fascist and certainly anti-democratic. Liberals need to take a deep breath and think more clearly than that.

First, let us not forget that it was the twin heroes of the modern Democratic Party--FDR and Truman--who were among the most vigorous claimants for strong, unrestrained executive power. In Ciceronic fashion, I will not mention FDR's decision, for national security reasons, to confine thousands of Japanese Americans in concentration camps during WWII--a decision whose endorsement by the Supreme Court remains the law of the land.

Nor will I mention Truman's outright seizure of the Youngstown Steel plant, for national security reasons, which seizure was held unconstitutional by the Supreme Court, a decision which also survives as the law of the land, to which Truman acceded.

Time nor space do not permit me to mention Eisenhower's commitment of federal troops to enforce the school desegregation order in Little Rock, Arkansas--a decision that remains the law of the land despite four decades of unceasing agitation across the South against executive efforts at "social engineering." (And no, the claim that he was "just" enforcing a court order in no way made it acceptable to the South; executive power was supposed to be withheld, not asserted, in just such circumstances according to the virtually unanimous southern opinion at the time, an opinion that is now the dominant ideology of the Republican Party.)

And of course I must pass over Nixon--whose assertions of executive privilege to withhold evidence were rejected by the Courts and were unable to prevent the inexorable momentum toward impeachment, which Nixon avoided only by resignation.

No, it must suffice simply to remind the reader that our history of the past sixty years is replete with bold assertions of executive power--some, including the most egregious of all (FDR's), still in place as the law of the land, but others consensually rejected. And in that sufficiency it is required that we appreciate that the support for executive power was most often from the left--because the executive, as the only branch directly responsible to all the people of the US, was perceived as more democratic than the Congress which was considered much more beholden to special, and by definition local, interests. But for unprecedented assertions of executive power, more by Eisenhower than by any Democrat, there'd be few racially integrated schools either in the South, or in the large cities of the North.

So it's not executive power, but rather the particular context of its assertion (and no doubt the political climate at the time) that validates or invalidates its use.

It is in that context that we must consider Alito, Gonzalez, and of course Bush. The answer to the overly bold assertion of executive power is to ask simply whether the circumstances justify it, i.e.:

Does the national security threat require the extreme measures proposed by the executive? In a word, no. The Al-Qaeda threat is substantially overstated and cannot--by any rational measure--justify a wholesale assertion of executive power to search the conversations of Americans, seize their papers, or (to hear the administration tell it) do anything it wants to do as long as it does so in the furtherance of a hypothetical war against "terrorism." But the objection is not to the assertion of power; it is to the justification for it in this case.

Of course, framed this way, the argument runs the risk of seeming to diminish the seriousness of the 9-11 attacks. No. It only asks whether the proposed executive power is necessary to comabat the threat. With respect to telephone conversations, the argument needs to address the utter silliness of the assertion that for the NSA to listen to every conversation in America, even every conversation with a foreign citizen, is either necessary or effective. (And its silliness makes clear that darker political motives must be operating to take advantage of the situation not only to have a Nixonian enemies list--political enemies, that is--but also to "find out" what these enemies, i.e. Democrats, are up to.) If the objection is raised that the "guidelines" for the eavesdropping prevent that kind of politicization of the eavesdropping, then the objection is defeated by the president's assertion that he can do "anything" he wants to, i.e. cannot be bound by guidelines, either the administrations's own guidelines for the eavesdropping "program," or those legislated by Congress.

Torture is even sillier: for the president to assert his right--despite Congress's legislation to the contrary--to torture prisoners is utter foolishness for the simple but severe reason that there is no evidence that it works.

My intent is not to cast the executive power argument into purely utilitarian, result-oriented terms. It is simply to say that ideological objections to unexpected exercises executive power have not controlled the debate of the last sixty years. Simpler objections based on plain facts have carried the day.

(And this is not to say that we would today approve the internment of entire ethnic groups of our citizens, as FDR did. A half century of social and civil rights progress--not to mention technological development--has made FDR's precedent also no longer tenable.)