Constitutional hardball (translated: We've got some serious shit on our hands)

a high-stakes drama in three - possibly four - acts...

jack balkin via kagro x...

act one...

The first acts of constitutional hardball were by supporters of Bush to help get him into the White House. Some of those tactics-- purging voters from the rolls-- were actually illegal under the federal Voting Rights Act. Other acts of constitutional hardball, like the Supreme Court's decision in Bush v. Gore, were based on implausible arguments that maintained the outward forms of law. Five members of the U.S. Supreme Court, who did not know what the outcome of the Florida recounts would be, stopped those recounts and twisted the law to ensure a Bush victory. Bush won this first round of constitutional hardball. Al Gore conceded, and Bush took office.

act two...

Once in office, Bush engaged in a second round of constitutional hardball. He pushed the legal envelope repeatedly following 9/11 in an effort to expand executive power and limit Congressional and judicial oversight and executive accountability. The list of examples is seemingly endless. The most obvious examples are, in no particular order, (1) the Administration's fetish with secrecy, (2) its use of Presidential signing statements to signal to executive branch officials to disregard certain features of law outside of public view, (3) its claim that the President has the power to round up people (including American citizens) and detain them indefinitely without any of the protections of habeas corpus or the Bill of Rights, (4) its domestic spying operations, (5) its detention and interrogation practices, including its system of secret CIA prisons, (6) its theory that the President does not have to obey Congressional statutes when he acts as Commander-in-Chief, and (7) its alternative theory that the September 18th, 2001 Authorization for the Use of Military Force gives the President a blank check to do whatever he wants.

[...]

This was a constitutional regime with an expansive (some would say limitless) conception of Presidential power to combat a potentially endless war on terror. The President justified his assertion and seizure of new powers through the rhetoric of war and emergency, but in fact the crisis had no ending point. It was, in effect, the declaration of a permanent state of emergency. This state of emergency required and justified a wide range of incursions on civil liberties and human rights.

welcome to act three...

The third round of constitutional hardball-- which we see at present in the fight over executive privilege-- has occurred in the wake of the Democratic takeover of Congress and the long-delayed investigations into the Bush Administration's machinations and acts of incompetence. Now the President is pushing the constitutional envelope by offering an expansive theory of executive privilege. He asserts, among other things, that he has the right to order individuals who no longer work for him to refuse to testify before Congress even though this violates the law.

This third round of constitutional hardball by the Bush Administration is occurring because Bush's previous acts of constitutional hardball did not take. He was not able to create a new constitutional regime that would maintain his party in a dominant position for the foreseeable future. He was not able to bootstrap actions of dubious legality into widespread acceptance and thus enjoy the benefits of winner's history and winner's constitutions. Instead, things are now crumbling about him and there is a very significant chance that his party will suffer for his miscalculations during the next few election cycles.

At this point in Bush's Presidency three things matter above all others. They motivate this final round of constitutional hardball: The first is keeping secret what the President and his advisers have done. The second is running out the clock to prevent any significant dismantling of his policies until his term ends. The third is doing whatever he can proactively to ensure that later governments do not hold him or his associates accountable for any acts of constitutional hardball or other illegalities practiced during his term in office.

and...? and...?

[I]f Congress and the public do not decisively reject Bush's policies and practices, some particularly unsavory features of his Presidency will survive in future Administrations. If that happens, Bush's previous acts of constitutional hardball will have paid off after all. He may not have created a new and lasting constitutional regime, but he will have introduced long-lasting weaknesses and elements of decay into our constitutional system.

as sobering as this is, i am glad to see someone with the sharp legal mind of a jack balkin affirming what i have been thinking for quite some time, namely, that we MUST ACT DECISIVELY to not only roll back but also to clearly and forcefully REPUDIATE the illegal and unconstitutional power grabs that have been a feature of bushco since BEFORE he even took office... serious shit, folks... very serious...

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