OPINION:
Presidential power is metastasizing. President Bush has placed the nation on a permanent war footing with international terrorism in which every square inch of the planet is a battlefield where military law and military force may be employed.
His theory of a “unitary executive” has been brandished to flout the Foreign Intelligence Surveillance Act of 1978, prohibitions on torture or cruel, inhumane or degrading treatment, or congressional oversight. The core concept is that when the president professes to be fighting terrorists, the laws are silent.
Accordingly, President Bush has detained American citizens as unlawful enemy combatants without accusation or trial; and, has kidnapped, imprisoned and maltreated suspected terrorists abroad in a legal twilight zone.
Mr. Bush has usurped legislative power through hundreds of “signing statements” declaring his intent to disregard provisions of bills he has signed into law because he maintains they are unconstitutional. The statements are first cousin to the line-item veto power held invalid by the United States Supreme Court in Clinton v. New York (1998).
President Bush has further diminished Congress through preposterous assertions of executive privilege or state secrets to thwart congressional investigations. He has prohibited current or former presidential advisers from appearing before Congress to discuss the firings of nine United States attorneys. Vice presidential adviser David Addington is resisting testimony about legal memoranda justifying torture. Congress has been denied meaningful access to a welter of secret spying programs. The known programs generally were leaked to the press by executive branch officials.
Emblematic of bloated executive power was Sen, Hillary Clinton’s recent boast that if Iran attacked Israel, “I want the Iranians to know that if I’m the president, we will attack Iran.” Congress would be denied even a cameo appearance in the decisionmaking. And Mrs. Clinton encountered no chastisement for announcing she would not respect the Constitution’s entrustment to Congress of the decision whether to initiate warfare and risk in Iran a sister quagmire with Iraq.
Like Mrs. Clinton, Sen. John McCain covets unrestricted executive power. Mr. McCain, nevertheless, delivered a blistering narrative May 6 against the contemporary defilement of the Constitution’s checks and balances. But his surprise O Henry ending portrayed the federal judiciary as the greatest molester — the “one great exception” to an otherwise impeccable balance between branches. Riddled with major errors and omissions, Mr. McCain’s remarks shot at the wrong branch.
He bemoaned that federal judges “show little regard for the authority of the president, the Congress and the states.” As proof he cites the case of Susette Kelo. There the United States Supreme Court refused to invent any limit on the power of the president, Congress or the states to take private property so long as just compensation was paid. It was up to the popular branches of government or to the people through referenda or initiatives to determine whether private property should be shielded from eminent domain.
After the Kelo decision, numerous states, localities and Congress took advantage of that option. Yet Mr. McCain audaciously summoned the precedent as exemplary of a judiciary contemptuous of electoral politics — a deception more to be marveled at than imitated.
In Medellin v. Texas (2008), the Supreme Court interceded to prevent Mr. Bush from treating Texas like a tributary state. The president had instructed Texas to comply with a ruling of the International Court of Justice.
Mr. McCain vocally champions the Second Amendment right to keep and bear arms. At present, he is urging the United States Supreme Court to interpret the Amendment to handcuff states and the elected branches of government in regulating the ownership or use of firearms. But his May 6 remarks bewailed federal courts for disrespecting the political process where, “Real activists seek to make their case democratically — to win hearts, minds, and majorities to their cause.” He rebuked activist lawyers or judges who “want to be spared the inconvenience of campaigns, elections, legislative votes and all of that.” But that activism is what Mr. McCain celebrates on matters of guns or private property. He epitomizes the “double standard” that he finds revolting in judges.
Mr. McCain reprehended the U.S. 9th Circuit Court of Appeals and an eccentric litigant for disputing the constitutionality of “Under God” in the Pledge of Allegiance or “In God We Trust” on the currency. He deceitfully neglected to inform the audience that the court of appeals was reversed by the Supreme Court and that the litigant has not prevailed in any final judgment. Self-correction does not signal a malfunctioning institution.
The occasional excesses of the federal judiciary deserve trenchant criticism, not Mr. McCain’s sophomoric sloganeering. And the critique should underscore that the evils of judicial stumbles are trivial compared with unchecked presidential power and perpetual global warfare.
Bruce Fein is a constitutional attorney at Bruce Fein & Associates and chairman of the American Freedom Agenda.
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