- The Washington Times - Saturday, April 1, 2006

The Republicans on the Senate Intelligence Committee let President Bush off the hook recently on the matter of wiretapping American citizens without a warrant. Wisconsin Sen. Russell Feingold’s motion to censure the president may make the Democrats feel a little better, but the fact is the president’s domestic eavesdropping program will continue, albeit subject to a modest degree of congressional oversight.

The basic issue of presidential authority, or lack thereof, to conduct such surveillance has been successfully buried. In their rush to head off an issue that was damaging to an already struggling president, and unhelpful to their congressional colleagues in an election year, the Republicans’ action may be seen as simply partisan. But might they, by default or by design, have been working for some higher purpose?

The United States’ Constitution, for all its genius, does a poor job of defining the relative powers and responsibilities of the legislative and executive branches of government. The founders, in the words of Supreme Court Justice Robert Jackson, left a “zone of twilight” — an area where the division of constitutional authority between the president and Congress is blurred. Arguments over this twilight zone have been a defining feature of American politics ever since, but some arguments are better perpetuated than resolved. The appropriation of power by one branch of government inevitably results in the loss of authority by another, the last thing any politician wants. The fact is that, in many cases, neither side can afford to lose.

When Abraham Lincoln suspended habeas corpus during the Civil War, the Supreme Court told him flatly that he lacked the necessary constitutional authority to do so. He, and Congress, ignored the Court. Thomas Jefferson negotiated and concluded the Louisiana Purchase against all of his anti-federalist principles and, in all probability, acted beyond the powers vested in him by the Constitution. Congress rode on the unconstitutional coattails of the president and ratified the treaty with France anyway.

On a more contemporary note, Congress and the president continually skirt the issue of who has the power to make and sustain war. In December, Vice President Dick Cheney reminded us that presidents from Richard Nixon to George W. Bush have regarded Congress’ 1973 War Powers Resolution as an unconstitutional interference with the prerogatives of the president. Yet both Congress and successive presidents have steadfastly avoided any moves to resolve this constitutionally sensitive issue before the Supreme Court.

What is wrong with a little constitutional clarity? At first blush you might think that a clear and precise demarcation of executive and legislative authority would make for better government.

But maybe Justice Jackson’s twilight zone has its uses. Would we be better off if Thomas Jefferson hadn’t seized the moment to secure the Louisiana Purchase? Undoubtedly not. Would we be better off if Lincoln had adhered to the ancient principle of habeas corpus and allowed Washington D.C. to fall to the Confederacy? I don’t think so. Would we be happier if President Bush had used the available legal channels to secure warrants for his domestic eavesdropping? Probably.

But here is the rub. Flexibility in the interpretation and application of the United States Constitution has brought us some considerable benefits. Shining a spotlight into the twilight zone may do us more harm than good.


Stephen Boyle is writing his Ph.D. dissertation, which focuses upon the American presidency, at the University of Florida.

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