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Will 2009 Bring a Re-Balance of Power?


President George W. Bush (WDCpix)

Pointing to the Bush years as a dark age in the annals of abusive executive might, Sen. Russ Feingold (D-Wis.) called Tuesday for the next president to denounce the last decade’s White House power grab and return the notion of legal accountability to Pennsylvania Ave.

The push is just the latest in a series of moves by congressional Democrats to rein in the executive branch, whose go-it-alone approach has sparked myriad controversies in the past eight years. Feingold’s effort is unique in that, instead of targeting the Bush administration directly, he hopes to make its tactics an example — warning policy-makers of the dangers of unilateral White House decision-making.

Applying the lessons, however, might not be as easy as the Wisconsin Democrat hopes. The separation-of-powers debate — ignited during the Nixon administration nearly four decades ago — resurfaced in the wake of the 9/11 attacks, when Congress, in effect, enabled the White House to conduct its global war on terror however it pleased. That absence of congressional — and, at times, even judicial — oversight allowed the Bush administration to skirt federal and international laws in ways that many critics, including Feingold, have deemed unprecedented.


Illustration by: Matt Mahurin

Seven years later, the pendulum is swinging back ever-so-slowly. But Feingold, the chairman the Senate Judiciary Constitution Subcommittee, who convened a hearing on executive power Tuesday, hopes to expedite that process by convincing the next president that the re-empowerment of Congress is vital for the national health.

“One of the most important things that the next president must do, whoever he may be, is take immediate and concrete steps to restore the rule of law in this country,” Feingold said. “He must make sure that the excesses of this administration don’t become so ingrained in our system that they change the very notion of what the law is.”

There have been plenty of episodes to fuel Feingold’s concerns. As part of its dubious record, the Bush administration has tortured war-on-terror detainees, suspended the right of habeas corpus, spied on U.S. residents without court orders, refused congressional requests for information, claimed to have lost years worth of official White House emails, used signing statements as a way to circumvent laws, screened Justice Dept. applicants based on ideology — and the list goes on.

Critics, including a long list of prominent historians and constitutional scholars, contend that the administration agenda marks nothing less than a breach of democracy.

“The result has been a distortion of the Constitution, an evisceration of the rights and liberties of individuals, and a perversion of American values,” said Frederick A.O. Schwarz Jr., the former council for the Church Committee and a senior attorney with New York University Law School’s Brennan Center for Justice, who testified before Feingold’s subcommittee Tuesday.

Neither the office of Sen. John McCain nor that of Sen. Barack Obama returned requests for comment. Earlier this year, however, both candidates supported a controversial bill expanding the White House powers for warrantless wiretapping of Americans.

Harold Hongju Koh, a professor of international law at Yale University, pointed out the diplomatic troubles stemming from the Bush administration policy. The very existence of the Pentagon’s detention facility at Guantanamo Bay, for example, has allowed dictators and tyrants across the globe to justify their own violations of international law, he said.

“The last seven years have been devastating,” Koh said.

Congress bears some blame for the White House power grab, certain experts argue. Mickey Edwards, a former Republican congressman from Oklahoma who is now a lecturer at Princeton University’s Woodrow Wilson School of Public and International Affairs, accused Congress of failing in its responsibility to stand up to an abusive administration.

“The current greatest threat to our system of separated powers and the protections it affords stems not just from executive overreaching,” Edwards said, “but also from the acquiescence of Congress.”

Not everyone agrees. Sen. Sam Brownback (Kan.), the highest-ranking Republican on the subcommittee, said the premise for the hearing — that the White House needs reining in because it’s violated the law — is itself flawed. Between congressional action and recent Supreme Court decisions, he said, “significant” steps have already been taken to apply greater oversight to the executive branch.

“This is well-plowed ground,” Brownback said.

Robert F. Turner, associate director at the Center for National Security Law at the University of Virginia, dismissed the notion that Congress, or any one else, has anything but a cursory role in directing the president’s foreign-policy decisions. “The Constitution grants to the president a great deal of unchecked discretionary powers,” said Turner, a senior White House lawyer under Ronald Reagan.

Discrepancies found in the nation’s long and complicated legal record have only clouded the debate over executive power, allowing legal scholars to cherry-pick those opinions best supporting their arguments. Turner, for example, pointed to a Marbury v. Madison passage stating, “whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion.”

Another witness, Walter Dellinger, a professor at Harvard Law School, countered with a constitutional clause providing that “the President shall take Care that the laws be faithfully executed.”

The practice is not unlike lawmakers calling on like-minded witnesses during testimony, or reporters calling on sources of a particular ideological bent.

Jack Rakove, a political science professor at Stanford University and the Pulitzer-Prize winning author of “Original Meanings: Politics and Ideas in the Making of the Constitution,” said there are no neat lines in legal debates, but there is a clean lesson to learn from the Bush years. “The Constitution fundamentally works best,” Rakove said, “when all three branches are allowed to get an oar in.”

Many in Congress would agree, yet supporters of taming White House powers might have a difficult time conveying their message. Of the 48 chairs set up for reporters at Tuesday’s hearing, only five were ever occupied.

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