TPM on Kristol's defender-of-the-constitution defense of *'s lawlessness

[BurtWorm]

(I usually don't do the *=Bush thing, but it certainly does save space in titles!)

From Josh Marshall's blog:

http://www.talkingpointsmemo.com/archives/week_2005_12_18.php#007290

William Kristol and Gary Schmitt have a column in today's Washington Post that advances a simple premise: the president "uniquely swears an oath -- prescribed in the Constitution -- to preserve, protect and defend the Constitution." While Congress legislates for the 'in general', the president is the one who must face particular crises, ones whose dimensions, dangers and particularities legislators could not have foreseen. This mix of responsibility and authority gives the president the unique and awesome power to set aside Congress's laws in the over-riding interest of securing the nation.

This is a doctrine fraught with danger in a constitutional republic. But it is not a new theory and it is not without some merit.

...<Marshall goes on to discuss an instance in which Jefferson took a risk (on the Louisiana Purchase) without Congressional approval (because Congress was not available to authorise it and a decision was urgent) and notes that Jefferson defended his action saying that sometimes the executive must act extra-Constitutionally, but he must always do so transparently and with the expectation that Congress has the obligation to punish him if they believe his actions are unjust. Marshall says this is where Kristol's argument falls apart.>


Kristol and Schmitt conclude by writing ...

This is not an argument for an unfettered executive prerogative. Under our system of separated powers, Congress has the right and the ability to judge whether President Bush has in fact used his executive discretion soundly, and to hold him responsible if he hasn't. But to engage in demagogic rhetoric about "imperial" presidents and "monarchic" pretensions, with no evidence that the president has abused his discretion, is foolish and irresponsible.

But this makes no sense. The Congress can't hold the president accountable or legislate on these matters for the future if they're never informed of what the president is doing. That's obvious. There may be some situations Congress can't have foreseen in advance; but Kristol and Schmitt are talking about a situation the president has prevented the Congress from considering even after the fact.

That's the end of constitutional government. No individual is absolute in a democratic republic. But this principle allows the president to make himself just that.

-- Josh Marshall

[tecelote]

1. The first step is for Bush to hand everything over to the judges.

If he did nothing wrong, why would he not have already done this?

How can it be argued that now, after the fact, he should have anything to hide?

[Spinzonner]

2. Can you say Slippery Slope ?

I knew you could