By Libby
A great post by JB at Balkinization on the failure of movement conservatism's constitutional revolution. He lays out the legal angles of their plan beautifully.
Following the 9/11 attacks, George W. Bush and his supporters proposed a significant chance in constitutional norms, centered around increased presidential power to fight the war on terror. This vision included (1) a doctrine of preemptive war, (2) new surveillance techniques, including domestic surveillance, (3) a new system of preventive detention, including detention of american citizens without access to courts, (4) the creation of legal black holes like Guantanamo Bay and CIA black sites, (5) use of torture and torture-lite to obtain information, (6) enhanced secrecy and classification policies, and (7) a version of unitary executive theory that claimed that Congress could not constitutionally limit the President when he claimed to act under his powers as Commander-in-Chief. The last idea was also articulated in (8) the expansion of the use of constitutional signing statements, in which the President would state that he would disregard certain features of laws passed by Congress without telling the public any details about the scope or extent of his non-enforcement.
I never understood why more people weren't horrified enough to complain about that last one. It strikes at the heart of the whole system of checks and balances. And I agree that it's going to be a helluva mess to clean up.
Read JB's whole post to see how close we came to seeing it succeed. It still could. We're one SCOTUS vote away from destroying centuries' worth of precedents and progress. At the end of the day, nothing matters more to me than making sure it's not McCain who gets to pick the next justices. It would be a constitutional disaster.
Update: Thanks to Geoff for the link to another must read post on the subject by Scott Horton. The importance of preventing another round of GOP appointed justices really can't be over-emphasized.
Libby Scott Horton over at Harpers also has a good note up on the recent SCOTUS ruling. I like his characterisation of the turn "off and on" constitution which has been the brain child of the current administration. He also lays out the likely next shoe to drop scenario which he says an inside Bush source says they have been planning.
ReplyDeletehttp://harpers.org/archive/2008/06/hbc-90003070