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January 23, 2007

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Balkinization Partly in response to my earlier post, Eric Posner and Adrian Vermeule make the... [Read More]

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Joan A. Conway

Bush, Gonzales, and Rove have been acting like this since Bush was Governor of Texas, why now does everyone feel he has crossed the line of appropriateness, when he hasn't changed at all.

I don't understand people.

They want to believe in a guy, who lied to them about too many things before he became President, and then when the stakes get too high and the risk to faulty, they say, see he was too secret of what he was up to.

The fools don't want to believe in the facts and buy into the American Dream.

The purse strings have become too tight for many?

People want the good times back and are willing to forget about the 911 attack.

I don't say I know for sure about Bush's success rate in the increase troops being deployed to Iraq, but I now realize this man is deadly serious. I have even changed my opinion recently with this campaign of his to go down with the ship!

That is a committment.

Shouldn't we honor a government willing to make this committment to another country that can help our own country resolve a horrendous problem of terrorists directed at us?

Perhaps we should be more committed too!

Garth

What transparent nonsense.

One need look only to the examples used to see how far one must go to find adequate comparison's for the Bush administration.

Miscegenation laws, Japanese internment... what about the Alien & Sedition Act or Watergate.

Yeah, yeah, we've heard the But they all do it defense before.

Garth

As for avoiding a confrontation with Bush over the troops. The Democrats just took over this month.

Right now they are simply feeding Bush the rope.

Michael Martin

While I am all for the passive virtues, this argument looks to me to be too clever by half. There are some relevant institutional differences between the executive and judicial branches. There is plenty of constitutional basis for the judicial branch to decide cases on procedural grounds (think of the case or controversy requirement). By constrast, there is a reason by Article II only says "take care" -- the executive shouldn't have the luxury of avoiding a political crisis by clever legal slight-of-hand. That's a quid-pro-quo for its sweeping authority, is it not?

TJ

Professor,

I have to disagree with your analogy. When the Supreme Court ducks an issue, it usually doesn't opine on the merits of it. Here, the administration has ruled on the merits, but then ducked review. Thus, this is not like ducking anti-miscegenation laws after Brown, but rather more like what Chief Justice Marshall did in Marbury v. Madison.

Whether what CJM did in Marbury (opining on the merits but then avoiding the political cost by dismissing for lack of jurisdiction) was appropriate is a question that has far more divided opinion than the prevailing praise of judicial restraint after the civil war.

LAK

Well of course it is. Look to the intent. It is unscrupulous. To avoid scrutiny of their practices. To avoid accountabilty. It is especially dangerous when no one has any real idea outside the Executive branch of what kind of searches and surveillance they were conducting, or how many instances of improper detention or human rights violations were going on.

They'd rather render one case moot than have their practices exposed, which in many ways is even more disturbing.

LAK

And let's not kid ourselves. The glaring distinction is that the Court is charged with interpreting and upholding the Constitution and is doing its job when it evaluates others' conduct.

To compare the Court avoiding poltically unpalatable precedent at sensitive times to what the Bush administration is doing right now, now that they are having the light of day shined on them by Congress, is ridiculous. To even suggest they are doing it as some kind of high minded political pragmatism akin to the High COurt in the instances you cite is absurd.

They don't want to have many more instances of hearings in which the Attorney General of the United States of America says "The Constitution doesn't say every citizen is granted or assured the right of habeas."

My heart and brain ache.

It isn't any high minded judicious pragmatism. I'm surprised anyone would even suggest so when it is the Executive Branch we are talking about, especially given the circumstances and timing.

Sarah

Professor Posner's argument exposes the fallacy of his conclusion. While Congress and the Court have (rightly or wrongly) often sought to avoid pronouncements or actions that might bring them into conflict with the other branches, the current administration has taken every opportunity to assert its primary authority to decide constitutional issues, backing away only when the other branches refuse to back away from their own responsbilities. it is one thing to assert power reluctantly, quite another to assert it recklessly and without regard to actual authority, in reliance on one's ability to evade review at the last moment.

Erasmussimo

I've been holding back on this topic because I wanted time to consider Mr. Posner's argument carefully, but Sarah's comment has gelled my thinking. The central notion, in my thinking, is the element of opportunism. That is, the Bush Administration has established a clear pattern of claiming maximum authority, and then backing down when effectively challenged. You will recall that Mr. Bush originally claimed that the AUMF gave him the authority to invade Iraq on his own prerogative -- but backed down and sought Congressional approval when it became clear that Congress would not go along with so extreme an interpretation of AUMF.

Mr. Bush's signing statements are the clearest manifestation of this pattern of behavior. He has claimed breathtaking powers in his signing statements. Since they have no legal significance outside of the Executive Branch, there is no formal means for challenging his claims. However, I suspect that this Congress will address some of Mr. Bush's more egregious claims. And I suspect that Mr. Bush will back down.

Joan A. Conway

If you want to return to a life that occurred fifty years ago, you want to be a Supreme Court Justice.

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