Cato vs. Caesar
So conservatives have no excuse to dismiss out of hand Healy and Lynch’s new Cato Institute report Power Surge: the Constitutional Record of George W. Bush or the conclusion they reach after a thorough examination of the Bush administration’s record:
The pattern that emerges is one of a ceaseless push for power, unchecked by either the courts or Congress, one, in short, of disdain for constitutional limits.
The 30-page report delves into a blend of liberal and conservative issues: signing and enforcing the McCain-Feingold restrictions on political contributions and advertising (which conservatives see as an unconstitutional violation of free speech); routinely arresting protesters at presidential public appearances; denying the power of Congress or the courts to limit the president’s war powers; torture; weakening constitutional protections against searches, seizures, and surveillance; weakening the right of habeas corpus; circumventing the right to trial by jury; and intruding into areas traditionally reserved to the states, such as general police power end-of-life issues, marriage, school curricula, medical marijuana, and guns.
The Bush constitutional vision, in short, is
sharply at odds with the text, history, and structure of our Constitution, which authorizes a government of limited powers.
Personally, I strongly support the goal of reducing the influence of money on politics, and feel that equating campaign contributions with speech concedes a disproportionate role to the rich. But Healy and Lynch correctly point out that McCain-Feingold raises serious constitutional issues. For example:
[T]he ban on individual, “soft money” contributions to political parties ... as Justice Anthony Kennedy noted in his dissent, would have criminalized Ross Perot’s efforts to build the Reform Party in the 1990s, sending him to jail for up to five years for giving over $25,000 to a national party. Such a provision can only have the effect of protecting the established duopoly of the Republican and Democratic parties.
Cato’s charge against President Bush on this issue is that he signed the bill in spite of having stated during his campaign that he found it to be unconstitutional.
Restrictions on Protest
Under the guise of protecting the President, the Secret Service routinely arrests protesters who refuse to be contained in “free speech zones” far away from a presidential public appearance.
During that presidential visit [to Pittsburgh in 2002], retired steelworker Bill Neel was arrested and charged with disorderly conduct for refusing an order to move. In an open public area, amidst a crowd of Bush supporters, Neel unfurled a homemade sign reading “The Bush family must surely love the poor, they made so many of us.” When he refused to move to a free-speech zone in a fenced-in baseball field a third of a mile away, he was handcuffed and arrested by local police acting at the behest of the Secret Service. The arresting officer testified that he was instructed by the Secret Service to corral “people that were there making a statement pretty much against the president and his views.”
...Time and again, Secret Service agents or those operating at their behest have threatened to arrest citizens who are peacefully protesting on public streets and sidewalks, unless they move to a designated, fenced-in area. That is viewpoint-based discrimination against citizens exercising their rights in public forums—and the governmental interest in protecting the president does not come close to justifying that discrimination. It cannot be seriously maintained that persons determined to do the president harm are likely to draw attention to themselves by waving placards criticizing him. Thus, in such cases, the Secret Service is protecting the president from political criticism, not physical harm.
The Cato report quotes James Madison on the reasons that the Founders gave the power to declare war to Congress:
In war, a physical force is to be created; and it is the executive will, which is to direct it. In war, the public treasuries are to be unlocked; and it is the executive hand which is to dispense them. In war, the honors and emoluments of office are to be multiplied; and it is the executive patronage under which they are to be enjoyed; and it is the executive brow they are to encircle. ... Hence it has grown into an axiom that the executive is the department of power most distinguished by its propensity to war: hence it is the practice of all states, in proportion as they are free, to disarm the propensity of its influence.
Cato finds the Bush administration’s view to differ considerably from Madison’s.
It amounts to the view that, in time of war, the president is the law, and no treaty, no statute, no coordinate branch of the U.S. government can stand in the president’s way when, by his lights, he is acting to preserve national security. That is apparent in a series of startling claims the administration has made in official documents and public papers, which include the following:
• presidential power to ignore federal statutes governing treatment of enemy prisoners—as well as other federal laws that impinge on practices the president believes to be useful in fighting the war on terror;
• unilateral executive authority over questions of war and peace; and
• the power to designate American citizens “enemy combatants” and lock them up without charges for the duration of the war on terror—in other words, perhaps forever.
The administration’s internal memos justifying its use of torture provide a case in point:
Much of the public discussion about the “torture memos” has focused on the narrowness of their definition of torture and the question of whether the Geneva Convention covers Al Qaeda and Taliban prisoners. Reasonable people can debate those issues, but what’s perhaps most disturbing about the memos is their assertion that the president cannot be restrained by validly enacted laws.
The report then details some of the laws and treaties that ought to govern this administration’s behavior, but do not, such as the 1988 UN Convention Against Torture and the 1994 legislation that implemented that convention. Cato finds no reason to believe these are not binding.
The Constitution’s text will not support anything like the doctrine of presidential absolutism the administration flirts with in the torture memos. It gives Congress powers that bear directly on the issue of military conduct and war crimes, including the power “To make Rules for the Government and Regulation of the land and naval Forces” and the power “To define and punish ... Offences against the Law of Nations”—such as violations of international covenants against torture.
It sums up the administration’s position as follows:
When we’re at war, anything goes, and the president gets to decide when we’re at war.
The Cato report finds three ways in which the Bush administration has undermined the Fourth Amendment’s provisions against unreasonable searches and seizures. First, by authorizing the military to arrest non-citizens inside the United States without a court-issued warrant.
The U.S. military can take prisoners into custody in a war zone, but this order is not limited to persons in overseas war zones. The president’s attempt to assert such authority over persons on American soil is astonishing because the whole purpose of the Fourth Amendment is to make such a procedure impossible in America.
Second, the probable-cause standard for arresting citizens and non-citizens alike has been weakened.
The Supreme Court has noted time and again that a person cannot be hauled out of his home on the mere suspicion of police agents—since that would put the liberty of every individual in the hands of any petty official. But in the days and weeks following September 11, the FBI arrested hundreds of people and euphemistically referred to the group as “detainees.”
... At bottom, this is an attempt to effect what Judge Richard Posner, in another context, has aptly called “imprisonment on suspicion while the police look for evidence to confirm their suspicion.”
Third, the administration has abused the material witness law.
The material witness law is designed to secure a potential witness’s testimony so that it will not be lost in situations where the individual witness seems likely to ignore a summons and flee the jurisdiction.
In the months following the September 11 attacks, federal agents used the law to incarcerate suspects, not witnesses. By “evading the requirement of probable cause of criminal conduct, the government bypassed checks on the reasonableness of its suspicion.”
Seizures of property have also been expanded beyond the scope allowed by the Constitution.
Section 215 of the Patriot Act created a new subpoena-like power that enables the police to seize private property. ... [The administrations claims about the limited nature of these powers] were very misleading. First, section 215 is titled “business records,” but it actually covers any “tangible” thing. Thus, section 215 can be used to seize medical records from doctors, educational records from schools, and records from libraries and bookstores. Indeed, section 215 can be used to seize personal belongings from someone’s home. Second, there is only a façade of judicial review. Unlike the search warrant application process, the Patriot Act is written in such a way as to mandate approval by the judiciary. So long as the FBI certifies that it is engaged in a terrorism investigation, the judge must grant or modify the order. Third, citizens can exercise their free speech rights concerning grand jury subpoenas and can challenge those subpoenas in court. But the Patriot Act makes it a crime for anyone to disclose the existence of the section 215 order.
The warrantless wiretapping program leads Cato to make this comment:
President Bush’s claim that he has the “inherent” power as commander in chief to order the secret surveillance of international e-mail and telephone conversations of persons within the United States raises a host of disturbing questions. ...
Indeed, the president’s lawyers have already informed the federal judiciary that they regard the entire world, including every inch of U.S. territory, a “battlefield.” That outlandish claim has profound implications for the Bill of Rights because there are no legal rights whatsoever on the battlefield. President Bush has delivered many speeches in which he has told audiences that he wants to use every “legal” means at his disposal so that he can “protect the country.” That is what most Americans want to hear and believe. Unfortunately, the president appears to believe that he is the ultimate arbiter of what is legal and what is illegal—at least in matters relating to national security. By twisting and redefining the term “battlefield,” the president seems prepared to override any law that hinders federal police agents, federal intelligence agents, or military personnel.
The administration’s gutting of our habeas corpus rights gets its own section in the report. Habeas corpus, as I have explained in the past, is the foundation of all other rights. Habeas corpus guarantees that if you are arrested, you can make your jailer justify his actions to an impartial judge. If the judge is not satisfied, he can free you. Your other rights mostly amount to limitations on the reasons the judge can accept. If your jailer, for example, tells the judge that he arrested you for being Muslim, the judge will reject that justification because you have freedom of religion. But if the hearing doesn’t happen at all, your freedom of religion doesn’t come into play -- the government simply imprisons you and doesn’t have to say why.
The most important constitutional issue that has arisen since the September 11 terrorist attacks has been President Bush’s claim that he can arrest any person in the world and hold that person incommunicado indefinitely. According to the legal papers that Bush’s attorneys have filed in the courts, so long as he has issued an “enemy combatant” order to his secretary of defense instead of the attorney general, it does not matter if the prisoner is a foreign national or an American citizen. And it does not matter if the prisoner was apprehended in Afghanistan or in some sleepy town in the American heartland. Under this sweeping theory of executive power, the liberty of every American rests on nothing more than the grace of the White House.
The report underlines this point by quoting Judge Antonin Scalia, also not noted as a liberal extremist: “The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive.”
Some conservative writers tried to downplay the significance of the president’s stance by arguing that “only” a few Americans have been imprisoned on the “enemy combatant” theory. That argument misses the point completely. The American legal system is based on precedent. If the Bush administration is successful in claiming that it can imprison just one American citizen and deprive that person of habeas corpus protection, that precedent could be used against scores of citizens thereafter, whether by the present president or his successors. It is for that reason that Bush’s attempt to undermine “the very core of our liberty” may be his most egregious failure to protect and defend our Constitution.
Trial by Jury
The administration claims that “enemy combatants” are not entitled to trial by jury.
The defect in the president’s claim is circularity. A primary function of the trial process is to sort through conflicting evidence in order to find the truth. Anyone who assumes that a person who has merely been accused of being an unlawful combatant is, in fact, an enemy combatant, can understandably maintain that such a person is not entitled to the protection of our constitutional safeguards. The flaw, however, is that that argument begs the very question under consideration.
Cato is not inclined to give up such a basic right lightly, because there is no telling when we’ll get it back.
When considering the legal changes the administration has sought to impose in the name of the war on terror, it is vitally important to consider the nature of that war. The administration has taken to calling it “The Long War.” Unlike other wars, this one will not end with a peace treaty signed at a diplomat’s table. It will take decades, and when victory is achieved, we may not know with any certainty that we’ve won. Thus, the extraconstitutional powers we tolerate now will be available for all future presidents, scrupulous or otherwise. And our entire constitutional system repudiates the notion that electing good men is a sufficient check on abuse of power.
The original vision of the Founders was that the federal government would have only the powers listed in the Constitution. All governmental powers not explicitly given to the federal government were retained by the states. As Patrick Henry put it: “The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government.”
Alexander Hamilton held that this limited-powers vision made a Bill of Rights unnecessary: “For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?”
Over the years the federal government’s power has expanded far beyond what the Founders envisioned. This has happened in several ways: by taking advantage of the Constitution’s so-called “elastic clause” which authorizes the federal government to do whatever is “necessary and proper” to carry out the duties explicitly assigned to it; by stretching its constitutional power to regulate interstate commerce; and by threatening to withhold federal funds from any state that refuses to implement laws that Congress itself has no power to implement.
As a candidate, George W. Bush embraced the traditional Republican distaste for these usurpations of the powers originally reserved to the states.
Let me make this pledge to you all. I’m going to make respect for federalism a priority in this administration. Respect for federalism begins with an understanding of its philosophy. The framers of the Constitution did not believe in an all-knowing, all-powerful federal government. They believed that our freedom is best preserved when power is dispersed. That is why they limited and enumerated the federal government’s powers, and reserved the remaining functions of government to the states.
But Cato concludes that this pledge has been broken.
Six years into his tenure in office, the president’s record on federalism is depressingly clear. It is one of consistent disdain for the constitutional role of the states and for limits on federal power.
Federalism, as Cato points out, is not inherently a liberal/conservative issue, because the states may be either more liberal or more conservative than the federal government. Their examples make this point clear. The Bush administration has:
insisted that federal drug laws should trump state laws allowing medical uses of marijuana, justifying this via the interstate commerce clause even if the marijuana in question was grown locally and not sold.
tried unsuccessfully to overthrow the Oregon “Death with Dignity” law on similar grounds.
signed legislation to give federal courts jurisdiction in the Terri Schiavo case.
Moved (or tried to move) a variety of crimes from state court systems to federal courts, such as gun violations, human cloning, and partial-birth abortion. Cato notes: “What one thinks of the practice proscribed here is immaterial: call it a ‘medical procedure’ or call it ‘murder,’ but either way an abortion performed in a single state is not ‘interstate commerce’.”
exerted an unprecedented level of federal control over public school curricula in the testing provisions of the No Child Left Behind Act.
supported a constitutional amendment that would define marriage at the federal level.
Cato balances these encroachments against what it sees as one bright spot: the administration’s respect for the Second Amendment rights of gun owners. But this is “not enough to redeem the Bush constitutional record, which is overwhelmingly one of contempt for constitutional limits.” The report closes with this image:
On the campaign trail in 2000, then-governor Bush typically ended his stump speech with a dramatic flourish: he pantomimed the oath of office. But the oath is more than a political gimmick; for the founding generation it was a solemn pledge, designed to bind the officeholder to the country and the Constitution he serves. Throughout his tenure, President Bush has repeatedly dishonored that pledge. And because of that, he has weakened the constitutional order on which the American way of life depends.