From Pine View Farm

Separation of Powers 0

Give this article in the latest American Scholar a look-see.

Then be afraid.

The sweeping authority that Nixon claimed in theory, George W. Bush has acted on again and again. The preemptive attack on Iraq was the most visible of his presidency’s actions resting on that claim— actions we can’t fully count because so many have been undertaken in secret. This pattern has made the issues of presidential power and the separation of powers as important today as they have ever been. From 2003 through 2006, when the Republicans occupied the White House, controlled both houses of Congress, and held sway on the Supreme Court— and, really, since the administration came to power in 2001— there was little checking and balancing. Instead of ensuring that the executive branch was properly enforcing the law— holding meaningful hearings about Abu Ghraib, for example, or about the detention of enemy combatants— Congress often acted like an extension of the White House.


If the scope of executive power were a burning topic of politics, the breakdown allowing the power to expand dramatically might not feel so momentous— whether you regard it as a breakdown in the American legal process or in the system of checks and balances. Among the current Democratic and Republican presidential candidates, however, none has attacked executive supremacy as forcefully as past candidates assailed judicial supremacy. None has made executive restraint a rallying cry. Torture, illegal surveillance, and other contentious practices of the Bush administration have drawn criticism from candidates of both parties, but not one of them has focused on the underlying problem.

The most urgent legal and political issue of our time might as well not exist. Since 9/11 our democracy has functioned like an autocracy. In making one significant choice after another, the Bush administration has repeatedly done what Nixon only threatened to. But this is a nonissue in the current presidential race. That is so even though what’s at stake is a fundamental judgment about the nature of the presidency and, therefore, of the Republic.


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