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Further notes from our constitutional dictatorship

By Jack M. Balkin

Today's NYTimes includes a story, "Administration to Bypass Reporting Law," about the refusal of the Bush Administration to comply with a statute requiring a report to Congress regarding activities that affect the privacy interests of Americans. The statute provides that the chief privacy officer of the Department of Homeland Security is to submit the report "without any prior comment or amendment" by superiors at the Department or the White House. Michael Chertoff has advised Congress that his department would not "apply this provision strictly" because of its ostensible infringement on presidential power, as detailed in an OLC memorandum. Pennsylvania Senator Arlen Spector (Republican) pronounced this argument "unconstitutional." More interesting is Sen. Specter's comment that "[t]his is a dictatorial, after-the-fact pronouncement by [President Bush]in line with a lot of other cherry-picking he's done on the signing statements" (emphasis added). "To put it diffierently, I don't like it worth a damn." I suppose it's easier for the notably spineless Specter, who, among other things, voted for the MCA in spite of his own (correct) view that it was unconstitutional, to become assertive when Mr. Bush has officially become the most unpopular President in the history of presidential polling and John ("I voted with George Bush 90% of the time") is attempting to put as much distance as possible between himself and the erstwhile leader of his party--and of the supine Republicans in Congress--for the past eight years. Still, I am happy to get confirmation of my general analysis wherever I can find it.

It may be worth noting that the OLC opinion was signed by the egregious Steven G. Bradbury. The opinion was described by Neil Kinkopf, now a profesor of law at Georga State University, who was in the OLC (with Marty Lederman) during the Clinton Administration, as another example of the Administration "run[ning] amok" on its notion of executive power. Prof. Peter Strauss of Columbia agrees that that the law is constitutional. But let's say the Administration is correct (whatever exactly that might mean), and that the law is unconstitutional. So from my (and Specter's?) perspective, this would be just another example of the extent to which the Constitution, "correctly interpreted," instantiates "constitutional dictatorship." And if the Administration is, yet again, wrong in its theory of the Constitution, then it is just another example of the unconstitutionally dictatorial aspects of the Bush presidency. And, of course, he will remain in office, thanks to our defective Constitution, until January 20, 2009, with all of the "dictatorial" powers at his command, legal or otherwise.

Full post as published by Balkinization on October 25, 2008 (boomark / email).

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