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Subject: Separation of powers? Who needs it? rss

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Ken
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Caveat: I'm actually going to try to say this in a non-bashing manner. Stuff like this is just scary.

I'm a huge fan of the Constitution as my posts on various subjects indicate. I think our founders showed incredible wisdom and foresight in the way that they structured our government and that our government has been pretty damned effective overall in making sure that the rights we have, the way that power is exercised, and the controls placed on power are all sustained appropriately.

So the articles I've been reading recently (these are from the Chicago Tribune) really tick me off:

Memos on presidential power

Memo on presidential power

Legal experts' opinions

These are issues I think are worth getting pissed off about and writing your Congressman/Senator. Ignore who was in office and just focus on the idea that one branch of our government held the opinion that it could place itself outside of the checks and balances of the others. Ignore the personalities and question how it is that these decisions could be taken with limited or no oversight. Ignore who held office and ask how it was that the system permitted these types of decisions to be reached and kept secret.

This isn't about who's in office or not, it's about how our own system of government was able to reach decisions that impacted the way government functions, the way we enforce the law, the way that our rights are upheld (or not), and the transparency with which such decisions are reached. If there's a fear we should have in the power of the state it's that the state will take action without any review, without any countervailing forces, and without even admitting that decisions on how government can and will behave have been taken.

As citizens, we've an interest in making sure this doesn't, this can't happen again. Otherwise, we need to change the name of our government to something other than "Representative Democracy."
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Richard Hefferan
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This thread could have used a better title. It's less about seperation of power than it is about simply ignoring the constraints built into the law and constitution.
 
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J
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perfalbion wrote:


I'm a huge fan of the Constitution...


I've been hearing/reading this a lot lately. For one example, Chad posted in a day or two ago. I think it goes without saying that most of us would say we're each defending the "true" meaning of the Constitution even when we're in complete disagreement on an issue.

Anyway, back to your regularly scheduled thread...
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Richard Hefferan
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jarredscott78 wrote:
perfalbion wrote:


I'm a huge fan of the Constitution...


I've been hearing/reading this a lot lately. For one example, Chad posted in a day or two ago. I think it goes without saying that most of us would say we're each defending the "true" meaning of the Constitution even when we're in complete disagreement on an issue.

Anyway, back to your regularly scheduled thread...


On most issues I'm with you, but this one is a no-brainer. Nobody who is in support of the constitution can concievably allow a president to commit warrantless searches. It's just flies directly in opposition with the obvious language of the document. No real grey area to this one at all. Just a president who thinks he's a 14th century king and the constitution is just some pesky document he can ignore at will.
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True Blue Jon
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Congress is responsible for holding the president to the law.
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Dwayne Hendrickson
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Aw Hell, there goes THAT idea.
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J
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By the way, I agree with the OP or at least parts of it. I don't want my previous post to make it seem like I'm tossing out the baby with the bathwater. That was purely a general statment about the "fan of the Costitution" usage.


From the third article:
Quote:
Still, critics said some in the Bush administration took advantage of the moment.

"This was a period of panic, and panic creates an opportunity for patriotic politicians to abuse their power," Balkin said.


My how things have changed...or not. It sounds eerily similar to advancing a political agenda through a "stimulus" bill during a "period of panic" with spending that would otherwise not be approved. When exactly was the official notice for The R's and D's to switch sides? Oh that's right, inauguration day.
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Kenneth Bailey
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I can support the idea of a powerful executive during a declared war (like World War II for instance) but when you have something nebulous like a War on Terror, I'm not quite so supportive of that given that the War on Terror could conceivable last forever since there isn't a clearly defined end point. And someone is right, it is up to Congress to check the power of the President if it thinks that he has gone too far which is one of the reasons why I do not like one party rule.
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J
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quozl wrote:
Congress is responsible for holding the president to the law.

And that's the whole point of the checks and balances. When one branch wants to take more power than it is supposed to according to the Constitution then the other two have measures in place to stop it from happening. So what went wrong?
 
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Matthew M
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quozl wrote:
Congress is responsible for holding the president to the law.


Oh, well then I guess there's no problem then.

Next!

-MMM
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Richard Hefferan
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mikoyan wrote:
I can support the idea of a powerful executive during a declared war (like World War II for instance) but when you have something nebulous like a War on Terror, I'm not quite so supportive of that given that the War on Terror could conceivable last forever since there isn't a clearly defined end point. And someone is right, it is up to Congress to check the power of the President if it thinks that he has gone too far which is one of the reasons why I do not like one party rule.


Sure, a powerful executive branch during war is nice. But no war, even one on U.S. soil, reduces the rights of the citizens.

The entire point of the "no illegal search and seizure" clause was for war anyway. The british troops would commandeer property for use when they saw fit. U.S. citizens found this obtrusive and unjust, rightfully in my opinion. To say that war negates that clause is simply madness and ignores the intentions of framers.
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Kenneth Bailey
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Shushnik wrote:
mikoyan wrote:
I can support the idea of a powerful executive during a declared war (like World War II for instance) but when you have something nebulous like a War on Terror, I'm not quite so supportive of that given that the War on Terror could conceivable last forever since there isn't a clearly defined end point. And someone is right, it is up to Congress to check the power of the President if it thinks that he has gone too far which is one of the reasons why I do not like one party rule.


Sure, a powerful executive branch during war is nice. But no war, even one on U.S. soil, reduces the rights of the citizens.

The entire point of the "no illegal search and seizure" clause was for war anyway. The british troops would commandeer property for use when they saw fit. U.S. citizens found this obtrusive and unjust, rightfully in my opinion. To say that war negates that clause is simply madness and ignores the intentions of framers.

There have been plenty of precedents for reduced rights during wartime. Both World Wars had them, the Civil War certainly had them. However, those reduced rights didn't come by virtue of an executive fiat, they had to come thorugh Congress which what I believe the Supreme Court said in its many rulings regarding the Bush excesses. I don't agree with the idea of a reduction of rights but I can certainly understand where it would come from.

But as I said....I think the bigger problem is when you have one party controlling everything because there are less likely to be checks.
 
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Ken
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mikoyan wrote:
I can support the idea of a powerful executive during a declared war (like World War II for instance)


Even then, I'm not buying. The Constitution provides the president with all the powers he needs. While I'll accept that during a time of war there will be more that's declared secret or privileged, any additional powers granted still need appropriate checks and balances. And Congress still needs to do its job on oversight. So do the courts.
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True Blue Jon
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Octavian wrote:
quozl wrote:
Congress is responsible for holding the president to the law.


Oh, well then I guess there's no problem then.

Next!

-MMM


The problem is that we have no immediate recourse when Congress colludes with the president in illegal activity.

Besides revolution.
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Kenneth Bailey
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perfalbion wrote:
mikoyan wrote:
I can support the idea of a powerful executive during a declared war (like World War II for instance)


Even then, I'm not buying. The Constitution provides the president with all the powers he needs. While I'll accept that during a time of war there will be more that's declared secret or privileged, any additional powers granted still need appropriate checks and balances. And Congress still needs to do its job on oversight. So do the courts.

That's part of the reason why I say a declared war. Where we actually have an enemy and a clearly defined ending condition. But the reduction of liberties should come from Congress and not the President which is what I think the Supreme Court said during the Civil War.
 
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True Blue Jon
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FlyingArrow wrote:
quozl wrote:
Octavian wrote:
quozl wrote:
Congress is responsible for holding the president to the law.


Oh, well then I guess there's no problem then.

Next!

-MMM


The problem is that we have no immediate recourse when Congress colludes with the president in illegal activity.

Besides revolution.


Stronger states' rights. If those still existed.


Not since the Civil War.
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Chief Slovenly
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mikoyan wrote:
I can support the idea of a powerful executive during a declared war (like World War II for instance) but when you have something nebulous like a War on Terror, I'm not quite so supportive of that given that the War on Terror could conceivable last forever since there isn't a clearly defined end point. And someone is right, it is up to Congress to check the power of the President if it thinks that he has gone too far which is one of the reasons why I do not like one party rule.


c.f. War Powers Resolution of 1973, and how every president ever since has chafed against the spirit, if not the letter, of the document, pursuing their various police actions around the globe.

I'd argue that Bush II was probably the first who bent the thing and broke the fucker off in finding his loopholes in the AUMF and other pieces of funding legislation, but that's just me.
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Chief Slovenly
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Back to the OP: ah, the infamous Yoo memos. It's still a mystery to me why that guy hasn't been disbarred, or even allowed within any kind of law teaching position.

Authorizing fundamental changes to core legal concepts on the basis of... a nebulously-defined "unitary executive" power, where the citation and precedent is -- what, exactly? We don't know, because no cite or further justification was ever given.

Stuff that would get a D or an F on a first-year con law paper, that's what.
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Kenneth Bailey
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bbenston wrote:
mikoyan wrote:
I can support the idea of a powerful executive during a declared war (like World War II for instance) but when you have something nebulous like a War on Terror, I'm not quite so supportive of that given that the War on Terror could conceivable last forever since there isn't a clearly defined end point. And someone is right, it is up to Congress to check the power of the President if it thinks that he has gone too far which is one of the reasons why I do not like one party rule.


c.f. War Powers Resolution of 1973, and how every president ever since has chafed against the spirit, if not the letter, of the document, pursuing their various police actions around the globe.

I'd argue that Bush II was probably the first who bent the thing and broke the fucker off in finding his loopholes in the AUMF and other pieces of funding legislation, but that's just me.

I'd argue that Bush II was about the only one who went about it right. He got his authorizations from Congress for both Afghanistan and Iraq. And he kept getting authorizations. In each case Congress pretty much said, "Well you know what's best" and then bitched about it when he did what he thought was best. And therein lies the problem.
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Chief Slovenly
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mikoyan wrote:
bbenston wrote:
mikoyan wrote:
I can support the idea of a powerful executive during a declared war (like World War II for instance) but when you have something nebulous like a War on Terror, I'm not quite so supportive of that given that the War on Terror could conceivable last forever since there isn't a clearly defined end point. And someone is right, it is up to Congress to check the power of the President if it thinks that he has gone too far which is one of the reasons why I do not like one party rule.


c.f. War Powers Resolution of 1973, and how every president ever since has chafed against the spirit, if not the letter, of the document, pursuing their various police actions around the globe.

I'd argue that Bush II was probably the first who bent the thing and broke the fucker off in finding his loopholes in the AUMF and other pieces of funding legislation, but that's just me.

I'd argue that Bush II was about the only one who went about it right. He got his authorizations from Congress for both Afghanistan and Iraq. And he kept getting authorizations. In each case Congress pretty much said, "Well you know what's best" and then bitched about it when he did what he thought was best. And therein lies the problem.


Maybe so, maybe not.

The justification for these AUMFs, for the most part, rested on intelligence found through the specially-created agency of the Office of Special Plans -- because the administration at the time distrusted anything that came out of the State Department or even the rank and file at the CIA. (After the fact, when it all went into the shitter, they ironically claimed that they needed to listen to "plan B" kinds of scenarios far more often in the future, when "plan B" stuff was precisely the justification for fast-tracking the bullshit let's-invade-now kinds of faulty intelligence in the first place.)

So, when the Bush Administration goes to Congress with the handpicked stuff, with the imprimatur of the CIA -- or at least what the higher-ups at the CIA have been encouraged to agree to -- Congress becomes an all-too-willing accessory.

You could argue a few things:

1) Congress didn't do its full homework in asking for more information -- I guess you'd call it the Iraq Minority Report.
2) Bush knowingly withheld the full intelligence picture from Congress and politicized it to the hilt by talking of mushroom clouds -- based on a desire for a domino effect in the Middle East. (I'd say that the idea of a domino effect is pretty well discredited by now.)
3) Congress willingly signed its powers away in the face of a (then) popular President arguing from a position of positive evidence, even if that evidence was misleading and even somewhat cooked.
4) The Office of Special Plans gets disbanded when the whole thing goes south, and down the memory hole it goes.
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Kenneth Bailey
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I'm more inclined to believe point 3 that Congress willingly signed it's powers away. You have to remember that Bush wasn't the first President that wanted to do something about Iraq. Or for that matter, the first politician. Many of the reasons for the UN to maintain sanctions on Iraq were going away and many of the people that supported those sanctions initially wanted to start doing business for Iraq. And despite not finding actual chemical weapons, there was enough evidence to support that Iraq did have chemical weapons programs. So if sanctions had gone down and Saddam remained in power, he would have been back in business with those programs. Admittedly, I don't buy into the Administration theory that he would have supplied terrorists with those things given that he and the terrorists weren't exactly on the same side.

There were almost as many reasons to go into Iraq as there were reasons not to go into Iraq. Quite honestly, I don't think we should have gone in the way we did. But I'm not going to let Congress off the hook because they are as much to blame as Bush. In fact, I'm more inclined to blame them since many of them should have known better (Kerry for instance).
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Chief Slovenly
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I believe all 4 of those reasons, but a thumb for you for a well-argued point regardless.
 
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David desJardins
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Shushnik wrote:
Nobody who is in support of the constitution can concievably allow a president to commit warrantless searches. It's just flies directly in opposition with the obvious language of the document.


If I'm fighting on a battlefield and shoot an enemy soldier, can the President authorize me to check if he's got a live grenade, or do I need a warrant for that?
 
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Kenneth Bailey
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bbenston wrote:
I believe all 4 of those reasons, but a thumb for you for a well-argued point regardless.

I'm inclined to believe the other reasons as well, but I think the biggest reason is that Congress really punted when it should have done more due dilligence. I'll give kudos to Bush for picking October of an election year to make the final resolutions. But as I said, there were plenty of people that thought Saddam had something.

But I also think that once the decision to go was made, Bush should have made every effort to ensure that we were going to do it up right. Instead, he listened to Rumsfeld and thought we could do it on the cheap. But like the CEO's we are talking about in other threads, he didn't have to pay the price for his poor decisions, that was for the lesser folks to do. (When I say lesser in this case, I mean lower in the rank structure.....I give lots of props to our soldiers for dealing with the crap sandwich they were given).
 
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DaviddesJ wrote:
If I'm fighting on a battlefield and shoot an enemy soldier, can the President authorize me to check if he's got a live grenade, or do I need a warrant for that?

Why would a foreign soldier have a U.S. citizen's constitutional privacy rights?
 
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