Washington Monthly has an interesting set of essays by prominent conservatives on why they want the Republicans to lose in November. Joe Scarborough writes of the virtues of divided government during the 90s:
The fact that both parties hated each another was healthy for our republic’s bottom line. A Democratic president who hates a Republican appropriations chairman is less likely to sign off on funding for the Midland Maggot Festival being held in the chairman’s home district. Soon, budget negotiations become nasty, brutish, and short and devolve into the legislative equivalent of Detroit, where only the strong survive.
But in Bush’s Washington, the capital is a much clubbier place where everyone in the White House knows someone on the Hill who worked with the Old Man, summered in Maine, or pledged DKE at Yale. The result? Chummy relationships, no vetoes, and record-breaking debts.
In the 90s, when Republicans had Congress but the Democrats had the White House, the Republicans actually cared about attempts to expand executive authority beyond constitutional limits. If a Democratic congress had tried to pass the Medicare prescription drug boondoggle of a bill that the Republicans pushed through 3 years ago, a Republican president would have vetoed it in a New York minute. Having one party control both branches is the end of any chance for even minimal fiscal and legal restraint, as the last 6 years have clearly demonstrated.
Bruce Fein, the conservative firebrand from the Reagan justice department, goes much further and minces no words:
The most conservative principle of the Founding Fathers was distrust of unchecked power. Centuries of experience substantiated that absolute power corrupts absolutely. Men are not angels. Ambition must be made to counteract ambition to avert abuses or tyranny. The Constitution embraced a separation of powers to keep the legislative, executive, and judicial branches in equilibrium. As Edward Gibbon wrote in The History of the Decline and Fall of the Roman Empire: “The principles of a free constitution are irrevocably lost, when the legislative power is nominated by the executive.”
But a Republican Congress has done nothing to thwart President George W. Bush’s alarming usurpations of legislative prerogatives. Instead, it has largely functioned as an echo chamber of the White House.
President Bush has flouted the Foreign Intelligence Surveillance Act of 1978 (FISA) for five years by directing the National Security Agency to target American citizens on American soil for electronic surveillance on his say-so alone. The president has defended his warrantless domestic spying with an imperial theory of inherent constitutional power that would empower him to open mail, break in and enter homes, or torture detainees, even in violation of federal criminal statutes. He has concealed details of the spying program indispensable to rational congressional oversight–for example, the number of Americans targeted, the earmarks employed to select the targets, or the intelligence yield of the spying. He has never explained to Congress why FISA could not have been amended to accommodate any unforeseen evasive tactics by al Qaeda in lieu of simply disregarding the law. Indeed, Congress has amended FISA six times since 9/11 at the request of the White House, and the Senate Intelligence Committee was informed by Bush’s Justice Department on July 31, 2002, that FISA was working impeccably. The president has also refused to disclose what legal advice he received to justify the NSA’s warrantless domestic spying at its inception. And Attorney General Alberto Gonzalez has confessed that President Bush is operating other intelligence collection programs that are unknown to Congress and the public and that will never be revealed, absent leaks to the media.
Republicans in Congress have bowed to the president’s scorn for the rule of law and craving for secret government. They have voted against Democratic Sen. Russell Feingold’s resolution to rebuke Bush for violating federal statutes and crippling checks and balances. They have resisted brandishing either the power of the purse or the contempt power (with which it can compel testimony) to end the president’s violation of FISA and to force full disclosure of his secret foreign-intelligence programs. Indeed, the Republican chairman of the Senate Judiciary Committee, Arlen Specter, is sponsoring a bill that in substance endorses President Bush’s FISA illegalities and authorizes an electronic-surveillance program warrant that would enable the NSA to spy on Americans indiscriminately without the particularized suspicion of wrongdoing required by the Fourth Amendment.
Republicans in the House and Senate have been equally invertebrate in the face of presidential signing statements that usurp the power to legislate. In approximately 800 cases, President Bush has both signed a bill and declared his intent to disregard provisions he believes are unconstitutional, the equivalent of a line-item veto. For instance, he signed the Detainee Treatment Act of 2005 prohibiting torture while issuing a signing statement declaring his intent to ignore the law in order to gather military or foreign intelligence.
The Presentment Clause of Article I, Section 7 gives the president but two options when presented with a bill passed by Congress: sign or veto the bill in its entirety. That was the holding of the Supreme Court when it found a line-item veto statute unconstitutional in 1998’s Clinton v. City of New York. The president is obligated to veto a bill that he believes to be unconstitutional; Congress may override that judgment by two-thirds majorities. In the 217-year history of the United States under the present Constitution, Congress has overridden only 28 constitutionally based vetoes, and on only one occasion did the override engender a constitutional battle between the president and Congress. Presidential signing statements further usurp the legislative power by resulting in the enforcement of laws that Congress has not passed. Members vote on all the provisions of a law collectively in the expectation that all will be executed if the president approves.
Signing statements also flout the president’s obligation in Article II of the Constitution to execute the laws faithfully. The Founding Fathers were acutely aware of the example of King James II, whose practice of suspending or dispensing with laws he believed encroached on royal prerogatives eventually occasioned his overthrow in the Glorious Revolution of 1688. With such precedents in mind, the framers of the United States Constitution directed the president to execute the laws without fail. The Republican Congress, however, has acted as a disinterested spectator while President Bush has stolen its legislative authority in plain view and exercised the tyrannical power of making, executing, and conclusively interpreting the law and the Constitution.
The most frightening claim made by Bush with congressional acquiescence is reminiscent of the lettres de cachet of prerevolutionary France. (Such letters, with which the king could order the arrest and imprisonment of subjects without trial, helped trigger the storming of the Bastille.) In the aftermath of 9/11, Mr. Bush maintained that he could pluck any American citizen out of his home or off of the sidewalk and detain him indefinitely on the president’s finding that he was an illegal combatant. No court could second-guess the president. Bush soon employed such monarchial power to detain a few citizens and to frighten would-be dissenters, and Republicans in Congress either cheered or fiddled like Nero while the Constitution burned. The Supreme Court ultimately entered the breach and repudiated the president in 2004’s Hamdi v. Rumsfeld. Republicans similarly yawned as President Bush ordained military tribunals to try accused war criminals based on secret evidence and unreliable hearsay in violation of the Uniform Code of Military Justice and the Geneva Convention. The Supreme Court again was forced to countervail the congressional dereliction by holding the tribunals illegal in 2006’s Hamdan v. Rumsfeld.
Republicans have shied from challenging Bush by placing party loyalty above institutional loyalty, contrary to the expectations of the Founding Fathers. They do so in the fear that embarrassing or discrediting a Republican president might reverberate to their political disadvantage in a reverse coat-tail effect.
Democrats, for their part, likewise place party above the Constitution, but their party loyalty at least creates an incentive to frustrate Bush’s super-imperial presidency. This could help to restore checks and balances. For the foreseeable future, divided government is the best bet for preserving both the letter and spirit of the Constitution. If Democrats capture the House or Senate in November 2006, the danger created by Bush with a Republican-controlled Congress would be mitigated or eliminated.
I couldn’t agree more. For the first time in my life, I may vote for one of the two major parties this year in an attempt to bring about divided government.