Unlike, oh, every one else on earth, Andy McCarthy over at NRO seems to think the problem isn’t the President’s reach on wiretapping powers, but that nasty Judicial branch overstepping its bounds.
In reality, McCarthy’s train of “logic” has only one eventual conclusion: the President as supreme ruler of America.
The president’s constitutional authority is inviolable — it cannot be reduced by mere legislation. When Congress passes a statute, like FISA, that purports to reduce the president’s constitutional authority, it is Congress, not the president, that is trampling the rule of law. A president who ignores such a statute is not a law-breaker; he is a defender of the highest law. He is executing the responsibility vested in his office by the Framers who, as Alexander Hamilton observed in The Federalist No. 73, worried deeply about “the propensity of the legislative department to intrude upon the rights, and to absorb the powers, of the other departments.”
But let’s leave that aside for a moment. Whether you agree or disagree with what I just argued, it is incontestable that, under our Constitution, the president has a role — a plenary role, according to the Supreme Court — in the gathering of intelligence against foreign entities for national-security purposes.
The courts, to the contrary, have no such role. The Framers did not give them one, and the Supreme Court has acknowledged that they are institutionally incompetent to be brought into the intelligence-gathering equation, much less to manage it.
It is thus not the Constitution that has inserted judges into the intelligence-gathering business. If the Constitution were being honored, they’d be out of it. They are in the equation for one reason and one reason alone: Congress unwisely (and, I believe, unconstitutionally) interposed them when it enacted FISA.
Say what? Now, I’m not Glenn Greenwald or anything, but it seems to me that taking a strict Constitutional view, a lot of the Bush administration wouldn’t even exist in the first place, you know? Certainly we’d have no Executive branch efforts to end habeas corpus, and of course we wouldn’t have all this silly unconstitutional stuff about the President detaining people with no right to trial. Most importantly, we wouldn’t have FISA in the first place, because it would be illegal search and seizure. We would of had the President declare war, officially, on Iraq, or else we’d not have anyone in the country doing anything.
But note what he says at the beginning: “the President’s Constitutional authority is inviolable“…even presumably compared to the Constitutional authority of the other branches of government. Stop and think about that. Inviolable.
That’s the problem with McCarthy declaring FISA is itself illegal because of strict constructionist standards…it would render, oh, say 95% of what Bush has done as illegal and moot. Signing statements would certainly disappear. Congress would be holding all the purse strings, so I’m wondering where all those executive branch offices would go. Dick Cheney would be relegated to opening Wal-Marts in Moldavia. Logic would seem to dictate that.
When you use the Constitution as the ultimate standard, you don’t get to apply it selectively…it’s the freakin’ Constitution. But McCarthy’s not done. Most people would have probably stopped after the 2×4 hit them in the back of the head. Not Andy.
So, what caused our present national-security crisis? A judge on the FISA court outrageously ignored the FISA statute. And it’s not the first time. And, whenever it happens, the purpose is to vest our enemies with more “rights,” not to protect our nation from those trying to slaughter us.
Understand this point. It’s crucial. The president has a right to ignore the FISA statute if it conflicts with the higher duties that are assigned to him by the Constitution. The president has an obligation to safeguard the American people against foreign attack — including strikes ordered by al Qaeda supervisors overseas, who give direction to terrorists embedded here, as they did in the run-up to 9/11. You can argue that he has overstepped his authority. You cannot credibly argue that he is without a colorable basis for doing so.
Well then, doesn’t that apply to Congress and the judicial branch as well? Shouldn’t they be able to ignore a Presidential veto if the legislation they are passing involves, say, the higher Constitutional duties of Congress, raising money and providing for the military? Isn’t that a plenary power of Congress? Not that Congress should do that, but the branches are co-equal, you know.
When you start openly talking about one branch having the right to ignore checks and balances from another branch, then you start getting into very dangerous territory. It’s even worse when you subscribe to the John Yoo Theory Of Selective Constitutional Law, where the only branch that can do this is the Executive, and the Executive can basically ignore the other two branches because it “interferes with plenary higher duties”.
That’s how you start arriving at fascism, dictatorships, and Maximum Leaders for Life. McCarthy is basically espousing a dictatorship, while saying the Founding Fathers would approve, then he says that it’s Congress’s fault for letting the Judicial get away with abuses of power, and then for the four-hit wankmaster combo he then scolds the Left for not calling out the “activist FISA judges”.
That’s beyond self-serving rhetoric, it’s pure insanity. Any restraint on absolute Presidential power is illegal, because it interferes with the “higher Constitutional duties” of the President. Under that logic, there should be no oversight, no way to redress grievances, and no limit on the President whatsoever.
In fact, why should the President even pay any attention to the Supreme Court or Congress at all? Any law or precedent handed down by the other two branches of government could conceivably “interfere with the President’s higher Constitutional powers”.
But the point where McCarthy goes completely off the rails is where the President’s “plenary” powers are checked by the Constitution itself. McCarthy’s argument is that the Constitution gives the President the power to ignore anything including the parts of the Constitution that he doesn’t like.
When the rules are interpreted to give all the power to one entity, including the power to change the rules or ignore them completely, that entity has absolute power. The logical endpoint of the argument is that there’s basically nothing stopping the President from dissolving Congress, the Supreme Court, and the Constitution itself, and declaring himself the ultimate arbiter of all things American.
There is no other way to look at McCarthy’s article but to say he believes the President of the United States is the supreme ruler of the country. And logic like this is a far greater threat to America than anything Osama or Saddam or Ahmadinejad could ever imagine doing to us.