None dare call it treason

I mention this because of my interest in all things legal, and because, if it wasn't for Froomkin, I wouldn't have heard of it. From The Boston Globe:

The board of governors of the American Bar Association voted unanimously yesterday to investigate whether President Bush has exceeded his constitutional authority in reserving the right to ignore more than 750 laws that have been enacted since he took office.

Meeting in New Orleans, the board of governors for the world's largest association of legal professionals approved the creation of an all-star legal panel with a number of members from both political parties.

They include a former federal appeals court chief judge, a former FBI director, and several prominent scholars -- to evaluate Bush's assertions that he has the power to ignore laws that conflict with his interpretation of the Constitution.

The ABA goes where Congress fears to tread:

The ABA's president, Michael Greco, said in an interview that he proposed the task force because he believes the scope and aggressiveness of Bush's signing statements may raise serious constitutional concerns. He said the ABA, which has more than 400,000 members, has a duty to speak out about such legal issues to the public, the courts, and Congress.

``The American Bar Association feels a very serious obligation to ensure that when there are legal issues that affect the American people, the ABA adopts a policy regarding such issues and then speaks out about it," Greco said. ``In this instance, the president's practice of attaching signing statements to laws squarely presents a constitutional issue about the separation of powers among the three branches."

The concern breaks down into three categories: 1) the "Imperial Presidency:

``I think one of the most critical issues in the country right now is the extent to which the White House has tried to expand its powers and basically tried to cut the legislative branch out of its own constitutionally equal role, and the signing statements are a particularly egregious example of that," Edwards said. ``I've been doing a lot of speaking and writing about this, and when the ABA said they were looking to take a position on signing statements, I said that's serious because those people carry a lot of weight."

2) The Rule of Law:

William Sessions , a retired federal judge who was the director of the FBI under both Reagan and President George H.W. Bush , said he agreed to participate because he believed that the signing statements raise a ``serious problem" for the American constitutional system.

``I think it's very important for the people of the United States to have trust and reliance that the president is not going around the law," Sessions said. ``The importance of it speaks for itself."

3) The tapestry of laws and customs that hold the system together:

Another member, Patricia Wald, is a retired chief judge of the US Court of Appeals for the District of Columbia, appointed by President Carter.

She said she had monitored the use of signing statements by previous administrations, but ``the accelerated use in recent years presents a real question about separation of powers and checks and balances."

Wald also said she was especially interested in studying how signing statements affect the federal bureaucracy. As a judge, Wald said, she dealt with many cases involving challenges to decisions made by administrative agencies. She said that courts are deferential to such decisions because they are supposed to be made by objective specialists in the agencies. But a heavy use of signing statements could call that assumption into question.

``If Congress passes a law telling the people in the bureaucracy that `this is what you should do,' and the president signs it but attaches a statement saying `I don't want you to do it,' how is that going to affect the motivation of the bureaucracy?" she said.

In other words, the courts show deference because the Administration usually agrees to abide by the rules. When they don't, who takes charge?

The title, long associated with the John Birch Society, is from a poem:

"Treason doth never prosper.
What's the reason?
If it prosper,
none dare call it treason."

We are not at that state, nor really near it. But we are reaching a dangerous tipping point. If the courts rise up and assert power over the Administrative branch, because the Legislative branch refuses to do so, what then happens to the very delicate balance of powers (this is Judge Wald's issue)? But if it doesn't, what then happens to the balance of powers?

We are being pushed toward Hobson's choice, apparently so we will destroy the Republic in order to save it. As Derrida, in another context, said of "rogue states" like this:

To immunize itself, to protect itself against the aggressor (whether from within or without), democracy thus secretes its enemies on both sides of the front so that it's only apparent options remained murder and suicide; but the murder was already turning into suicide, and the suicide, as always, let itself be translated into murder.

And he provides an interesting insight into a connection between democracy and the concept of the basileia tou theou, where the first are last and the last first, where the most powerful are the most powerless:

...one will never actually be able to "prove" that there is more democracy in granting or in refusing the right to vote to immigrants, notably those who live and work in the national territory, nor that there is more or less democracy in a straight majority vote as opposed to proportional voting; both forms of voting are democratic, and yet both also protect their democratic character through exclusion, through some renvoi; for the force of the demos, the force of
democrary, commits it, in the name of universal equality, to representing not only the greatest force of the greatest number, the majority of citizens considered of age, but also the weakness of the weak, minors, minorities, the poor, and all those throughout the world who callout in suffering for a legitimately infinite extension of what are called human rights. One electoral law is thus always at the same time more and less democratic than another; it is the force of force, a weakness of force and the force of a weakness; which means that democracy protects itself and maintains itself precisely by limiting and threatening itself.

It is that maintenance by threatening the very structure of governance which this Administration fears, and which we must demand the other two branches reassert.

Hardly a simple task at all. But, in a democracy, the ultimate responsibility lies with the governed, not the governors.