Yesterday’s hearing on legislative and executive powers before the Judiciary Committee has generally a great deal of media and blog discussion. However, one of the more curious takes was written by Dana Milbank of the Washington Post. Entitled “Activism on the Court? GOP Wants To Be The Judge,” the article portrays the hearing as a hypocritical and “newfound love of activist judges.” Having testified at the hearing, I was mystified by the spin on the hearing. Ironically, Milbank was criticized in the hearing by a member for allegedly distorting a prior hearing’s content and focus — an issue that we discussed in December. In a tense moment, Milbank (who was sitting a few feet from the members at the press table) was criticized for his prior column where he portrayed a Judiciary hearing as largely about impeaching President Obama. He was challenged as misrepresenting that hearing which contained only passing reference to impeachment as one of the various options left to Congress by the framers in serious conflicts with presidents. This now appears a continuing battle between the columnist and the Committee that will only grow more intense with this latest column. Here is the video link to the testimony so you can reach your own conclusions.
I actually enjoy Milbank’s writings. He is often clever and funny in his covering of Washington stories. He is a very intelligent reporter and has been around this city for a good long time. In fairness to Milbank, it is also important to note that he is an opinion writer and readers look to him to give his unique take on stories. He is entitled to focus on the aspect of the hearing that he finds most telling and interesting. A smaller but accurate account appeared on the same page by David A. Fahrenthold (which is different from the last controversy). Notably, however the print version of that piece is entitled “Lawmakers Get Pep Talk In Standing Up To Obama” which is hardly a fair description of a hearing reviewing four pieces of legislation and exploring the legal standards that would apply to such cases. (The web version here is more fairly entitled). Milbank’s article is available here.
The article in the Post however seems oddly unconnected to the hearing. The thrust of Milbank’s article is that Republicans now want activism in seeking standing to sue the President. Notably, Milbank does not explore the opposing conflict in the position of some Democrats in resisting judicial review and voicing support for a president with unilateral and seemingly unchecked powers. Milbank also suggests that any such lawsuit would be “frivolous.” While he does concede lower in the article that “[t]here are legitimate questions to be asked about the long-term shift of power from the legislature to the executive,” he portrays the hearing as all about wanting to get activist decisions from the courts.
Ironically, as discussed in my testimony below, the hearing has little to do with the merits of any of the controversies over the circumvention of immigration, health care, and other laws. We were discussing the ability of members of Congress to simply gain access to the courts in conflicts over the separation of powers. The Supreme Court has made an unholy mess of standing jurisprudence, a view shared by many if not most academics in the field. It is true that this issue pits Republican members against ultra-conservative jurists like Scalia (and puts Democrats in positions of supporting Scalia’s narrow views on standing in favor of presidents). However, that is what makes this a unique opportunity. If the Democrats were to fight for their clear institutional authority, we could see a unified Congress in fighting for separation of powers principles. This is about process not policies. Courts have increasingly removed themselves from separation of powers disputes and the result has been raw and dysfunctional conflicts between the branches.
Republican members in the hearing were highly critical not just of President Obama but President Bush. That is a moment that should be acknowledged and not misconstrued in coverage. Moreover, the failure to consider the silence of other members in the face of unprecedented circumvention of the legislative branch would seem worthy of equal discussion.
Milbank also attacks one of the three expert witnesses in the hearing: Professor Elizabeth Price Foley (right) who is portrayed as hypocritical given an earlier article that she wrote in the Daily Caller entitled “Why Not Even Congress Can Sue The Administration Over Unconstitutional Executive Actions.” Foley explained at length when confronted in the hearing that she did not choose the title — any more than Milbank or Fahrenthold chose the titles this morning. She also explained that she was referred to the weight of the cases as they stand now — not her personal view. From Warren Burger to William Rehnquist, the Court has made it more difficult for people to get access to the courts to challenge unconstitutional actions. However, there remains considerable confusion over the lines of standing jurisprudential, particularly for lawmakers. I have long been an advocate for legislative standing and have represented members in challenging executive actions. I though Foley gave an accurate and impressive account of the standing cases from their standpoint. It was not some “pep talk” or call for activism, but a frank and fair discussion of the issues remaining in these cases. I have never previously met Foley but I was very impressed with her knowledge of the cases and issues. Her testimony is available at the link below and was detailed and thoughtful. Also available is the opposing testimony of Professor Christopher Schroeder of Duke University Law School (left).
I also was surprised to read that the hearing “filled three hours with accusations and wild hypotheticals: ‘Tyranny. ‘Dangerous and scary moment.’ ‘Imperial presidency.’ . . . ” These words are taken out of context. Tyranny is the danger described by Framers in the concentration of power and is used widely in academic work on the aggrandizement of power. “Imperial presidency” is a term used to describe the Nixonian concept of a dominant presidency. There are clear dangers presented by the concentration of power in our system and we have to see beyond how we feel about this president or his critics. There is a dangerous and destabilizing shift without our system that did not begin with this President but has certainly accelerated under him.
Once again, I value the work of Milbank who has long been a strong and insightful voice in the media. However, I do not view this piece — even as an opinion piece — to fairly represent the substance or the statements from the hearing. Because I honestly believe that we are in the midst of a dangerous shift of power within the tripartite system, I was disappointed. Milbank is someone who could add an articulate voice in explaining the dangers posed by a dominant president in a system of shared powers. Our system is changing as we are too caught up in this poisonous political debate to stop and take note of the implications of those changes. This will not be our last president, but these powers will remain. Those issues are explored below in the testimony that I gave at the hearing. The other witnesses have testimony available on this site.