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.
randyjet
dredd, Unfortunately you forget that they were FROM Afghanistan, their nationality makes NO difference.
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There nationality makes all the difference in this case.
They (15 of the 19 hijackers) were Saudi citizens working with Saudi agents within the U.S.
That is according to two Senators, one of them a chair of the Senate inquiriry into 9/11.
It is THEIR nationality makes no difference by the way. It is also irrelevant since they were acting against their home government. It is the old guilt by association you like to denounce on ocassion. The leader was from Egypt too. Think we should hold Egypt accountable?
A big test may be sooner than we think. The Russians have watched our proxy wars and replacement governments move east right to their doorstep. Now Kerry warns the Russians to stay out of Ukraine. After Napoleon and Hitler, I am sure this looks pretty familiar to them–at least I bet this is how they are feeling. If push comes to shove there, how will the current government situation present itself? Do we all feel comfortable with Obama ordering air strikes on Russian troops? Pretty big stakes here. I actually thought we spent most of the last century trying to avoid this.
Randy, Afghanistan did not attack us on 9/11. The hijackers were funded by the govt. and private individuals from Saudi Arabia. There was no need to go to war, even against Saudi Arabia, (which of course the US would not do, because they are one of our BFFs!)
However, even if you would like to believe the Afghan govt. attacked us on 9/11, you still need to keep faith with our Constitution. This is not about Democrats and Republicans, who is evil and who is the supposed lessor evil–hard to tell when they both act exactly alike! It is about being a citizen of the US and standing up for the rule of law.
We now have an out of control executive. We have a supine congress who, along with the upper levels of the judiciary do not care about upholding the rule of law, any more than the executive does. They are content to aid the concentration of illegal power in the hands of the executive. This means that we are in real trouble in the US. We truly have not one branch of govt. willing to uphold the Constitution. That should scare you a lot more than any terrorist attack.
However, through the power of propaganda, the citizens of the US fear terrorists while concurrently being in love/worship with their particular president/party of choice. Too many are willing to jettison the rule of law. Until that changes, things will continue to march to the tune of the deep state, served by both parties and their minions.
http://www.huffingtonpost.com/2014/02/26/luis-gutierrez-immigration_n_4860726.html I agree Annie.
Wasn’t Marbury vs Madison an act of judicial activism….. But I do think today they have no balance…. Except for corporate interest….
Professor, when you said, “This is about process, not policies” you might as well be speaking in tongues as far as the Dem “duop” chorus here.
I believe that Professor Turley is sincerely attempting to bring to light the possibilities of an even greater abuse of Executive power from a future President. I do not think the Republicans at that hearing display the same sincere desire. It’s evident to me that they are using these hearings for purposes less honorable than reigning in Executive power. Swarthmoremom, thanks for posting that clip.
Good discussion all. My point is that the blanket application of the term “terrorist” and the hysteria that follows it, seems to allow for knee-jerk reactions. It’s human nature. And that fear can be exploited–which also seems to be human nature. Like “nazism,” “communism,” etc. Whatever relevant “ism” threat is the word of the day. It’s hard to separate ourselves from events and analyze them sometimes, but we need to. This is where we can lose ourselves if we don’t hold to the process.
There are some things a people should not do, even if a terrorist attack occurs in their nation. Those things include just about everything the people of the US have done.
First, we are a very easy people to propagandize, to include liberals who believe they are far too superior to ever fall for govt. lies. 9/11, 9/11, 9/11–scream the people who want us to jettison the rule of law, the division of powers in our tri-partate system of govt. and who want instead wars, prisons, abridgment of rights and lack of decency as human beings.
Concentration of power in the executive is dangerous. This concentration was warned about from the founding of our govt. The willingness of people to sacrifice our rights, to go to war, to imprison the innocent, to allow financial looting of the treasury by the financial/prison/war contractors is incredibly stupid, cowardly and dangerous. This cannot be emphasized enough.
We will not restore the rule of law when people are so cowardly that they will not stand with our Constitution because they are afraid of terrorist attacks. yes, there will be another terrorist attack. The actions of this govt. pretty much guarantee this will occur. It therefore is incumbent on US citizens to have the courage to stand with the rule of law, with justice. It is incumbent on the people of the US to stand against executive power, even when wielded by the man or woman they most love and adore. There is something more to our nation that worship and adoring the leadership! There is justice. Be for justice.
Jill, Please tell us all what horrible things we did to Afghanistan that caused 9/11. Was it the $300 million Bush gave them for eradicating the poppy crop? Or maybe it was all the military aid we gave them to get rid of the Soviets? I am at a loss to know what we did to justify such an attack.
randyjet
slohrss, You forget that 9/11 caused more deaths and destruction than the attack on Pearl Harbor. I think that is quite enough dead bodies for us to consider terrorists to be a big enough threat equal to that of imperial Japan.
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But they were from and funded by Saudi Arabia primarily, our oil-drug supplier, so they got a get out of jail free card, and we invaded other countries instead.
Where do we go with that?
dredd, Unfortunately you forget that they were FROM Afghanistan, their nationality makes NO difference. You also forget that the Taliban government defied the UN to turn over the terrorists and refused to take any action against them. Saudi Arabia wanted them too so that they could put them on trial and execute them, so to blame the Saudis is delusional. Try using some simple logic and facts for a change instead of prejudice and libel. If you want to go after all the enablers, then we need to put Sen. Phil Gramm on trial since he was the prime mover of legislation to allow such funding to be made. While I think he is more than deserving of some prison time for many things, this would be a stretch I think.
So the Taiban turned three buildings to powder?
The Taliban supported and allowed Al Qeada to do that. Thus they are as guilty of that crime as accomplices. I would have preferred a declaration of war against Afghanistan, but using US forces to intervene is still good as we did during the Barbary wars without declaring war. The actions the US took were perfectly legal and in accord with our past practices that were used for the Barbary wars as well as being sanctioned by the UN.
Slohrss29 (The threat of terrorists is not only to put fear into millions by their acts but the changes in laws, eg the “Patriot Act” that allows for a consolidation of powers/overriding constitutional protections,
Randy,
I think that where your analogy breaks down is the fact the 9-11 attacks were a “one off” attack, whereas Japan had one of the most powerful navies and air corps in the world, and were prepared and willing to use them repeatedly to conquer country after country with military force. If our Navy had not gotten lucky at Midway, the war would not only have lasted longer, but cost many more lives than it did. And the outcome would not have been nearly as certain.
Not to say that the terrorists are not a danger, but they come closer to being a criminal enterprise than a true military threat to our country. Here is something to compare the threat with. Since 9-11, more people have died every month for lack of health insurance than were killed or wounded in the 9-11 attacks. Now, if the government wants to mount drone assaults on some of the big insurance companies and their enablers, I am available if they need help getting the coordinates.
http://news.harvard.edu/gazette/story/2009/09/new-study-finds-45000-deaths-annually-linked-to-lack-of-health-coverage/
http://my.firedoglake.com/toddq/2012/08/18/lack-of-health-insurance-isnt-the-largest-killer-within-the-u-s-health-care-system/
OS I agree that terrorists are not the exact equivalent of the Nazis or imperial Japan, but as we have seen they can do just as much damage in their strikes. They are also not the same as criminals either. Instead I think that they are equivalent to civil insurrections in their capacity to make war and cause similar damage That is a more accurate definition I think for legal and military actions.
I also agree about the insurance industry and since I grew up in the Hartford, CT area, I know I can give good intel for drone strikes. Plus all my relatives are retired from those companies, so I have no problem with that either. CIGNA by the way is not in Hartford, it is out in Bloomfield, CT now. I got a tour of the place when they opened their new offices back in the early 60s.
What’s in a name? I think that is the whole basis of Professor Turley’s action. This whole “terrorist” notion has turned into a blank check. While it is wrong to me, terrorism is just war by any other means. A better foreign policy–or at least a coherent foreign policy would help that situation tremendously. Right now, our foreign policy just manufactures terrorists. We’ll keep killing their kids, and they’ll want to kill us back. While a threat, I do not see terrorists as the same threat as the advancing Nazi war machine that was swallowing up the world at the time.
slohrss, You forget that 9/11 caused more deaths and destruction than the attack on Pearl Harbor. I think that is quite enough dead bodies for us to consider terrorists to be a big enough threat equal to that of imperial Japan.
While I agree with much of Prof Turley’s comments and agree that there is a dangerous shift in power to the executive, I have to disagree that Obama is anywhere close to that of Nixon’s whose infamous dictum that if the President says it is legal, it is. When and if Obama makes that his rule, then I will join in the outcry and even support impeachment. My position is that one has to take into account the actual political gridlock that is unprecedented in recent times. We are no longer a pastoral country which could take things slowly and at our leisure and let things work out over time.
One instance is the NLRB sabotage by the GOP which simply seeks to overturn established laws by refusing to allow a quorum to be able to function. That is an example of legislative grab for power that is unconstitutional which uses the position of a minority to get by other means what they cannot get by normal legislative means. One has to take that into consideration before one can claim executive overreach. Using a fight analogy, it is ignoring who hit first in the fight. Had the GOP done their job under law, there would be NO need for Obama to make recess appointments to keep some governmental agencies functioning. Another example of executive power to shift money that was valid was the Manhattan Project in WWII which had to be hidden from most of Congress and the public. As he pointed out in his testimony, it is also the fault of Congress for not being more specific in the use of those funds.
I see Prof Turley’s point on much of these actions and these are questions that have to be raised to keep things within some bounds because such precedents do lead to a slippery slope in the future. I am willing to give more slack in many of these things given the whole picture.
I am not as troubled as many about the use of drones in going after armed combatants or activists abroad who are US citizens who are working with and assisting terrorists. So far nobody has been willing to answer my question as to whether or not during WWII, it would have been legal for the Army Air Corps to bomb Ezera Pounds villa when he was broadcasting for the Axis. I think that it would have been perfectly legal and right if FDR had ordered it. That hardly would have made ALL US citizens at risk of Presidential assassination when overseas. I think that common sense should prevail in matters like this. I WILL get upset if they use drones to kill US Muslim students overseas who are in Afghanistan trying to enjoy the beaches there on Spring break.
Thank you for your efforts Jonathan Turley. It just seems amazing to me that those DC folks held in high esteem seem to be so short sighted. As was pointed out recently on your blog, these folks seem to just exist for the chance to climb on a fence just to throw rocks at the other. Your argument appears pretty straight-forward that you would like to stop a future “Dick Cheney” scenario–complete with an even bigger stick. Is it really that hard to comprehend for most people? We do not go back on these instances where critical moments become history. The time is here. We are very fortunate that you have decided to put your foot down and make the effort.
Do you not think that this president has a laundy list of impeachable actions?
“newfound love of activist judges” – Milbank
Actually it was oldfound activist judges who lacked standing to distort standing long ago, and recently, but they did it anyway.
Let’s just make Milbank the topic of our comments, then… Shall we?
I got into an edit war once over on the Second Amendment wiki.
I was trying to add text relevant to the 1939 Miller ruling, which held that a sawed off shotgun is not a militia weapon. This is relevant, since the Second Amendment begins with the “whereas” clause, “A well-regulated militia…”
The conservative gun owners to hawkish guard the page refused to allow any such edits through. They kept citing the Heller and MacDonald rulings during the Bush Administration, where the Supreme Court basically held that the “whereas” clause at the beginning of the Second Amendment was just for decoration.
The hawkish gun nuts kept asserting that the Heller ruling restored the “true” meaning of the Second Amendment.
Conservatives definitely like activist judges. They just only like the ones they like.