Bush's Saturday Night Massacre

Why aren't the national media running with this story? Bush is apparently quashing corruption investigations of prominent Republicans by replacing diligent US Attorneys with political hacks, circumventing Congress through a backdoor provision of the Patriot Act. You have to read it to believe it.

Two years left. Although at this point, Bush has done so much damage to the presidency and to the country that I'm not sure the Executive will ever be restored to its proper shape and place.

Congress's War-Making Powers, Again

Some "expert" on CNN named Amy Walters just agreed with the anchorwoman that Congress doesn't have a "concrete" way of influencing the President's "broad" war-making powers under the Constitution. Both of these individuals claimed that Congress's only point of leverage here is the power of the purse. Yet here is the relevant text of Article I Section 8 of the US Constitution, laying out the powers of the Congress with respect to war and military affairs:

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces

And the Constitution says of the President's powers only that he is "Commander-in-Chief." Now you can stare at that "commander-in-chief" provision all day and read all you want into it, as the President's lawyers do. But the clear intent of the Framers, to me, seems to have been to avoid the concentration of military power in the Executive. There is a powerful argument for at least shared or co-equal responsibility between the branches with respect to war-making (what Harold Koh has called "The National Security Constitution"), if not a pre-eminent role for Congress. My reading of the C-in-C clause is that it limits the President's discretion to everyday management and tactical decision-making in the Armed Forces, as would be prudent given the need for unitary and expeditious action in a theater of war. But at all times the President is to "Take Care that the Laws Be Executed," laws which the Executive after all has signed and made effective, no less in the realm of national security than on any other subject.

Come the Constitutional Crisis

My sentiments exactly:

the president has ignored the Congress, not consulted the 110th Congress in any real way, has ignored the now longstanding views of the majority of the country's citizens and wants to plow ahead with an expansion of his own failed and overwhelmingly repudiated policy. The need for Congress to assert itself in such a case transcends the particulars of Iraq policy. It's important to confirm the democratic character of the state itself. The president is not a king. He is not a Stuart. And one more Hail Mary pass for George W. Bush's legacy just isn't a good enough reason for losing more American lives, treasure and prestige.

With this President, even more so than Nixon, Congress has no choice but to aggressively assert its constitutional prerogatives in defense of the popular will. War-making is not an area where Congress may merely advise and consent; as C.J. Marshall put it in Talbot v. Seeman (1801), Congress has the "whole powers of war" save, arguably, the tactical battleground decisions and emergency response powers implicit in the commander in chief clause.

Whaaa....?

Some time, maybe years from now, I hope some historian provides a convincing explanation for how lunatic right-wing cultural-political theories managed to get such a respectful audience in the post-9/11 discourse. For what it's worth, this is a pseudo-academic gloss on the argument given by Jerry Falwell and Pat Robertson for who really deserves the blame for 9/11.