The upshot of yesterday’s Hamdan decision seems to be that the Supreme Court has rather vigorously slammed the door on the idea of an imperial presidency, the one where our executive branch takes input from the legislative and judicial branches under advisement — if it feels like it — before doing anything it damn well feels like doing. That’s my takeaway from it, anyway.
Naturally, I’m pleased. I’m against the concept of an imperial presidency in a general sense, and I’m particularly against it in this specific instance, because I’ve never gotten past the feeling that the Bush people think of the Constitution as anything other than an annoying old document that they don’t understand why they have to pay attention to, because they’re not like other people. Well, guess again, Mr. President. Not even a war lets a president get away with this. As Senator Lindsey Graham — a Republican, I’ll note — said yesterday: “There is a strain of legal reasoning in this administration that believes in a time of war the other two branches have a diminished role or no role. It’s sincere, it’s heartfelt, but after today, it’s wrong.”
The fact that comment comes from a Republican — and that more than a few Republican and conservatives felt uncomfortable with the administration line regarding its power — points out something that I’ve noted before, which is that the administration’s attempted power grab over the last several years has nothing to do with Bush’s nominal political orientation. There’s nothing inherently Republican — certainly nothing inherently conservative — in the Bush administration’s posit of an executive branch supreme above the legislative and judicial branches; it’s a political philosophy cooked up entire in the Bush administration itself, and sprung not from a genuine and coherent foundation of ideas, but required because of the personal opinion of the president (and his advisors, such as the vice-president) that they shouldn’t have to consult the courts or the legislature. It’s the ultimate version of putting the cart before the horse.
This is, thankfully, why the Bush theory of executive power was doomed: It’s built on irrational premises, and it was required to compete with a rational theory of executive power, which is to say, the one encoded into the Constitution. The Bush folks are clever enough to attempt to spin a political philosophy out of their leaders’ unwillingness to follow the Constitution; they were not wise enough to make a durable argument from it (or alternately, not wise enough to realize it couldn’t work). Personally, I think it was vitally important that the Bush Theory of Executive Supremacy was whacked down while Bush was still in office. I don’t think it would survive anyway (I try to spin scenarios in which a Hamdan-like decision comes to the Court in a Democratic administration, and Scalia and Thomas don’t vote against it, and I just can’t), but all things told it’s better it dies with its creator still in office.
There are some folks out there who suspect that this doesn’t change anything; that an adminstration that would posit a theory of executive power would not feel obliged to listen to the court, and that Bush will pull an Andrew Jackson, basically daring the Court to enforce the decision while doing what it wants to do anyway. I think these people need to chill the hell out. There’s a difference between promoting a legal theory and proceeding from it in the absence of a ruling, and proceeding from it after it’s been discredited. Maybe I’m dumb, but I don’t see examples of where the Bush adminstration has gone out of its way to do the latter. This administration may view the Constitution as inconvenient, but it’s not comprised of stupid people, either. It wants to expand what is seen as the legitimate power of the executive branch — not have the executive branch seen exercising illegitimate power. I strongly suspect it’ll abide by the ruling. It will wriggle and twist and turn in all ways to try to preserve its theory of executive power under the constraints of the ruling, of course — how could it not — but it’ll follow the ruling.
And if it doesn’t? Well, then. Impeach the president. Most readers here know I am generally virulently against impeaching the president (any president, but even this one) under nearly all circumstances. But in the almost unfathomably improbable circumstance that George Bush decides to ignore the Supreme Court ruling and do things his own way, thereby placing himself both outside and above the rule of law, then impeachment, trial and removal from office are reasonable and rational remedies (I suspect the impeachment, trial and removal from office of the vice-president will happen concurrently. Hello, President Hastert!). But of course, if Bush & Co. see themselves as above the law, it’s not likely they would respond to impeachment, now, is it. And then we’d have all sorts of interesting Constitutional crises. I don’t see this happening.
What I see happening is the Constitutional rule of law re-established, and the executive branch of the government returned to its co-equal position with the legislature and the judiciary. I’m pretty happy about that.