Stone, Paper, and Scissors of Power

I was heartened in a way to hear so much discussion about separation of powers among the branches of government during the Alito hearings. Some of that discussion, though, gave cause for concern about just how badly a constitutional showdown might turn out.

The Senate Judicial Committee did manage to squeeze a statement from Alito about no one, including the President, being "above or below the law." But they never quite pinned him down on the matter of whether a President can dictate his own interpretation of laws passed by Congress, as Mr. Bush did in the case of John McCain's torture amendment to the defense appropriations bill.

Arlen Specter and others seemed to be pushing for some sort of statement from Alito to the effect that the Supreme Court doesn't have authority to declare a law passed by Congress unconstitutional. One has to consider: if the Supreme Court can't check Congress from passing unconstitutional legislation, then who can? A president can veto a bill, but Congress can override that veto. Do Specter and like-minded members of the legislature believe they should be able to pass laws contrary to the Constitution without going through the process of amending the Constitution itself?

Some Committee members pressed Alito for an opinion on whether Congress can limit or change the courts' jurisdictions. Alito, correctly, I think, replied that the issue has not been decisively decided.

But let's imagine for a moment that it has been, or soon will be. What if Congress had full authority to override anything the Supreme Court decided through simple legislation or by limiting the judicial branch's jurisdiction whenever it wanted to. Let's further imagine that the Court ruled the President could interpret Congressional legislation in any manner he chose to. If those things were to happen, we would have a power structure in which no branch of government could effectively check another: stone beats scissors, scissors beat paper, paper beats stone…

If you think this scenario could never come to pass, think again. A fairly good argument says this is precisely what's happening right now.

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The daisy chain in our current constitutional power struggle begins at the Authorization for Use of Military Force (AUMF) passed by Congress in 2001 the week after the 9/11 attacks, which authorized Mr. Bush to…

…use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

This "specific statutory authorization" is the rubric under which the Bush administration has legally justified everything from torture to rendition to secret interrogation camps to domestic spying to holding U.S. citizens in custody without due process. Time and again, they have argued that Mr. Bush has authority to ride roughshod over the Constitution, treaties, and other laws of the land because Congress told him he could.

That's how Mr. Bush interprets the AUMF, anyway.

And wittingly or not, the Supreme Court has upheld Mr. Bush's interpretation.

In June of 2004, the majority ruled that Yaser Hamdi, a U.S. citizen detained as an enemy combatant, should be given "a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker."

However, the decision written by Sandra Day O'Connor also affirmed that Mr. Bush's detention of Hamdi was an acceptable "exercise of the 'necessary and appropriate force' Congress has authorized the President to use."

With this statement, the Supreme Court tacitly legitimized Mr. Bush's claims of authority to interpret congressional legislation in a way that allowed him to treat the AUMF as a bill of attainder (which the Constitution clearly prohibits) and to ignore rights guaranteed to U.S. citizens under the Bill of Rights and the Fourteenth Amendment.

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Senator Lindsey Graham's (R-South Carolina) habeas corpus amendment to the defense appropriations bill provides another opportunity for cynical separation of powers manipulation. Graham's amendment denies the right of "enemy combatants" in Guantanamo Bay, Cuba to file habeas petitions. This is fuzzy constitutionality at best. Section 9 of Article I allows the legislature to suspend habeas only "when in cases of rebellion or invasion the public safety may require it." One has to wonder how Graham and others consider our present situation to be one of "rebellion or invasion," but for the time being we'll grant them their point.

More alarming is what the Bush administration is trying to do with it. As reported by The Observer, the administration has asked the Supreme Court to make the habeas bill retroactive. That would nullify over 200 cases in which Guantanamo prisoners already asked for court review of their detentions.

It would also amount to an ex post facto law, which, like bills of attainder, the Constitution expressly prohibits.

If the Supreme Court goes along with the latest Bush administration stratagem, mark that day on your calendar. It will become the official anniversary of America's transition from a constitutional republic to a militaristic dictatorship.

And your great-great grandchildren will know it as "Patriot Day."