The Weekly Standard Line of Bull

Predictably, Bill Kristol's Weekly Standard has jumped on the presidential powers bandwagon, claiming that Mr. Bush has inherent extraordinary authorities in time of war. "The Law and the President" is the Standard's standard compendium of fabrications, sophistry, and neo-non sequiturs.

Its author, Harvey Mansfield, is a Professor of Government at Harvard University. Professor Mansfield has been at Harvard almost continuously, as a student or a member of the faculty, since 1949. His article gives us reason to be concerned over what Harvard is teaching its students about government.

Like many of the administration's echo chamberlains, Professor Mansfield bases his arguments on the specious notion of "extra-legality." The Founders created an extra-legal office of the president, he says, and the Constitution gives the executive extra-legal powers to be commander in chief of the military, make treaties, veto legislation, and grant pardons.

This is, of course, Orwellian Newspeak poppycock. The Constitution and the laws and treaties derived from it are the supreme law of the land. Any powers granted to the president are legal, not extra-legal, and when a president acts outside his legal constitutional authority, those acts are not extra-legal, they're illegal.

Half Truths and Total Mendacities

Mansfield conveniently neglects to mention the constitutional checks on presidential authority. Yes, the president is commander-in-chief of the military, but Article I of the Constitution assigns all other war powers to the legislature. Among the congressional war powers are the authority to declare war, regulate the military, suspend habeas corpus and call out the militia in cases of rebellion or invasion.

Mansfield also fails to note that a president can only make treaties with approval of two thirds of the Senate. He doesn't explain that Congress can override presidential vetoes, or that a president's powers of pardon do not apply to cases of impeachment. He also blithely skips over the parts of the Constitution that give Congress sole authority to remove public officials from office--including the president and any justices he may appoint--through the impeachment process.

One has to wonder how a distinguished Harvard Professor of Government could have failed to mention those things, since he was talking about the Constitution and all, especially considering that he lectures on American constitutionalism.

Maybe all that checks and balances stuff just slipped his mind.

The Standard Line of Bull

Having framed his position on a false main assumption ("extra-legality") and half-truths (partial explanation of constitutional executive powers), Mansfield embarks on a graduate level exercise in pretzel logic on executive responsibility. "To be held responsible," he says, "the executive must be able to act independently." A major component of independent executive action, Mansfield asserts, is the president's ability to act in secrecy.

…secrecy is compatible with responsibility because, when one person is responsible, it does not matter how he arrives at his decision. To blame or reward him, one does not have to enter into "the secret springs of the transaction," as would be necessary if responsibility were shared.

If we were to buy Mansfield's off-the-tracks train of thought, we would accept the notion that a president can only be held responsible if he's allowed to do things nobody can hold him responsible for because nobody knows what he did.

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It's possible that Professor Mansfield has been locked in the highest ivory tower in our land for so long that he can't see the nonsense in his own nonsense.

But I doubt it.

Professor Mansfield's article is endemic of the sort of thing we see in The Weekly Standard, The National Review and other conservative media venues. It's a cynically crafted piece of partisan advocacy disguised in the sheep's clothing of honest scholarly analysis. The Bill Kristols and William F. Buckleys of this world are always on the lookout for academic guns-for-hire who will support the neoconservative agenda, and the Harvey Mansfields of this world are always happy to take their money.

That's the saddest aspect of the state of the national discussion today. Intellectual debate is both intellectually and morally bankrupt. "Professors of truth" like Doctor Mansfield have no more regard for the truth than do 1984-style "Hate Week" hacks like Bill O'Reilley and Ann Coulter.