Wednesday, December 28, 2005

Legislating from the White House

For years, Republicans have urged a distinction between judges who are "strict constructionists" (their type of judges) and those they call "activists" (crazy liberals). Activist judges, they tell us, are judges who "legislate from the bench", in other words, judges who supposedly make up the law as they go along. President Bush frequently describes his own judicial nominees as judges who do not legislate from the bench and instead will simply apply the laws as written by Congress, or as stated in the Constitution. We rarely, if ever, hear specific examples of actual decisions deemed to be the result of judicial activism, although we can assume Roe v. Wade is a case conservatives see as an activist opinion.

Time for Civics 101. Only one branch of the federal government is assigned authority by the Constitution to make the laws. That is, of course, Congress, the legislative branch. Just as judges may not legislate from the bench, so too the president may not "legislate from the White House". Congress makes the law, the president executes the law (hence the term "executive branch"). The presidential oath of office acknowledges this constitutional reality.

George W. Bush is an activist president. The president has admitted as much. He has told us he decided to ignore the law Congress passed regarding wiretapping--the Foreign Intelligence Surveillance Act. This law requires the administration to seek a warrant or court order when listening in on Americans' telephone calls or peeking at their emails. The president claims the law is too restrictive--it doesn't give him the speed or flexibility needed to fight this new (and vaguely defined, as well as undeclared) "war on terror".

Many observers have pointed out the law actually does allow the president to act quickly and seek a warrant up to 72 hours after surveillance has begun. Let's leave that (important) point aside for now. What I'm addressing here is the president's defiant assertion that he may rewrite federal statutes on the fly, without going through the constitutionally required legislative process.

If the president disagreed with FISA and thought he should have more power to engage in surveilance, he could have proposed new legislation, or changes to FISA. He chose not to and simply rewrote the law himself, unilaterally removing the requirement that a warrant or court order be obtained. Whether he is right or wrong about what is needed is not the issue. The question is whether the president may take over Congress's role as lawmaker. That is why we have a constitutional crisis on our hands, and that is why many conservatives are very concerned. That is why conservative pundit George Will has voiced concern about presidential overreaching, that is why the Washington Times ran an op-ed criticizing the warrantless surveillance, and that is why Republican Senators Spector, Snowe, Hagel, and others are calling for congressional investigations.

The administration's distinction between activist and strict constructionist judges is, in fact, not as neat and simple as it sounds. But that is not the issue here. Whether or not there actually are activist judges, there certainly is an activist president. It is to be hoped that conservatives who condemn activist judges will have the intellectual consistency to reject an activist president. Permitting or condoning this activist president means setting aside our constitutional framework and accepting a president who is, quite simply, above the law.


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