Wednesday, July 25, 2007

Separation of Powers Showdown

The President's position that his aides are absolutely immune from testifying before Congress, despite congressional subpoenas for information on the abrupt firings of federal prosecutors, sets up a separation-of-powers showdown that will be resolved ultimately by the Supreme Court - which these days is an increasingly scary proposition.

As reported by MSNBC, "the White House has said that Chief of Staff Josh Bolten and former legal counselor Harriet Miers, among other top advisers to President Bush, are absolutely immune from subpoenas because their documents and testimony are protected by executive privilege." In response, House Democrats today are preparing contempt of Congress citations against Bolten and Miers.

This is just the latest in George W. Bush's assault on the Constitution. The Supreme Court, IF it adheres to precedent on this issue, will hold that executive privilege does not extend to allow aides to avoid responding to congressional subpoena. This would be the correct decision, in that it recognizes the proper separation of powers among the executive and legislative branches envisioned by the framers of the Constitution.

That's a big "if," though, since the Roberts Court has demonstrated in its recently-completed 2006-07 term that it is perfectly willing to discard precedent when it might have more cautiously decided the cases on other grounds. And we're perilously close - if we're not there already - to having a majority of the Court ratify the President's extreme views of Executive power. Even a case that seemed as open-and-shut as the 2006 Hamdan case, holding that the executive lacked the power to unilaterally limit the due process rights of enemy combatants imprisoned at Guantanamo Bay, was only 5-3 (actually, 5-4, since Chief Justice Roberts recused himself, having decided the case below in favor of the President while on the DC Federal Court of Appeals).

I've said it before, but this is yet another illustration of the notion that our constitutional regime has an Achilles Heel in the vast power of the Supreme Court - i.e., if we ever get five justices (enough for a majority) who consistently vote in ways that systematically undermine the text and spirit of the Constitution, there's little We the People can do to reverse the decisions of these appointed-for-life Justices. Oh, technically we can amend the Constitution or argue that Congress will impeach the Justices, but both of these alternatives are so remote as to be virtually non-existent.

Stay tuned for the future of our constitutional democracy.