Notes on Today's Constitutional Crisis

Posted: Jun 29, 2007 12:01 AM
Notes on Today's Constitutional Crisis

Another day, another constitutional crisis. Or so the loyal opposition says. When the president decided to fire a handful of federal prosecutors who serve at his pleasure and replace them with appointees he liked better, just as the U.S. Constitution provides, he was accused of violating the Constitution. Also of introducing politics into political appointments. In short, the chief executive of the United States was accused of hiring, firing and generally acting like a chief executive. Outrageous.

Somehow, when a president named Bill Clinton demanded the resignations of every single federal prosecutor in the country, I can't remember these same partisans who now yell Constitutional Crisis at the drop of a U.S. Attorney making a peep. In partisan politics, it's who takes the action - our guy or theirs - that makes it right or wrong, not the action itself.

But all that was yesterday's constitutional crisis and general foofaraw.Today, it's the vice president who is, as is his habit, out to keep his confidential papers confidential, or maybe just all his papers.

It seems that, for the past few years, the vice president's office has been ignoring an executive order that requires every "agency" or "entity" within the executive branch to tell the Security Oversight Office (a name that could have come out of "1984" or maybe the cult movie "Brazil") how much material it classifies or declassifies, that is, keeps secret or releases to the public.

The vice president claims his office doesn't fit the definition of a federal agency within the meaning of that executive order, which in any event was not intended to cover his office. Naturally enough, the executive who issued that order - namely, the president of the United States - agrees with him.They're on the same team.

Just as naturally, a Democratic Congress is building up a head of rhetorical steam and preparing to investigate this latest Constitutional Crisis.

This is how the two-party system (and the constitutional system of checks and balances in general) is supposed to work, and clearly does.

It wouldn't do, of course, for this administration to have announced a few years back that both the president's office and the vice president's were not subject to the president's order. That would have been too simple,above-board and open. It might have been criticized. (And also avoided this whole contretemps in a teapot that's now erupted.) So the administration kept that interpretation of its order secret, or at least unannounced. How Cheneyesque.

This habitual, obsessive and in the end self-destructive secrecy is all so unnecessary - and irritating. But does that mean it's illegal? Apparently so, to hear Ron Wyden, the very Democratic senator from Oregon, tell it."The vice president is saying he's above the law," says Senator Wyden, "and the fact of the matter is, legal scholars are going to say this is preposterous."

Don't you love people who tell you what you're saying? Don't you love it when they put words in your mouth, the better to refute them? Actually, the vice president isn't saying he's above the law but only claiming that he's exempt from an executive order. What's more, the executive who issued it agrees with him.

As for what the legal scholars will say, each side can be depended on to produce its own in plenitude. You could line up all the legal scholars in the world and they still wouldn't reach a conclusion in a controversy like this. That's why cases should be tried by courts - not by U.S. senators or, for that matter, newspaper columnists.

By now any sign of logic in this dispute has been thoroughly smudged by alot of gratuitous argument over whether the vice president is a member of the executive or legislative branch of the federal government. If the executive, his critics argue, he would be subject to the executive order he's actually been exempted from. (You still with us?) But if he were a member of the legislative branch, the order would not apply. So which branch does he belong to?

The vice president is, of course, a member of both those branches, depending on whether he's presiding over the U.S. Senate, a legislative body, oracting in an executive capacity when advising the president or working together with the Cabinet. In either event, the question is scarcely centralto this hoked-up "crisis."

The legalistic grandiloquence about what The Experts would say has only begun. In a country where all hold the Constitution sacred and decisive, the central political question is always going to be which party is truer to the Constitution and its vision. So no one should be surprised that the usual brigade of lawyers is being turned out by both sides.

"There is hardly a political question in the United States," the venerable Tocqueville observed long ago, "that does not sooner or later turn into a judicial one." When that sage was writing, Andrew Jackson was the president accused of violating the Constitution. Presidents change, the accusation doesn't. As usual, our French visitor proved not only a percipient observer but a remarkable prophet as well.