This is what a failed revolution looks like (Bush's attempt to increase presidential power)

[ProSense]

Friday, June 13, 2008

This is what a failed revolution looks like

JB

In the Military Commissions Act of 2006, the President and the Republican-controlled Congress said to the Court: Stop meddling in the handling of Gitmo detainees. We do not think that habeas extends to Gitmo, and even if it does, we've produced a constitutionally adequate substitute.

In Boumediene, the Court responded: to the contrary, constitutional habeas does extend to Gitmo, and the remedy you've offered is not adequate.

It is still available to the President and Congress to try to suspend the writ, and the Court could then decide whether the suspension was successful. However, there is almost no chance that the current Congress would agree to suspend the writ. It is also likely that the Congress that passed the MCA would not have voted to suspend the writ if the choice were clearly posed on those terms and a clear statement of intent to suspend was written into the legislation. In any case, it is likely that if the MCA were presented to Congress today, much of it would not have passed.

And that is precisely the point. Boumediene is further proof, if any were necessary, that the constitutional revolution proposed by the Bush Administration after September 11, 2001 has failed.

Following the 9/11 attacks, George W. Bush and his supporters proposed a significant chance in constitutional norms, centered around increased presidential power to fight the war on terror. This vision included (1) a doctrine of preemptive war, (2) new surveillance techniques, including domestic surveillance, (3) a new system of preventive detention, including detention of american citizens without access to courts, (4) the creation of legal black holes like Guantanamo Bay and CIA black sites, (5) use of torture and torture-lite to obtain information, (6) enhanced secrecy and classification policies, and (7) a version of unitary executive theory that claimed that Congress could not constitutionally limit the President when he claimed to act under his powers as Commander-in-Chief. The last idea was also articulated in (8) the expansion of the use of constitutional signing statements, in which the President would state that he would disregard certain features of laws passed by Congress without telling the public any details about the scope or extent of his non-enforcement.

The Bush Administration sought to cement this new constitutional vision to the already regnant version of movement conservatism. It sought to reorient the conservative movement away from primarily domestic concerns after the fall of Communism and toward a focus on a muscular foreign policy and unilateral Presidentialism. This was not hard to do for two reasons: first, American conservatism needed to replace its focus on anti-Communism with a new set of foreign policy goals, pursued with equal fervor. Second, some of the theoretical moves undergirding Bush's vision of the Presidency on steroids had already been articulated in the Reagan Administration.

By 2008, we can say that this attempt at a constitutional revolution has failed. The Supreme Court resisted the Administration's attempts to get it to legitimate the new regime. Indeed, as the case of Jose Padilla suggests, the Administration tried to avoid going to the Supreme Court when it discovered that the Court would likely rule against it.

more

[enough]

1. Good article by Professor Balkin, and a warning at the end:

snip>

Even failed constitutional revolutions, however, may have lasting effects. The next president will be stuck with the problems created by the Iraq war for some time. He will have to find a solution to Gitmo, a problem for which there are few good solutions. He will have to figure out how and when to engage in preventive detention for terrorists, what sort of legal process to use, and how to reform surveillance practices. The next president, in short, will assume most of Bush's problems, as well as the new problems Bush created in his failed attempt to solve them.

For the moment, however, the Bush Administration's attempt at a constitutional revolution has failed. Yet aspects of it may revive in different forms. If John McCain is elected, he may appoint additional movement conservatives to the Supreme Court, who may be more than happy to carry out a constitutional transformation if Congress cooperates. The country may face a new terror attack, which may revive people's tolerance for tougher and more authoritarian measures. The only thing we can say for certain about the future is that it is likely to surprise us.

end>


Thanks for posting this, ProSense.

[onethatcares]

5. * did not attempt to solve any problems, what he did

has been follow thru with his handlers' plans of turning this country into a fiefdom, where citizens rights wouldn't matter to any court. Have you ever tried to get cooked spagetti back into the box? That is exactly what we'll be faced with if mcbush is elected. Peace'

[ProSense]

7. Fair warning. Still, McCain's

game is up. The media is trying to sell a McBush.

[formercia]

2. Perhaps the term 'counterrevolution' would be more appropriate

since Bush Gang has attempted to overthrow the Constitution, a direct result of the American Revolution against British rule.

[jimshoes]

3. They got much too close for comfort

and they are not quite through. I wouldn't take my eye off the ball yet. But by and large, a failure it is.

[wryter2000]

4. I dunno

I wish I could be so sure it's failed. I think it hasn't won yet, but if McCain appoints more Scalia's to the Court, they will have won.

[ProSense]

6. Not really understanding the

casual way in which you're implying that McCain will be making appointments to the court?

[wryter2000]

8. I believe he's running for President, no?

If so, it's likely he'd appoint people to the Court. Did I say anything that suggested I wanted that to happen?