Presidential Power

The New York Times Magazine section will publish an important article on Jan. 8, 2006. Written by Noah Feldman, NYU law professor, and entitled, Our Presidential Era: Who Can Check the President? it documents the rise of presidential power from the beginning of the Republic to today. The argument presented so persuasively is that:

For better or worse, though, this is not the system envisioned by the framers of the Constitution. The framers meant for the legislative branch to be the most important actor in the federal government: Congress was to make the laws and the president was empowered only to execute them. The very essence of a republic was that it would be governed through a deliberative legislature, composed carefully to reflect both popular will and elite limits on that will. The framers would no sooner have been governed by a democratically elected president than by a king who got his job through royal succession.

Professor Feldman explains that the present administration has “gone too far” in its usurpation of power. He is sanguine about the Supreme Court’s willingness to reign in this president, especially if Sam Alito ascends to Justice O’Connor’s seat. After all, “Two decades ago, as a deputy assistant attorney general, Alito argued in a memo that the president should issue "signing statements" when approving legislation - an effort to give the president influence over the courts' power to say what the laws mean.” See, Bush to Congress: “Drop Dead! infra.

If the courts won’t bring a halt to the President’s runaway power grab, who will? Professor Feldman lays out a series of steps that Congress can take to reverse the trend. His conclusion bears repetition:

No court alone can do the job of protecting liberty from the exercise of executive power. For that most important of tasks, the people's elected representatives need to be actively involved. When we let them abdicate this role, the violations start to multiply, and we get the secret surveillance and the classified renditions and the unnamed torture that we all recognize as un-American. Our Constitution has changed enormously over the last two centuries, and it is sure to change much more in the future. Just how it changes, though, is up to us.

Thank you, Professor Feldman.

”… and tell ‘em Big Mitch sent ya!”