What's interesting is, hardly anyone said "boo" when the Congress packed the court (adding two justices) in the early 1870s. Not even when the court reversed an immediately prior holding, on the basis that -- and this is only slightly a paraphrase -- "the law is different because the court is bigger now".
Wait, did FDR actually pack the court? Cause if I get to complain about the stuff Bush _wants_ to do along with what he's done that's a different ballgame.
Anyway, bad FDR. Bad Lincoln, suspending habeas corpus. Do that kind of stuff left and right and you're going to get lumped in with Worst Preznit Ever. Especially if you try it absent dire circumstances.
Also want to note the last 70 years (a third or so of the life of the nation) has provided a lot of precedents - both good and bad - for Presidents in these matters. Bush should be expected to have profited from that history. I sure hope his successors will profit from the history of this period.
I only read a bit of it, but isn't this the theme of Agamben's State of Exception? The argument is basically that even mild-seeming democratic governments try to expand powers by declaring emergencies--much more frequently than is generally acknowledged--and it takes a great deal of caution and work to rein them in again after the emergency is over. All democratic governments constantly struggle with this temptation, since emergencies often crop up; a sense of crisis is easy to come by and lends a sense of legitimacy to those handling it.
Also interesting that it was a Congress overwhelmingly of his own party that stopped FDR from doing it. The Senate was 76-16 Dem-Rep and the House was 334-88.
I am sympathetic with the point in the second part of your post, but I have read (I haven't clicked the link yet) that the justices were being real punks in FDRs day; ruling against his New Deal programs on flimsy pretexts because they disagreed with him politically. (I think this might have been in the Advice and Consent book.)
FDR got a lot of flack for it, even though his programs were keeping people from starving. Bush is getting some flack now, but I think the outcome of his spying is still up in the air. If it turns out that Bush was breaking the law but his actions weren't bad other than that, then I think he'll probably come out fine in public opinion.
There is no question that FDR was the most "imperial" of all our imperial presidents. He would probably still be president if he hadn't died in office.
Yeah, I'm upset with Lincoln for suspending habeas corpus. Can anyone tell me the precise details? Did Congress authorize it? That was a little bit different, since there was a real war.
I never loved FDR back when I was a conservative, but I did always disapprove of his court-packing plan. The point is that he was stopped. It isn't safe to trust any one person or administration with everything. That's why we're supposed to have checks and balances.
Unfortunately for us, there is one big difference. While FDR was imperial and tyrannical, he was at least benevolent in intention AND was keeping larger fasciest forces at bay.
The Bush League, by contrast, is far more interested in "power over" than "power for". They are less intent on changing certain aspects as they are of completely dismantling the fundamental underpinnings of modern government. In other words, they like what they see in the Banana Republics, and want to make our country like it. A far cry from the New Deal.
the justices were being real punks in FDRs day; ruling against his New Deal programs on flimsy pretexts because they disagreed with him politically
Speaking as someone who owns (and regularly wears) this t-shirt, I think that what Roosevelt was doing with the New Deal programs was, in fact, radical. I think those justices had the wrong idea of what America should be, but their idea was a very mainstream and legitimate one. In fact, it was the overwhelming consensus, in the 1920s. In other words, I think they had legitimate grounds to oppose FDR's nationalization of so many different things at once.
The Sup. Ct. may have been acting like punks in FDR's first term, but then, they may not. Some of the major New Deal programs they struck down -- the NRA, the AAA -- were dubious propositions, constituting government-sponsored cartels, and not at all what we think of when we think of the New Deal now. Even in the pre-court-packing period, they let the TVA stand. Whether they would have let Social Security stand without the court-packing threat, I guess we don't know; the opinion on that came only a little while after the court-packing speech.
Can anyone tell me the precise details? Did Congress authorize it?
According to a fairly cranky Justice Taney, these were the relevant details:
The case, then, is simply this: a military officer, residing in Pennsylvania, issues an order to arrest a citizen of Maryland, upon vague and indefinite charges, without any proof, so far as appears; under this order, his house is entered in the night, he is seized as a prisoner, and conveyed to Fort McHenry, and there kept in close confinement; and when a habeas corpus is served on the commanding officer, requiring him to produce the prisoner before a justice of the supreme court, in order that he may examine into the legality of the imprisonment, the answer of the officer, is that he is authorized by the president to suspend the writ of habeas corpus at his discretion, and in the exercise of that discretion, suspends it in this case, and on that ground refuses obedience to the writ.
As the case comes before me, therefore, I understand that the presidence [sic] not only claims the right to suspend the writ of habeas corpus himself, at his discretion, but to delegate that discretionary power to a military officer, and to leave it to him to determine whether he will or will not obey judicial process that may be served upon him. No official notice has been given to the courts of justice, or to the public, by proclamation or otherwise, that the president claimed this power, and had exercised it in the manner stated in the return. And I certainly listened to it with some surprise, for I had supposed it to be one of those points of constitutional law upon which there was no difference of opinion, and that it was admitted on all hands, that the privilege of the writ could not be suspended, except by act of congress.
Also, though, it's worth considering that when FDR was elected in 1932, people were loudly questioning whether the idea of democracy itself had run its course, and there was lots of serious talk about the merits of statist (fascist and communist) systems. Many people were urging Roosevelt to go forward with the sort of power grabs that make the court-packing scheme look like a misuse of the franking privilege in comparison. So, I think we really got lucky in that Roosevelt wasn't interested in becoming a dictator, which he certainly could have become if he wanted, especially early in his first term.
Well, and this is the real point. Past presidents have grabbed for power, but they were shut down by the coordinate branches of government. But today, Congress and the SCOTUS are unable / unwilling to do likewise. (Same goes, if you care, for the fourth branch / estate.) What's the difference between then and now?
slol--Thanks for the paragraphs from Taney's opinion. Does anyone find old legal opinions (despite some arcane language) easier to read, more lively than most contemporary ones?
The current crop of Republicans disgust me. I know one guy who considers himself a Republican--though his father was a Democrat who worked on nuclear issues.
This particular guy is a lawyer with experience negotiating environmental treaties. He lives in DC and is registered as a Reoublican. He always votes for Democrats and considers the current crop of republicans proto-fascist, and yet, he won't change his registration.
Nobody knows why there's nobody imporfant with spine? Is money more important in politics today. Is there a thoroughly classist interpretation here? The real rabble rousers drew their support from the working class and didn't cave to corporate interests? Other politicians had enough in the way of independent means that they could walk away if they needed to? Am I just being hopelessly romantic?
If Bush produces anything with the kind of lasting value of the New Deal to go along with his similarly-bad power-grabs, I will be utterly fucking stunned. Because Bush doesn't want good things for America.
Boy, Roosevelt enjoyed supermajorities in both the House and Senate and yet he couldn't get away with a power-grabbing scheme which was plainly more constitutional than the 'nuclear option'? Maybe democracy really did run its course and nobody noticed.
But, the Executive branch is top-down. It's one person with a huge staff, including the NSA, FBI, DOD, CIA, etc. Still it is one person.
The Judicial and Legislative are bottom-up. Judges slowly climb the pyramid of judicial ranks. Legislators are elected by their constituents. A few bad apples in either doesn't really ruin the whole barrel. There are internal checks on judicial and congressional rogues.
But in the Executive, a few bad apples close to the top, or even at the top, spoils the whole.
But whoever is president, that person must always be bold in asserting presidential power, the president is the sole holder of presidential power and therefore its only real advocate.
That isn't to say that presidential powergrabs are in all cases excusable, just that I think it is easy to overstate presidential powergrabs, simply because it is the assertion of power by just the one guy.
Although I'd point out that the problem with the Bush administration isn't just a one guy problem--it's arguably a conflation of the one guy with a clear partisan goal of consolidating power. A lot of Republicans have been quite outspoken in their desire to establish Republican dominance over all three branches for many, many years to come, and are legislating accordingly.
Which, I'd argue, is the difference between Bush and the FDR example.
Boy, Roosevelt enjoyed supermajorities in both the House and Senate and yet he couldn't get away with a power-grabbing scheme which was plainly more constitutional than the 'nuclear option'? Maybe democracy really did run its course and nobody noticed.
It's been years since I read in-depth about FDR, but my understanding is that the Democratic majority in the Senate of the '30s was an uneasy alliance of northerners (aka "limousine liberals") and old-style southerners (don't know how to shorthand them -- quasi-populists? Anti-federalists?).
This was the explanation I remember for why FDR couldn't get anti-lynching legislation passed. (Yes, anti-lynching.) Based on this read, it's a miracle FDR managed to pass as much of his agenda as he did, given the constant tug-of-war within his own party.
Baa-style soundbite: Less party discipline back then!
FDR's project was far more totalitarian than anything we've seen out of Bush, in the strict sense of the word. But somehow, it's substantially less evil. The world is a complicated place.
I'm not sure FDR's motives, goodness, or good results are really relevant. Any powers that he established would have been available to his successors. People make the point often enough: it doesn't matter if you want this president to have a free hand, you have to think about whether you want a president you think is bad to have the same.
To be honest, the court-packing scheme doesn't seem wholly indefensibe to me. Hard to endorse in its particulars, but trying to make the US system of government less undemocratic - in a lawful manner - seems like a good idea, and they were thwarting popular will, and stopping vital legislation.
Saying it's worse thanwhat Bush's been doing sounds crazy to me.
It might be noted that FDR was dealing first with the Depression, and later with Hitler. Bush came into office during a period of unparalleled prosperity, and despite the shock of 9/11, there's absolutely no way that the threat of radical Islam compares to the threat of Hitler (much less Hitler plus Stalin).
"On the one hand, a little perspective is nice, on the other hand, it's not clear to me that if we don't treat each overreach as a portent of the fall of the Republic, that's not precisely what it will be."
That's quite a sentence, btw. I don't think you said what I think you meant to say, but even after rereading it a bunch of times, I'm not sure.
I'm not sure FDR's motives, goodness, or good results are really relevant. Any powers that he established would have been available to his successors.
Bingo. This is a point to remember when the topic is executive power broadly. It is easy to dismiss current GOP support of (e.g.) executive privilege and opposition to Independent prosecutor act, as mere partisan positioning. That's not, I think, a useful way to engage with what is actually an important debate about the type of authority the executive deserves.
As to the question ogged started with: does the history of FDR's courtpacking suggest current concerns about Bush's imperial presidency are overstated? While I think these concerns are vastly overstated, I find myself doubting the utility of the comparison. FDR's attempted courtpacking is probably an all time nadir of presidential respect for the rule of law. So it's hard to generalize from that case to anything.
Also, I am loving the "courtpacking: an idea whose time has come!" undercurrent here. Was the WPA such a good idea that we're willing to sell out separation of powers for anyone who offers it?
all time nadir of presidential respect for the rule of law
There's more than a whiff of cobblers', there.
The size of the Court is a perfectly legitimate object of Congress's attention. Congress has given the Court its attention in this matter previously. In fact, it has done so with the evident intent of affecting policy outcomes.
Resizing the Court is both constitutional and lawful. But it's certainly bad sportsmanship.
Well, but maybe the question at this late date is not, wouldn't you rather a republic than an empire? but rather, what kind of empire would you prefer?
I'm not completely sure why the Bush dam broke on this particular issue rather than on some earlier issue -- it doesn't change my mind at all, though this does not mean at all that I think that the issue is being exaggerated.
But I'll take what I can get. I don't especially enjoy standing shoulder-to-shoulder with Bob Barr and "Barrons", but my side can't win on its own power.
There's a very large group which went crazy during the Clinton perjury, etc., which is being quiet as a mouse this time around, though. What a bunch of opportunistic creeps.
There are those who call on imperialism to help us; but, supposing this heroic cure to be possible, we should rue the day that brought us to it. Our emperor would be nothing but a demagogue on a throne, forced to conciliate the masses by giving efficacy to their worst desires.
Mr. Parkman, sir, begging your pardon: I'm not saying I like it, but I think that train has sailed. Is there a known, or even speculative, recipe for restoring a republic?
More seriously, there was a very good article in Raritan (yeah, I know, kind of an obscure journal) a few years ago on American empire. (Sorry to be vague about it, but I'm not entirely comfortable recommending something by someone I took classes with in a googleable form.)
#30: In an abstract sense, the possibility of extending whatever powers or precedents are established matters. But in a practical sense, one obvious argument that FDR was less evil than Bush is precisely that FDR's attempts to consolidate power *didn't work*, while the Bush administration's attempts seem to be working all too well. Which is why issues like the support or lack of support from the president's party matters--will they check the power grab, or perpetuate it?
Part of that, too, is that it's really "the Bush administration," not Bush himself. I actually think more and more that he himself is pretty sincere and should be taken at face value, and that the real problem is that he's the front for a theory of government and power that would be completely unpalatable without his "decent guy" demeanor.
FDR used the means established by the Constitution to attempt to change the number of seats on the Supreme Court, the more right-wing members of which were shooting down legislation that Congress had passed and he had signed. The Constitution does not decree the number of seats on the Supreme Court, and between 1863 and 1869 the number of justices had fluctuated between ten and eight. Limiting the Court's power in this manner was probably a bad idea (particularly in the long term) and Congress properly shot it down. But Roosevelt did not violate the Constitution or laws of the United States, nor claim that his status as President/Commander-in-Chief gave him the power to do so.
What Bush has done is far worse. He has flagrantly and repeatedly violated the Foreign Intelligence Surveillance Act, continues to do so, and claims that as Commander-in-Chief he need not follow that law. Similarly, his administration has flagrantly and repeatedly violated the Geneva Conventions (treaties that, having been ratified by the Senate and signed into law by the President, are the "the supreme Law of the Land" (Art. VI of the Constitution)). John Yoo and others have written memoranda, upon which the Bush administration apparently relies, arguing that, as Commander-in-Chief, Bush need not follow the Geneva Conventions or any laws passed by Congress that interfere with the President's (hitherto unknown) inherent right to torture people.
In short, FDR used the mechanisms provided by the Constitution to try to change the law: he submitted his Court-packing proposal to Congress, which rejected it. Bush's claim that he is simply above the law and unanswerable to Congress (and to the FISA court, which is supposed to review applications for warrants to obtain foreign intelligence) is a much more radical and dangerous notion, and one completely alien to the Constitution.
he himself is pretty sincere and should be taken at face value
That's not the way I see it at all. Bush is sincerely vacant, but I can't make out any bedrock principles or coherent philosophy of governance, besides getting elected for the sake of getting elected (and providing tax breaks to the top end of the investing class - that seems sincere). Hence, I can't take anything he says at face value, because I can't escape the feeling that he's just reading the script they handed him. Even his religiosity seems forced and for public consumption only.
In Bush I see a cocky frat boy who thinks that (with a little help from his friends) he can scam anything. He quit drinking and drugs, if he did, because they were queering the scam. Jesus for him is just the highest-level fixer -- a lot of revival / rehab Christians are like that.
This is not intended as hyperbole. I mean it literally. I may be wrong, but I'm not kidding.
A few comments while I'm hopping through cyberspace,rather than reading something professionally w
worthwhile.(which,God knows I should be doing).First,re'FDR.He certainly had supermajorities,but had come to consult congress less and less.This was coupled with a genuine feeling SCOTUS should be above politics.The story
is told after hearing of FDR's plan ,House Judiciary Chairmantold VP Garner-neither had been aware of it-"Boys,here's where i cash in my chips."From Caro,Lyndon Johnson-the Path to Power.I don't recall the exact page,but it's approx pp 550.
Now ,specific comments.And I'm trying not to sound patronizing.
Michael:Advise and Consent was a fictional work set in the 1950's.The gist was whether a se. of state nominee was sufficciently anti communist.FDR waas president in 1932-1945.I'm not conversant with the grounds for overturning NRA,etc.,but you don't seem to be either.
Ms. kate,You may not know what symbolic(Boolean)logic is,but you've written something content free.It's as if you're a mathematical anti prodigy.
Neil;the constitution has nothing at all to do with the nuclear
option.It's Senate rules,which can be changed by the will of the Senate.That you would use the term "constitution" inreferenc to this makes me suspect you've not paid attention to it.
baa:Good point re' FDR.(He's my favorite president).But,Andrew Jackson,in disagreeing with a judgement stated,"John Marshall made this judgement.Now,let him enforce it",with the implication being
he had no army or police force.
apostrophe/John Emerson,a comment to remember.From Michael Crichton's
"Timeline":-"I don't know Ms. Someone's motivations are very hard to know.Since I'm not a theist,I won't comment on the worth of Chritianity.But comments like"forced religiosity' and suggesting he may not have quit drinking/drugs give a perception of a cognitive dissonance so great that nothing he does can be admirable.That becomes ridiculous.
Frederick,a cousin and a brother teach con law.They both believe Bush had the authority to do the intercepts.Cass Sunstein,who is far more prominent than either of them and is certainly liberal concurs.Check out UCLA's LAWBLOG for his reasoning.I'm unaware of opinions staating he can disregard Geneva Convention Accords-which is a treaty Congress entered.That would be an impeachable offence.Could you source it for me?
Bitch,Ph.D.Political parties try to consolidate power.But,qui custodiet ipso custidies,? It's not easy being me.
Yeah, that was terrible.
Posted by Joe Drymala | Link to this comment | 12-28-05 9:42 AM
What's interesting is, hardly anyone said "boo" when the Congress packed the court (adding two justices) in the early 1870s. Not even when the court reversed an immediately prior holding, on the basis that -- and this is only slightly a paraphrase -- "the law is different because the court is bigger now".
Posted by slolernr | Link to this comment | 12-28-05 9:43 AM
Wait, did FDR actually pack the court? Cause if I get to complain about the stuff Bush _wants_ to do along with what he's done that's a different ballgame.
Anyway, bad FDR. Bad Lincoln, suspending habeas corpus. Do that kind of stuff left and right and you're going to get lumped in with Worst Preznit Ever. Especially if you try it absent dire circumstances.
Also want to note the last 70 years (a third or so of the life of the nation) has provided a lot of precedents - both good and bad - for Presidents in these matters. Bush should be expected to have profited from that history. I sure hope his successors will profit from the history of this period.
Posted by rilkefan | Link to this comment | 12-28-05 9:51 AM
I only read a bit of it, but isn't this the theme of Agamben's State of Exception? The argument is basically that even mild-seeming democratic governments try to expand powers by declaring emergencies--much more frequently than is generally acknowledged--and it takes a great deal of caution and work to rein them in again after the emergency is over. All democratic governments constantly struggle with this temptation, since emergencies often crop up; a sense of crisis is easy to come by and lends a sense of legitimacy to those handling it.
Posted by ac | Link to this comment | 12-28-05 9:56 AM
Also interesting that it was a Congress overwhelmingly of his own party that stopped FDR from doing it. The Senate was 76-16 Dem-Rep and the House was 334-88.
Posted by slolernr | Link to this comment | 12-28-05 9:58 AM
I am sympathetic with the point in the second part of your post, but I have read (I haven't clicked the link yet) that the justices were being real punks in FDRs day; ruling against his New Deal programs on flimsy pretexts because they disagreed with him politically. (I think this might have been in the Advice and Consent book.)
FDR got a lot of flack for it, even though his programs were keeping people from starving. Bush is getting some flack now, but I think the outcome of his spying is still up in the air. If it turns out that Bush was breaking the law but his actions weren't bad other than that, then I think he'll probably come out fine in public opinion.
Posted by Michael | Link to this comment | 12-28-05 10:02 AM
There is no question that FDR was the most "imperial" of all our imperial presidents. He would probably still be president if he hadn't died in office.
Posted by Urple | Link to this comment | 12-28-05 10:05 AM
Yeah, I'm upset with Lincoln for suspending habeas corpus. Can anyone tell me the precise details? Did Congress authorize it? That was a little bit different, since there was a real war.
I never loved FDR back when I was a conservative, but I did always disapprove of his court-packing plan. The point is that he was stopped. It isn't safe to trust any one person or administration with everything. That's why we're supposed to have checks and balances.
Posted by bostoniangirl | Link to this comment | 12-28-05 10:08 AM
Unfortunately for us, there is one big difference. While FDR was imperial and tyrannical, he was at least benevolent in intention AND was keeping larger fasciest forces at bay.
The Bush League, by contrast, is far more interested in "power over" than "power for". They are less intent on changing certain aspects as they are of completely dismantling the fundamental underpinnings of modern government. In other words, they like what they see in the Banana Republics, and want to make our country like it. A far cry from the New Deal.
Posted by ms kate | Link to this comment | 12-28-05 10:09 AM
the justices were being real punks in FDRs day; ruling against his New Deal programs on flimsy pretexts because they disagreed with him politically
Speaking as someone who owns (and regularly wears) this t-shirt, I think that what Roosevelt was doing with the New Deal programs was, in fact, radical. I think those justices had the wrong idea of what America should be, but their idea was a very mainstream and legitimate one. In fact, it was the overwhelming consensus, in the 1920s. In other words, I think they had legitimate grounds to oppose FDR's nationalization of so many different things at once.
Posted by Joe Drymala | Link to this comment | 12-28-05 10:12 AM
The Sup. Ct. may have been acting like punks in FDR's first term, but then, they may not. Some of the major New Deal programs they struck down -- the NRA, the AAA -- were dubious propositions, constituting government-sponsored cartels, and not at all what we think of when we think of the New Deal now. Even in the pre-court-packing period, they let the TVA stand. Whether they would have let Social Security stand without the court-packing threat, I guess we don't know; the opinion on that came only a little while after the court-packing speech.
Posted by slolernr | Link to this comment | 12-28-05 10:13 AM
I am banned from using the phrase "in fact".
Posted by Joe Drymala | Link to this comment | 12-28-05 10:15 AM
Can anyone tell me the precise details? Did Congress authorize it?
According to a fairly cranky Justice Taney, these were the relevant details:
Posted by slolernr | Link to this comment | 12-28-05 10:24 AM
Yeah, all governments will try to consolidate power. That's why the constitution matters, contrary to what we keep being told nowadays.
Posted by bitchphd | Link to this comment | 12-28-05 10:25 AM
Also, though, it's worth considering that when FDR was elected in 1932, people were loudly questioning whether the idea of democracy itself had run its course, and there was lots of serious talk about the merits of statist (fascist and communist) systems. Many people were urging Roosevelt to go forward with the sort of power grabs that make the court-packing scheme look like a misuse of the franking privilege in comparison. So, I think we really got lucky in that Roosevelt wasn't interested in becoming a dictator, which he certainly could have become if he wanted, especially early in his first term.
Posted by Joe Drymala | Link to this comment | 12-28-05 10:27 AM
Oh, and FDR also authorized secret, almost certainly illegal wiretapping.
Posted by slolernr | Link to this comment | 12-28-05 10:40 AM
I for one agree that the National Rifle Association and the American Automobile Associationdeserved to be struck down.
Based on the precedent, Republicans should oppose Bush the way Democrats opposed Roosevelt. (Slolernr nailed it).
Not happening. Won't happen.
Posted by John Emerson | Link to this comment | 12-28-05 10:43 AM
Not happening. Won't happen.
Well, and this is the real point. Past presidents have grabbed for power, but they were shut down by the coordinate branches of government. But today, Congress and the SCOTUS are unable / unwilling to do likewise. (Same goes, if you care, for the fourth branch / estate.) What's the difference between then and now?
Posted by slolernr | Link to this comment | 12-28-05 11:09 AM
slol--Thanks for the paragraphs from Taney's opinion. Does anyone find old legal opinions (despite some arcane language) easier to read, more lively than most contemporary ones?
The current crop of Republicans disgust me. I know one guy who considers himself a Republican--though his father was a Democrat who worked on nuclear issues.
This particular guy is a lawyer with experience negotiating environmental treaties. He lives in DC and is registered as a Reoublican. He always votes for Democrats and considers the current crop of republicans proto-fascist, and yet, he won't change his registration.
Nobody knows why there's nobody imporfant with spine? Is money more important in politics today. Is there a thoroughly classist interpretation here? The real rabble rousers drew their support from the working class and didn't cave to corporate interests? Other politicians had enough in the way of independent means that they could walk away if they needed to? Am I just being hopelessly romantic?
Posted by bostoniangirl | Link to this comment | 12-28-05 11:19 AM
FDR's Court-packing attempt? Certainly bad.
If Bush produces anything with the kind of lasting value of the New Deal to go along with his similarly-bad power-grabs, I will be utterly fucking stunned. Because Bush doesn't want good things for America.
Posted by dj moonbat | Link to this comment | 12-28-05 11:41 AM
Boy, Roosevelt enjoyed supermajorities in both the House and Senate and yet he couldn't get away with a power-grabbing scheme which was plainly more constitutional than the 'nuclear option'? Maybe democracy really did run its course and nobody noticed.
Posted by neil | Link to this comment | 12-28-05 11:55 AM
Nobody knows why there's nobody important with spine?
Whited sepulchres? Generation of vipers?
Posted by slolernr | Link to this comment | 12-28-05 12:02 PM
Caleb recently had a post on Lincoln and habeas corpus, if anyone's interested.
Posted by eb | Link to this comment | 12-28-05 12:32 PM
But, the Executive branch is top-down. It's one person with a huge staff, including the NSA, FBI, DOD, CIA, etc. Still it is one person.
The Judicial and Legislative are bottom-up. Judges slowly climb the pyramid of judicial ranks. Legislators are elected by their constituents. A few bad apples in either doesn't really ruin the whole barrel. There are internal checks on judicial and congressional rogues.
But in the Executive, a few bad apples close to the top, or even at the top, spoils the whole.
But whoever is president, that person must always be bold in asserting presidential power, the president is the sole holder of presidential power and therefore its only real advocate.
That isn't to say that presidential powergrabs are in all cases excusable, just that I think it is easy to overstate presidential powergrabs, simply because it is the assertion of power by just the one guy.
Posted by Mr. B | Link to this comment | 12-28-05 12:41 PM
Although I'd point out that the problem with the Bush administration isn't just a one guy problem--it's arguably a conflation of the one guy with a clear partisan goal of consolidating power. A lot of Republicans have been quite outspoken in their desire to establish Republican dominance over all three branches for many, many years to come, and are legislating accordingly.
Which, I'd argue, is the difference between Bush and the FDR example.
Posted by bitchphd | Link to this comment | 12-28-05 12:52 PM
Boy, Roosevelt enjoyed supermajorities in both the House and Senate and yet he couldn't get away with a power-grabbing scheme which was plainly more constitutional than the 'nuclear option'? Maybe democracy really did run its course and nobody noticed.
It's been years since I read in-depth about FDR, but my understanding is that the Democratic majority in the Senate of the '30s was an uneasy alliance of northerners (aka "limousine liberals") and old-style southerners (don't know how to shorthand them -- quasi-populists? Anti-federalists?).
This was the explanation I remember for why FDR couldn't get anti-lynching legislation passed. (Yes, anti-lynching.) Based on this read, it's a miracle FDR managed to pass as much of his agenda as he did, given the constant tug-of-war within his own party.
Baa-style soundbite: Less party discipline back then!
Posted by A.W. | Link to this comment | 12-28-05 1:23 PM
(don't know how to shorthand them -- quasi-populists? Anti-federalists?)
Go with the tried and true: "Dixiecrats"
Posted by Jeremy Osner | Link to this comment | 12-28-05 1:30 PM
FDR's project was far more totalitarian than anything we've seen out of Bush, in the strict sense of the word. But somehow, it's substantially less evil. The world is a complicated place.
Posted by Adam Kotsko | Link to this comment | 12-28-05 1:41 PM
Bush -- not incompetent, just on the other side.
Posted by Jeremy Osner | Link to this comment | 12-28-05 1:43 PM
I'm not sure FDR's motives, goodness, or good results are really relevant. Any powers that he established would have been available to his successors. People make the point often enough: it doesn't matter if you want this president to have a free hand, you have to think about whether you want a president you think is bad to have the same.
Posted by ogged | Link to this comment | 12-28-05 1:43 PM
"Neo-Confederates".
Posted by John Emerson | Link to this comment | 12-28-05 1:50 PM
To be honest, the court-packing scheme doesn't seem wholly indefensibe to me. Hard to endorse in its particulars, but trying to make the US system of government less undemocratic - in a lawful manner - seems like a good idea, and they were thwarting popular will, and stopping vital legislation.
Saying it's worse thanwhat Bush's been doing sounds crazy to me.
Posted by David Weman | Link to this comment | 12-28-05 1:52 PM
It might be noted that FDR was dealing first with the Depression, and later with Hitler. Bush came into office during a period of unparalleled prosperity, and despite the shock of 9/11, there's absolutely no way that the threat of radical Islam compares to the threat of Hitler (much less Hitler plus Stalin).
Posted by John Emerson | Link to this comment | 12-28-05 1:53 PM
"(don't know how to shorthand them -- quasi-populists? Anti-federalists?)"
Racist fucking crackers.
Posted by David Weman | Link to this comment | 12-28-05 1:54 PM
Look, a man on horseback is the enemy of your freedom, whatever color his hat looks to you. If you like your liberty, you can't really want heroes.
Posted by slolernr | Link to this comment | 12-28-05 2:16 PM
I will hunt you down and kill you for this idiocy, ogged.
Posted by SomeCallMeTim | Link to this comment | 12-28-05 2:16 PM
"On the one hand, a little perspective is nice, on the other hand, it's not clear to me that if we don't treat each overreach as a portent of the fall of the Republic, that's not precisely what it will be."
That's quite a sentence, btw. I don't think you said what I think you meant to say, but even after rereading it a bunch of times, I'm not sure.
Posted by David Weman | Link to this comment | 12-28-05 2:16 PM
I'm not sure FDR's motives, goodness, or good results are really relevant. Any powers that he established would have been available to his successors.
Bingo. This is a point to remember when the topic is executive power broadly. It is easy to dismiss current GOP support of (e.g.) executive privilege and opposition to Independent prosecutor act, as mere partisan positioning. That's not, I think, a useful way to engage with what is actually an important debate about the type of authority the executive deserves.
As to the question ogged started with: does the history of FDR's courtpacking suggest current concerns about Bush's imperial presidency are overstated? While I think these concerns are vastly overstated, I find myself doubting the utility of the comparison. FDR's attempted courtpacking is probably an all time nadir of presidential respect for the rule of law. So it's hard to generalize from that case to anything.
Posted by baa | Link to this comment | 12-28-05 2:25 PM
Also, I am loving the "courtpacking: an idea whose time has come!" undercurrent here. Was the WPA such a good idea that we're willing to sell out separation of powers for anyone who offers it?
Posted by baa | Link to this comment | 12-28-05 2:33 PM
all time nadir of presidential respect for the rule of law
There's more than a whiff of cobblers', there.
The size of the Court is a perfectly legitimate object of Congress's attention. Congress has given the Court its attention in this matter previously. In fact, it has done so with the evident intent of affecting policy outcomes.
Resizing the Court is both constitutional and lawful. But it's certainly bad sportsmanship.
Posted by slolernr | Link to this comment | 12-28-05 2:38 PM
The republic began to go downhill the day they took the supreme court chambers out of the Senate building basement.
Posted by eb | Link to this comment | 12-28-05 3:06 PM
The republic began to go downhill
Republics are always going downhill, it's in their nature.
Posted by slolernr | Link to this comment | 12-28-05 3:11 PM
Oh, well that's a relief.
Posted by eb | Link to this comment | 12-28-05 3:24 PM
Well, but maybe the question at this late date is not, wouldn't you rather a republic than an empire? but rather, what kind of empire would you prefer?
Posted by slolernr | Link to this comment | 12-28-05 3:29 PM
I'm not completely sure why the Bush dam broke on this particular issue rather than on some earlier issue -- it doesn't change my mind at all, though this does not mean at all that I think that the issue is being exaggerated.
But I'll take what I can get. I don't especially enjoy standing shoulder-to-shoulder with Bob Barr and "Barrons", but my side can't win on its own power.
There's a very large group which went crazy during the Clinton perjury, etc., which is being quiet as a mouse this time around, though. What a bunch of opportunistic creeps.
Posted by John Emerson | Link to this comment | 12-28-05 3:35 PM
There are those who call on imperialism to help us; but, supposing this heroic cure to be possible, we should rue the day that brought us to it. Our emperor would be nothing but a demagogue on a throne, forced to conciliate the masses by giving efficacy to their worst desires.
Posted by Francis Parkman | Link to this comment | 12-28-05 3:39 PM
Mr. Parkman, sir, begging your pardon: I'm not saying I like it, but I think that train has sailed. Is there a known, or even speculative, recipe for restoring a republic?
Posted by slolernr | Link to this comment | 12-28-05 3:45 PM
"Was the WPA such a good idea that we're willing to sell out separation of powers for anyone who offers it?"
Separation of powers is a terrible idea. Your whole system of government is crap, actually.
Posted by David Weman | Link to this comment | 12-28-05 3:55 PM
The English Civil War was merely the establishment of separation of powers by other means.
Posted by eb | Link to this comment | 12-28-05 3:59 PM
More seriously, there was a very good article in Raritan (yeah, I know, kind of an obscure journal) a few years ago on American empire. (Sorry to be vague about it, but I'm not entirely comfortable recommending something by someone I took classes with in a googleable form.)
Posted by eb | Link to this comment | 12-28-05 4:18 PM
#30: In an abstract sense, the possibility of extending whatever powers or precedents are established matters. But in a practical sense, one obvious argument that FDR was less evil than Bush is precisely that FDR's attempts to consolidate power *didn't work*, while the Bush administration's attempts seem to be working all too well. Which is why issues like the support or lack of support from the president's party matters--will they check the power grab, or perpetuate it?
Part of that, too, is that it's really "the Bush administration," not Bush himself. I actually think more and more that he himself is pretty sincere and should be taken at face value, and that the real problem is that he's the front for a theory of government and power that would be completely unpalatable without his "decent guy" demeanor.
Posted by bitchphd | Link to this comment | 12-28-05 4:56 PM
If America was populated by Swedes, David, a Swedish form of government would work here.
Posted by John Emerson | Link to this comment | 12-28-05 5:46 PM
FDR used the means established by the Constitution to attempt to change the number of seats on the Supreme Court, the more right-wing members of which were shooting down legislation that Congress had passed and he had signed. The Constitution does not decree the number of seats on the Supreme Court, and between 1863 and 1869 the number of justices had fluctuated between ten and eight. Limiting the Court's power in this manner was probably a bad idea (particularly in the long term) and Congress properly shot it down. But Roosevelt did not violate the Constitution or laws of the United States, nor claim that his status as President/Commander-in-Chief gave him the power to do so.
What Bush has done is far worse. He has flagrantly and repeatedly violated the Foreign Intelligence Surveillance Act, continues to do so, and claims that as Commander-in-Chief he need not follow that law. Similarly, his administration has flagrantly and repeatedly violated the Geneva Conventions (treaties that, having been ratified by the Senate and signed into law by the President, are the "the supreme Law of the Land" (Art. VI of the Constitution)). John Yoo and others have written memoranda, upon which the Bush administration apparently relies, arguing that, as Commander-in-Chief, Bush need not follow the Geneva Conventions or any laws passed by Congress that interfere with the President's (hitherto unknown) inherent right to torture people.
In short, FDR used the mechanisms provided by the Constitution to try to change the law: he submitted his Court-packing proposal to Congress, which rejected it. Bush's claim that he is simply above the law and unanswerable to Congress (and to the FISA court, which is supposed to review applications for warrants to obtain foreign intelligence) is a much more radical and dangerous notion, and one completely alien to the Constitution.
Posted by Frederick | Link to this comment | 12-28-05 6:00 PM
Clearly FDR should have appointed secret justices to write redacted opinions enforced quietly in special cases.
Posted by eb | Link to this comment | 12-28-05 6:05 PM
he himself is pretty sincere and should be taken at face value
That's not the way I see it at all. Bush is sincerely vacant, but I can't make out any bedrock principles or coherent philosophy of governance, besides getting elected for the sake of getting elected (and providing tax breaks to the top end of the investing class - that seems sincere). Hence, I can't take anything he says at face value, because I can't escape the feeling that he's just reading the script they handed him. Even his religiosity seems forced and for public consumption only.
Carter? Sincere. Bush? Nope.
Posted by apostropher | Link to this comment | 12-28-05 6:21 PM
In Bush I see a cocky frat boy who thinks that (with a little help from his friends) he can scam anything. He quit drinking and drugs, if he did, because they were queering the scam. Jesus for him is just the highest-level fixer -- a lot of revival / rehab Christians are like that.
This is not intended as hyperbole. I mean it literally. I may be wrong, but I'm not kidding.
Posted by John Emerson | Link to this comment | 12-28-05 7:54 PM
When I see his smirky little cracker con man strut I realize that a LOT of Americans prefer that kind of guy, and I just about give up.
Posted by John Emerson | Link to this comment | 12-28-05 7:56 PM
A few comments while I'm hopping through cyberspace,rather than reading something professionally w
worthwhile.(which,God knows I should be doing).First,re'FDR.He certainly had supermajorities,but had come to consult congress less and less.This was coupled with a genuine feeling SCOTUS should be above politics.The story
is told after hearing of FDR's plan ,House Judiciary Chairmantold VP Garner-neither had been aware of it-"Boys,here's where i cash in my chips."From Caro,Lyndon Johnson-the Path to Power.I don't recall the exact page,but it's approx pp 550.
Now ,specific comments.And I'm trying not to sound patronizing.
Michael:Advise and Consent was a fictional work set in the 1950's.The gist was whether a se. of state nominee was sufficciently anti communist.FDR waas president in 1932-1945.I'm not conversant with the grounds for overturning NRA,etc.,but you don't seem to be either.
Ms. kate,You may not know what symbolic(Boolean)logic is,but you've written something content free.It's as if you're a mathematical anti prodigy.
Neil;the constitution has nothing at all to do with the nuclear
option.It's Senate rules,which can be changed by the will of the Senate.That you would use the term "constitution" inreferenc to this makes me suspect you've not paid attention to it.
baa:Good point re' FDR.(He's my favorite president).But,Andrew Jackson,in disagreeing with a judgement stated,"John Marshall made this judgement.Now,let him enforce it",with the implication being
he had no army or police force.
apostrophe/John Emerson,a comment to remember.From Michael Crichton's
"Timeline":-"I don't know Ms. Someone's motivations are very hard to know.Since I'm not a theist,I won't comment on the worth of Chritianity.But comments like"forced religiosity' and suggesting he may not have quit drinking/drugs give a perception of a cognitive dissonance so great that nothing he does can be admirable.That becomes ridiculous.
Frederick,a cousin and a brother teach con law.They both believe Bush had the authority to do the intercepts.Cass Sunstein,who is far more prominent than either of them and is certainly liberal concurs.Check out UCLA's LAWBLOG for his reasoning.I'm unaware of opinions staating he can disregard Geneva Convention Accords-which is a treaty Congress entered.That would be an impeachable offence.Could you source it for me?
Bitch,Ph.D.Political parties try to consolidate power.But,qui custodiet ipso custidies,? It's not easy being me.
Posted by vandervecken | Link to this comment | 12-29-05 9:32 PM