Cato the Blunder?

I've just completed the 22.5-page Power Surge: The Constitutional Record of George W. Bush (31-page PDF), authored by Gene Healy and Timothy Lynch of the libertarian CATO Institute.

The executive summary should be compelling to everyone, regardless of political orientation.

It begins:

In recent judicial confirmation battles, President Bush has repeatedly—and correctly—stressed fidelity to the Constitution as the key qualification for service as a judge. It is also the key qualification for service as the nation's chief executive. On January 20, 2005, for the second time, Mr. Bush took the presidential oath of office set out in the Constitution, swearing to "preserve, protect and defend the Constitution of the United States." With five years of the Bush administration behind us, we have more than enough evidence to make an assessment about the president's commitment to our fundamental legal charter Unfortunately, far from defending the Constitution, President Bush has repeatedly sought to strip out the limits the document places on federal power. In its official legal briefs and public actions, the Bush administration has advanced a view of federal power that is astonishingly broad, a view that includes

• a federal government empowered to regulate core political speech—and restrict it greatly when it counts the most: in the days before a federal election;
• a president who cannot be restrained, through validly enacted statutes, from pursuing any tactic he believes to be effective in the war on terror;
• a president who has the inherent constitutional authority to designate American citizens suspected of terrorist activity as "enemy combatants," strip them of any constitutional protection, and lock them up without charges for the duration of the war on terror— in other words, perhaps forever; and
• a federal government with the power to supervise virtually every aspect of American life, from kindergarten, to marriage, to the grave.

President Bush's constitutional vision is, in short, sharply at odds with the text, history, and structure of our Constitution, which authorizes a government of limited powers.

The CATO authors make the charge that a sitting president is violating his oath of office and the Constitution he has sworn to protect on multiple occasions, and these are charges not to be dismissed lightly. I had to read this document.

After reading it all and taking it in, I sit here with mixed emotions.

The authors make a strong case in each instance, and the way they frame the issues, there seems little practical doubt as to whether or not the President is guilty of some of the things that Healy and Lynch charge. But is little doubt the same as no doubt, and how do we judge?

Example #1 was the infamous McCain-Feingold bill (Bipartisan Campaign Reform Act, or BCRA).

Bush did sign McCain-Feingold into law after objecting to it on Constitutional grounds. It which seems to be a direct assault upon the most important core principle of the First Amendment, free political speech. But Healy and Lynch then make this comment on page 5 (as the page is numbered, may vary in your PDF viewer):

…when the president abdicates his constitutional responsibility, as President Bush did when he signed a bill he knew to be unconstitutional, there is no guarantee that the courts will act to uphold theirs.

In fact, the Supreme Court did not accept President Bush's invitation to strike down the offending portions of the BCRA. In 2003, in McConnell v. Federal Election Commission, the court upheld all the major provisions of the BCRA.

To me, this seems perplexing. If the President thinks a congressional bill is unconstitutional and signs it into law thinking it is unconstitutional, should he face impeachment when the Supreme Court upholds all the major provisions of the law?

If he should then be impeached, what of the members of Congress who voted to pass the bill in the first place? Do they not violate their oaths as well? And what do we do with a Supreme Court that upholds what many lay people consider a clear violation of the very essence of the First Amendment? Should we toss them all, executive, legislative, and judicial, and appoint President Antonin Scalia for filing a dissent that upheld the Constitution?

From McCain-Feingold, to "free speech" zones, the so-called "torture memos," and questions about apparently expanding powers to arrest and seize property, Healy and Lynch take aim at the President but find themselves hitting other targets with virtually every shot.

For example:

• The "free speech" zones are enforced by the Secret Service or local police at Secret Service behest, and the authors cannot even provide evidence that Bush ha any part in these decisions;
• the "torture memos" debate is carried forward upon opinions put forth by the Justice Department and the Department of Defense, as well as the White House;
• the "war powers" argument put forth by the authors would seem to implicate almost every president back to Truman (with the apparent exception of Bush 41) for using police actions instead of congressional declarations as their method to go to war, while at the same time noting the current President Bush seized upon Congressional use of force still in effect from the 1991 Persian Gulf war, and got a congressional use of force authorization of his own as well;
• The FBI and other federal law enforcement agencies are indicted along with the President under a charge of overly expanded arrest and seizure powers;
• an alleged expansion of surveillance powers would condemn the NSA as well (note: I think the authors are fundamentally wrong in their assertions made in this section, and they should admit this is blind speculation on their part based upon unsupportable assumptions, which they don't);
• and on and on…

It would appear at the end of the article that all branches of the federal government, and indeed most individual departments of these branches, must bear at least some responsibility for the current wretched state of affairs the authors state this nation is currently in, or may find itself in at some point in the future.

The often compelling—and occasionally self-defeating—arguments made by Healy and Lynch would seem to indicate an entire federal system that has become corrupted to the point that we as a nation should consider a wholesale scrapping of all three branches of government and start them afresh—OR—it suggest that the authors may over-reaching to support a hypothesis that may have been pre-determined, and in doing so, tarred everyone with the same brush.

I'll be very interested to see other impressions of this document.