Neoconservatism as a Fake Ideology, Part 2
RICK KLEIN, BOSTON GLOBE - Earlier this year, Supreme Court nominee Harriet E. Miers used several speeches to push for expanding President Bush's powers to protect the United States against terrorism, arguing that "a nation at war" needs a stronger executive branch, according to transcripts the White House has provided to the Senate Judiciary Committee.
In her speeches to conservative groups, Miers called for extension of the Patriot Act, which expands law enforcement agencies' power to investigate suspected terrorists. She defended Vice President Dick Cheney's closed-door energy task force as the best way for the administration to use confidential deliberations to set national policy. And she said her role as White House counsel was generally to "protect against any attempted infringement on the appropriate role of the executive branch."
"In order to effectively serve the American people, the president's powers must be protected," Miers said in June, in a speech given to the conservative Heritage Foundation. "We must recognize that we are a nation at war, and that requires a strong presidency to act as commander-in-chief.". . .
These so-called "strict constructionists" should be aware that the Article II delegation of power to the Executive has an "original understanding" paper trail almost as extensive as that of the legislative delegation in Article I, Section 8. I've done a fair amount of reading on the subject, although I'm too damned lazy to go back through Thorpe's Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies, Madison's Notes, and Elliot's Debates to dig out the exact citations (it's a project in the hopper, though).
Hamilton, that prototype of neocon sliminess, argued as Pacificus that Article II (unlike Article I) was a plenary grant of all executive powers involved in the royal prerogative, minus only those expressly forbidden. But as one defender of Article II's language pointed out in the Federal Convention, there is no general residue of executive power that is not expressly accounted for in some part of the Constitution. All the separate components of the royal prerogative were listed by Blackstone in volume 1 of his Commentaries. And every single one of those components in the Constitution is expressly granted to the President, expressly denied to him, or expressly granted or denied to some other branch of government. There is no residuum of executive power, not thus accounted for, on which to hang a general "national security prerogative."
The language of Article II, likewise, carried clear implications on the extent of Presidential power. The term "president" itself, for example. Three state constitutions, in the 1780s, referred to their executive as a president. In every one of those states, the chief executive was the first among equals, or presiding officer, in a plural executive (hence the Latin participle "president"), sometimes taking the form of a privy council whose "advice and consent" was required for the exercise of a wide range of executive powers. The "advice and consent" requirement was not a mere rubber stamp. It required the nominal chief executive, in effect, to function as a component part of a plural executive: "the governor-in-privy council." Something of this is preserved in the federal executive's direct involvement, in the person of his Vice President, in presiding over the Senate. The clear effect of the Constitution's original language, given the contemporary understanding of its terms of art, was to create the President as presiding officer of a plural executive ("President-in-Senate") in the exercise of all powers for which "advice and consent" were required.
harriet miers , constitution , judicial activism ,