People who defend the President in cases like this need to be aware that 1) it's dangerous for the Executive to be empowered to skirt existing laws, and 2) It is the Juciary's job to decide what is or is not legal. Letting the Justice department decide whether or not to investigate its own actions allows the Executive branch be judge, jury, and executioner which leads to an abuse of power and the persecution of those who stand in the way, which is a lesson Mr. Tamm is learning first hand.
The Administration and the GOP like to harangue the public with calls for "The Rule of Law" but the case of Mr. Tamm shows that what they really mean is, "The Rule of Law (but only the ones we like)". How else can you explain Bush's proclivity for signing statements? Their stance on torture? Their willingness to hold Bosnian's when the Bosnian Supreme Court and head procecutor agree that there is no evidence against them?
Wednesday, December 17, 2008
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I don't argue with your assessment of the Bush Administration's stretch of the unitary executive theory into areas problematic with orthodox constitutional interpretation, but Akhil Amar makes some interesting observations regarding the expectations of the Founders in who would interpret the Constitution. For the Founders, the Court was not the final arbiter on what the Constitution says, and indeed, the Court was expected to play a backseat role to what Congress and the president said the Constitution said.
That is not to say that the Founders thought the President could choose to ignore laws that he didn't like. After all, he is charged by the Constitution to "faithfully execute" the laws of the United States. But that is to say that the Court is not the only adjudicator of constitutional meaning.
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