Constitutional Crisis?

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Thursday, April 12, 2007 | The history of the republic is a history of Congress and the president dueling for power, so let's not be too shocked that the current Congress is challenging an incompetent presidency. In this showdown over Iraq, we see the value of division of power, rather than having it exclusively in the hands of one party.

"Ambition must be made to counteract ambition," wrote Madison in the Federalist Papers (No. 51), which laid out the principle of separation of power. The clash of ambition would protect us from tyranny.

James O. Goldsborough

Last November's election was no accident. Voters couldn't get at George W. Bush so did the next best thing and turned Congress over to the Democrats -- including the Senate, which was considered a long shot. Had the outgoing Congress acted as the separate branch of government the constitution intended it to be, rather than the cat's paw of the presidency, voters might not have turned it out.

The Bush Administration launched an all-out assault on our separation of powers system. Congress and the president merged into one and through appointments and confirmations began to suck the courts into its web. Minorities were ignored, dissent was suppressed, the press surrendered and imperial government replaced our traditional system of checks and balances.

Controlling all levers of power, Bush was able to impose a radical program on the nation and, through such aberrations as the doctrine of "pre-emptive war," on the world. He achieved this sans mandate, for, as we know, he lost the popular vote in 2000. Had Bush been the president he promised -- a uniter not a divider -- his presidency would look very different today. But he listened to Vice President Dick Cheney, whose goal was to consolidate all power in the presidency, and now sits isolated in the White House, with only Cheney for company.

Even without the catastrophe of Iraq, as black a mark on this nation's integrity as anything it has ever done, Bush's presidency has been an exercise in presidential arrogance and incompetence that will burden us for years to come.

Acting as one (Bush vetoed no bills), Republican government in 2000-2006 cut taxes in a time of war, created the greatest income inequality since the Great Depression, increased national debt by a third by running deficits that eliminated any chance of addressing the coming Social Security imbalance, weakened the dollar, populated government with unqualified cronies and politicized federal agencies that traditionally have been apolitical, such as the Justice Department and EPA.

Bush rode rough-shod over states-rights, began to tailor the Supreme Court to his fashion, made torture and the Guantanamo prison symbols of American justice, withdrew from international treaties, trampled on human rights, substituted unilateralism for collective action in international affairs and isolated America in the world as thoroughly as Bush isolated himself in the White House.

The past six years has transformed America's historic reputation as a fair, benevolent and pragmatic nation into one driven by outmoded doctrine and blind ideology, brooking no dissent and accepting no advice. Under Bush we have gone from one of the most admired nations in the world to one of the least admired, an evolution which has eroded alliances, destroyed friendships and weakened our influence worldwide.

The new Congress chose the Iraq war, the most immediate of our problems, to launch its most direct challenge, but we should not take that to mean Bush won't be challenged on everything he tries over his final lame duck months -- taxes, spending, the environment, foreign policy, immigration and appointments, to name a few things certain to come up.

The most direct challenge, however, the one that has raised the issue of constitutional confrontation, comes over Iraq.

Congress is passing legislation tying Iraq war financing to a timetable for military withdrawal. Both Houses have passed bills, and it remains now to reconcile them. Bush promises a veto -- which would veto war financing along with the timetable -- allowing him to accuse the Democrats of undercutting the troops. If he does veto the bill, it is Bush, in search of political advantage, who will have undercut the troops.

If it comes to that, Bush would have failed the nation one more time. It is neither the intent of Congress nor the people who elected it to undercut the troops in the field. It is the intent both of Congress and the people who elected it to end this futile and tragic war, bring the troops home over the next year and let Iraqis get on with the business of national reconciliation and reconstruction. As we saw this week, even Iraq Shias, the sect we liberated from Saddam, are demanding our departure.

This is a political battle, not a constitutional one. The constitution divides the so-called war powers equally between Congress and the president. Congress has passed restrictions on presidential war-making powers back to the Adams Administration and as recently as the Vietnam War, the Iran-Contra affair and the intervention in Somalia.

As for foreign policy, the constitution is mostly silent and has left it up to the Supreme Court, in the few cases that have come up, to rule that the Constitution gives both branches their say in the making of foreign policy. Since the passage of the War Powers Act (over presidential veto) in 1973, presidents have implicitly recognized Congress' right to war power-sharing by declining to challenge the law in the courts.

Bush's war policies have been rejected by the nation. If November wasn't enough to make the point, the rapid fall in the polls of Sen. John McCain, once the odds-on favorite for the Republican presidential nomination, should confirm it. The president needs to reach an agreement with Congress that will finance the war and begin to end it.

James O. Goldsborough has written on foreign affairs for four decades, both from the United States and abroad, where he worked as a foreign correspondent for The New York Herald Tribune, International Herald Tribune and Newsweek magazine for 14 years, reporting from more than 40 countries. Visit his website here. Submit a letter to the editor here.