The Social Construction of Power in the Constitution

[This is an unfinished paper - please leave comments]

One of George W. Bush's greatest affronts to the Constitution of the United States was his consistent use of so-called "signing statements". In these documents, attached to laws passed by Congress, Bush indicated his interpretation of the law and how or whether he intended to honor it. While not the first president to issue such statements, the content of his statements were certainly the most radical. Coupled with this was an insistence on an expansive notion of executive privilege - not found in the constitution by other scholars - that claimed that advisers to the president were exempt from being called to account by the legislative or judicial branches of government. Another similarly bizzare claim was Vice-President Cheney's assertion (repeated by Press Secretary Dana Perino and other officials, justified by a few conservative pundits but universally dismissed within the legal profession) that the Office of the Vice President simultaneously occupied and did not occupy both the executive and legislative branches of government. Under this pretense, his office could exercise executive privilege but could not be restrained by rules regarding the conduct of the executive branch.

While perhaps new in degree, such executive intractability is not entirely unique. Presidents Clinton and Nixon, to name but two, also battled other branches of government in regards the extent of the executive's accountability to others. What makes the Bush administration's tenure different was the response by the other branches. While it would be an overstatement to claim that the other branches simply gave in to the administration, their failure to take more decisive action allowed most of the Bush administration's power grabs to go unchallenged. Though constitutionally the powers of each branch are defined, I argue that these powers are only meaningful insofar as they are utilized. Thus, rather than the Constitution being a power broker/bestower in the sense that a contract law theorist or institutionalist might argue, constitutionally granted power is socially constructed - it is what each branch makes (or fails to make) of it.

One might argue that the earliest example of such a construction is Chief Justice Marshall's famous definition in Marbury v. Madison of the range of judicial power. Many thousands of pages have gone into analyzing this decision, so I will only provide a rough summary - sensitive to the power considerations that were at stake in the case, Marshall defined in his decision what was the role of the judicial branch. This is the origin of "judicial review", which is now an accepted role for the judiciary. However, this is far different from what the Bush administration engaged in. Unlike Articles I and II of the Constitution that clearly delineate the roles and powers of the executive and legislative branches, the Constitution called for the creation of a Supreme Court but did not specifically assign powers to it. Thus, Marshall filled what was essentially a power vacuum.

What the Bush administration has done is challenged other branches of government to exercise their powers to the fullest extent granted by the Constitution. Anytime a branch failed to do so, the executive branch won a de facto increase in its power. It is important to stress that this occured anytime another branch did not seek or threaten to exercise its powers to the fullest extent granted by the constitution. When leading Democrats (including the House Majority
Leader Nancy Pelosi) declared, in the wake of their giant gains in the 2006 election cycle, the impeachment was off the table, this was a victory for the Bush administration. While there were many practical concerns that could have prevented impeachment (the clear lack of a 2/3 majority to convict on articles of impeachment being only the most clear), the congress had essentially announced that whatever the crimes of the Bush administration over the previous 6 years had been, there would be little in the way of consequences. Were the constitution a power broker/granter in a contractual or institutional sense, the movement towards impeachment if crimes had been committed would have been a forgone conclusion. While there would be no guarantee of conviction on articles of impeachment (nor should there ever be such a guarantee), in light of evidence of wrongdoing they should have been brought.

The congress did, in fact, subpoena members of the administration on multiple occasions.
Often, as in the cases of Harriet Miers and Joshua Bolten, they simply refused to recognize the authority of congress and didn't show up, citing "executive privilege" as a deus ex machina to whisk them away. Monica Goodling showed up (after a promise of certain types of immunity) and was only minimally forthcoming. (MG: "I know I crossed the line." Conyers: "What line? The Law?"[...] MG:"I know I crossed the line." Conyers:"Rules, laws. What line?") Then there was the interesting case of D. Kyle Sampson. He showed up, only to tell the Congress that they had no authority to open such an investigation, admit what had been defined as wrongdoing, but insist that it was not in fact wrongdoing. Paging Col. North... In each of these cases, Congress' oversight and investigation powers were mocked, with either minimal cooperation or outright dismissal or mockery. Congress does have the authority to hold people in inherent comptempt - a worthwhile option when the Attorney General insists he won't honor a subpoena. But Congress did not exert its power to the fullest extent of the law.

Does this set a precedent? Will future executive branches be able to so cavalierly flaunt the Constitution? What exactly would be the "precedent" established? It would not be an absolute precedent, by which I mean the executive branch is not as a matter of law more powerful in day-to-day operation than it had previously been - hypothetically, a re-energized congress (a Republican congress?) could push to hold future presidents to account. Given the Bush administration's (remarkably successful) refusal to recognize the powers of Congress, it's not clear that future presidents will not try the same thing. At a minimum, it certainly points to a scenario in which the executive branch's power can increase almost exponentially: if a congress is unsure of its own popularity, hedging bets against its prospects in an upcoming election cycle, the congress will fail to act decisively against a criminal (or simply overly expansive) administration. Perhaps in this recent case the Democrats in Congress (after 2006) looked at two recent battles between the executive and legislative branches - the (rare) opposition to Iraq War and its electoral consequences in 2002, as well as the Republican push to impeach Clinton and their diminished success in the 1998 election cycle - and concluded that the executive branch usually wins (in terms of popular opinion) such showdowns. So does this mean that, henceforth, any
Congress in a similar situation is de facto powerless? Or does Congress' inaction have deeper consequences?