Published on Sunday, May 18, 2008 by CommonDreams.org
Refitting the Presidency to the Constitution
by David W. Orr
The 44th president will assume office with powers greatly enlarged by
his or her predecessor. Drawing on recent precedents, the next president
could launch preemptive wars with only minor interference from Congress,
ignore the ancient right of habeas corpus and imprison political
enemies, spy on American citizens without serious legal restraint, use
practically any federal agency for political purposes, manipulate the
press in ways inconceivable prior to 2000, corrupt the federal justice
system for political gain, destroy evidence in criminal cases, use the
Justice Department to prosecute members of the opposing party, offer
lucrative no-bid government contracts to friends, expand the creation of
private security armies, use torture, create secret prisons, assassinate
inconvenient foreign leaders, cir***vent laws with signing statements,
and a great deal more. Such things are now possible because the system
of checks and balances carefully written into the Constitution and
explained in great detail in the Federalist Papers were weakened as a
result of historical cir***stances of the 20th century, but
systematically and with great forethought by the administration of
George W. Bush.
Said to be necessary in order to protect the country from terrorism, the
expansion of presidential authority in truth was carried out by
neo-conservatives who in the smoke and ashes of 9-11 smelled
op****tunity. The result is James Madison’s worst nightmare: the
unification of once carefully separated powers of governance —
executive, judicial, legislative — in the hands of a single faction
along with substantial control over the press, radio, and television and
an extensive police and surveillance apparatus he would have loathed.
The surreptitious and perhaps fraudulent manner by which presidential
powers were recently expanded has greatly diminished trust and respect
for the office at home and abroad. But unless explicitly repudiated by
the next president and prohibited by law, the precedents of the Bush
presidency will stand. The expanded powers of one president typically
are carefully guarded by their successors. Republican or Democrat the
next president will be advised to distance the office from the more
controversial actions of George W. Bush, but only as a matter of
expediency, not for reasons inherent in the Constitution or the law. If
so, we will have crossed the line into executive tyranny.
Acquiescence in the unlawful enlargement of presidential power is
neither right nor necessary. The next president would be well advised to
sup****t the appointment of a special prosecutor to thoroughly
investigate the possible illegalities involved in the recent expansion
of presidential power not to exact political revenge, but as the first
step toward recalibrating the presidency to the Constitution. Second, he
or she should appoint a Blue Ribbon panel of experts in Constitutional
Law and the presidency to make recommendations to Congress about the
restoration of the office.
Many will disagree, saying that learning the truth would be
unnecessarily divisive and a waste of time in the face of more pressing
business. To the contrary, we the people, Republicans, Democrats, and
independents alike, will need to know the truth in order to reestablish
the rule of law in the highest levels of government and restore trust,
credibility, and respect for the office of the president now tarnished
by the systematic abuse of power and excessive secrecy. Otherwise, we
invite worse abuses of power in difficult times ahead.
A restored presidency is a prerequisite to successfully meet the
challenges of the emergencies posed by climate change, the end of cheap
oil, and the effort to build a sustainable global civilization. In
coming decades a great deal will be required of the American people. If
we are to respond with renewed patriotism and vigor we will need to know
that we are being told the truth and that we are being led by a
president who is both enabled and constrained by the law.
David W. Orr is the Paul Sears Distinguished Professor of Environmental
Studies and Politics, Oberlin College and James Marsh Professor at
Large, University of Vermont.
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