
--Daniel Patrick Moynihan

January 6, 2012

Obama Toys With the Constitution

By David K. Shipler

President Obama has adopted one of George W. Bush’s most troubling tactics, roundly denounced by liberals when a conservative Republican used it, but now generally excused by liberals when employed by a Democrat in the White House. It is the “signing statement,” a litany of reservations and reinterpretations of a bill, issued by a president as he signs it into law.

Obama did this on the last day of 2011 to soften the immediate effect of the military detention powers he had just been awarded by Congress. He said he would “not authorize the indefinite military detention without trial of American citizens,” as the new law allows—but he signed a bill empowering any president to do so anyway. He rejected the statute’s requirement that foreign suspects be held by the military, saying he would use his option under the law to waive the mandate broadly, both for individuals and for “appropriate categories of cases.” Nevertheless, he signed a bill that would impose no such restraint on any president.

Those of us who value the ingenious mechanism of the Constitution have to acknowledge mixed feelings about Obama’s signing statement. On the one hand, it recognizes that indefinite detention without due process of Americans (and, I would add, non-Americans) “would break with our most important traditions and values as a Nation.” Most Republicans and many Democrats in Congress seem to need reminding that our civilian court system is a crown jewel of our constitutional democracy—imperfect, yes, but probably the most accurate method of getting to the truth of a person’s guilt or innocence. It does not deserve the derision inherent in this faddish preference for an untested system of military prisons and tribunals.

On the other hand, Obama did damage that may outlast him, even if he gets a second term. He granted the military system legitimacy and embraced the newfound presidential power to evade the judicial branch. He said he would choose between military and civilian venues for each terrorist prosecution, for the sake of a “flexible approach,” and “to remain relentlessly practical.” The words “practical” and “flexible” do not appear in the Constitution, and for good reason. There is much about the protections of individual rights that is neither practical nor flexible, but rather demanding, cumbersome, and inefficient. The framers thought that the price of inconvenience was worth paying for liberty.

In addition, the presidential habit of deciding which of a new law’s provisions he will observe can only promote a measure of lawlessness. One section of the 2012 National Defense Authorization Act, for example, prohibits the transfer of any prisoner from Guantanamo to the U.S., or to any other country where a previous transferee has returned to terrorism. As wrong-headed as these provisions are, Obama cannot just wish them out of the statute, as he does by stating that they “violate constitutional separation of powers principles” and that “my Administration will interpret them to avoid the constitutional conflict.”

He thereby opens the door to the large question of which branch of government interprets the Constitution. This is essentially the same question raised by Newt Gingrich when he argues that a president can ignore supposedly unconstitutional rulings by the courts.

Gingrich cites Abraham Lincoln’s opposition to the Dred Scott decision, and while the candidate-historian gets some details wrong, according to FactCheck.org, he accurately reflects Lincoln’s discomfort with the concept of Supreme Court precedent extending beyond the specific case at hand. Lincoln declared that while the Court’s opinions deserve “very high respect and consideration” when applied to like cases that follow, “at the same time the candid citizen must confess that if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased, to be their own rulers, having, to that extent, practically resigned their government, into the hands of that eminent tribunal.”

This was not a novel argument, although it came decades after the Supreme Court, in Marbury v. Madison, had invested the courts with the power to strike down laws judged to be in violation of the Constitution. This authority of judicial review is not explicitly present in the Constitution, is far from universal in open societies, and was slow to be accepted in the United States. Bryon Andreasen, research historian at the Lincoln President Library, wrote this to FactCheck:

“Lincoln leaves open the door to the view that each branch of government has a similar power and duty to decide constitutionality—a view that was more prevalent in the 18th & 19th centuries than it is today.”

Indeed, the view was firmly held by Thomas Jefferson, who wrote that “each of the three departments has equally the right to decide for itself what is its duty under the Constitution, without any regard to what the others may have decided for themselves.” It’s not hard to imagine the consequences of such a dictum. Let us hope that the Supreme Court will eventually strike down as unconstitutional the military detention provisions just signed into law.

Jefferson was not at the Constitutional Convention. If he had been, he might have heard James Madison wisely observe, “All men having power ought to be distrusted to a certain degree.” The words should be carved into the Oval Office, chiseled into the Capitol Rotunda, and hung prominently before the Justices of the Supreme Court.

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