Yale law professor Bruce Ackerman's opinion piece in the Los Angeles Times, "Bush Isn't the Only Decider," is perhaps another of those documents that historians will look at 100 years from now and ask: He got it, others got it -- in fact, everyone seemed to get it -- so why didn't anyone do anything about it?
The "it," as the op-ed's title suggests, concerns the unfettered growth of presidential power. And Ackerman's example -- the deep cause of concern du jour -- is merely the latest: the recently signed Bush-Maliki declaration that guarantees economic and political aid as well as American "security assurances and commitments to the Republic of Iraq to deter foreign aggression."
There's a word for this sort of "agreement," which the White House says should be in final form by mid-summer -- a treaty. You may recall from your outdated high school civics text that the Senate once routinely engaged in the approval or rejection of such a thing; plus a quick check of the U.S. Constitution -- no doubt also referenced somewhere in your text -- will avail formal provisions for such legislative meddlesomeness.
But, in George Bush's carefree world of monarchic pragmatism, all that fuss of Senatorial approval and advice and consent is just so much needless bureaucracy. Hence, as Professor Ackerman notes, "his White House 'czar' on Iraq, Army Lt. Gen. Douglas Lute," has "made a remarkable suggestion: Only the Iraqi parliament, not the U.S. Congress, needs to formally approve the agreement." Tough call indeed for the Iraqis: something -- quite a bit, actually -- for nothing.
Yet, as constitutional-fussbudget Ackerman further notes, Lute's "suggestion does not even pass the laugh test." While "American presidents do have unilateral authority to make foreign agreements on minor matters..., the Constitution requires congressional approval before the nation can commit itself to the sweeping political, economic and military relationship contemplated by the 'declaration of principles' signed by Bush and Maliki."
He goes on to remind us "there is no constitutional provision or precedent authorizing this new form of Bush unilateralism," and then flatly states that in the absence of "congressional consent, the constitutional separation of powers is at an end."
Some would say that is less a futuristic condition than a fait accompli. I'm not quite as pessimistic -- yet -- since Congress still has a year to grow some cojones. There's always hope, even if hope, at this late stage, is all we have. But Ackerman's observations did put me in mind of a recent television interview with journalist Michael Oreskes, executive editor of the International Herald Tribune and co-author of The Genius of America: How the Constitution Saved Our Country, and Why It Can Again.
In the interview, Oreskes pointed out what should be commonplace knowledge, but has instead transmogrified into a rather profound observation these days.
When asked if the Founders would not be disheartened if not crestfallen over George Bush's executive power-grabs, Oreskes said, bluntly, "No." They wouldn't be surprised one bit. In fact, they would see them as the natural order of things -- they knew their ancient history of democratic failures, they had just defeated one power-happy "executive," and they understood that these peculiar creatures of executive office naturally wish to inflate their authority at every turn.
And that, dear friend, is exactly why they wrote the Constitution as they did. They anticipated -- and this is my characterization; not, heaven forbid, Mr. Oreskes' -- that representative democracy would, in time, produce morons and demagogues precisely of George W. Bush's disposition. Civic virtue and classical republicanism would not hold. Therefore they threw up barriers -- all manner of checks and balances -- to restrain the constitutional executive who, over time, would naturally yearn to corrupt his proper role and limitlessly expand his powers.
The trick, of course, is for Congress to push back. What George is doing was expected by the Founders. What they would find surprising, however -- what, in fact, would dishearten and leave the Founders crestfallen -- is that Congress has shown so little determination to exercise and reassert its own constitutional authority.
The Bush-Maliki declaration and its attendant implications merely present one more opportunity for Congress to do so. If it shirks its duty, again, then it's just one more, and perhaps final, step to one-person rule -- or, as Professor Ackerman warned without my hesitation of "perhaps," "the constitutional separation of powers" will be "at an end."