A President, not a king


I was not originally planning to post on the big news story of the day, the Supreme Court decision in the case of Hamdan v. Rumsfeld, but I think a lot of the coverage I've seen as ignored some of the most significant ramifications.  Whatever happens with Guantanamo and military tribunals is not what is important. Rather, what this decision has to say about the very nature of presidential power and its role in our government is extremely important.  To quote Alan Wolfe:

“By striking a blow against President Bush?s claims of unchecked
presidential authority, the U. S. Supreme Court has enhanced the safety
of all Americans…Separation of powers, judicial review, and bipartisanship do not deny
the need for power. On the contrary, the great political theorists who
shaped our constitutional system understood that power checked is power
better exercised. The important thing is not just to make decisions but
to make good ones. And the more deliberative such decisions are, the
more likely they are to be good.”


Highly regarded legal scholar Cass Sunstein has this to say about the separation of powers:

But the reason for the immense importance
of the decision is neither technical nor difficult. That reason can be
found in the Court's insistence on clear congressional authorization
for the creation of military commissions–and in the broader
implication that even in the domain of national security, the president
must pay close attention to what Congress has and has not said. In a
pointed passage, the Court acknowledged that the president is
commander-in-chief of the armed forces, but added that Congress has
plenty of constitutional authority too–to declare war, to raise and
support armies, to define and punish offenses against the law of
nations, and to make rules for the government and regulation of the
land and naval forces. The Court squarely rejected the claim, pressed
by Justice Thomas and at times the Department of Justice, that the
Constitution gives primacy to the president in protecting the nation's
security.”

Walter Dellinger, former Solicitor General and Duke law professor declared this case to be:

the most important decision on presidential power and the rule of law ever. Ever.  The court has rejected the central constitutional claim of this
presidency: that no president is bound to comply with laws passed by
the United States Congress if those laws limit any exercise of an
astonishingly broad category they call “inherent Presidential power.”

The founders of this nation wanted a president subject to the rule of law who had to substantially share his powers with Congress.  Remeber, these people rebelled against Britain and King George III.  The Constitution is very much designed to give us a president, not a king.  Thanks to the Supreme Court, President Bush has failed in his attempts to assume the power of a King George.  The only downside, is that apparently four of the members of the Supreme Court are comfortable with a more monarchical presidency. 

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About Steve Greene
Professor of Political Science at NC State http://faculty.chass.ncsu.edu/shgreene

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