By Mickey Edwards, a former member of Congress who represented Oklahoma’s 5th congressional district for 16 years
The underlying principle of America’s Constitution is pretty straight-forward. Americans are to be citizens, not subjects. Governments tell their subjects what to do but citizens tell their governments what to do. In the United States, that fundamental hallmark of citizenship is accomplished by (a) placing most of the major powers of the federal government in the hands of the national legislature, and (b) giving the people the right to determine who will serve in that decision-making capacity. Leaving the people with that power to determine what government shall and shall not do, and further arming them with specific restraints on government both within the original text and the subsequent Bill of Rights, the Founders gave citizens powerful weapons with which to defend their liberties.
They had not, however, counted on the pernicious effects of a modern political party system which renders almost moot the separation of powers at the heart of the constitutional check on executive overreach. America’s leading Founders (among them, Washington, Adams, Jefferson, and Madison) warned repeatedly against the creation of the kind of political parties we know today; limited and shifting factions were one thing but permanent factions were something altogether different, something to be feared. If there is one notable feature of today’s party system it is the extent to which American civil liberties are jeopardized by the tendency of congressmen to willingly defer to presidential claims of extra-constitutional authority if the President and congressman share a common partisan identity.
My own personal experience with that problem came when President George W. Bush began to regularly claim the authority to disregard clear federal law – legislation that had become binding law with his own signature – because he felt it impinged on his own broad definition of executive powers and because, well, it would be inconvenient to have to actually veto legislation that combined provisions he agreed with and those he found troublesome, even though the veto is the only remedy constitutionally provided to the President when he finds parts of the legislation distasteful.
The American Bar Association convened a special task force to examine the constitutionality of these increasingly frequent assertions of the President’s right to disregard federal law. The task force, which consisted of both Republicans and Democrats (I was one of its members) unanimously concluded that the President’s claims were unconstitutional and the entire American Bar Association subsequently agreed. Later, I joined the president of the American Bar Association in testifying before House and Senate committees to discuss our conclusions and to urge the Congress to intervene to reassert its primacy in determining law and in demanding that the executive comply with those laws as any other citizen would be required to do. The civil liberties organizations in Washington understood, as the Founders had, the risk posed by Presidents who declared themselves above the law. In addition to my work with the ABA and my support of groups like the American Constitution Society and various human rights organizations, I serve on the board of The Constitution Project and represented it, as well as the ABA, in my testimony. Americans whose focus was on protecting citizens from the far-reaching powers claimed by the executive in the wake of the 9/11 attacks and the ongoing wars in the Middle East cringed at the thought of presidencies unbound by law and unchecked by Congress.
But here’s what happened: because we have adopted a political system that elevates party loyalty to the highest rank of obligation, the Democrats who served on those committees were solid in their rejection of the President’s claims, even though respected legal scholars did make strong arguments supporting the use of these “signing statements” (the presidential claims usually accompanied the signings which turned legislation into law) and Republicans on the committee blithely supported the claims even though the President was claiming to be above the law. How is it possible that on an issue of such critical importance to the protection of American liberties, the Congress simply broke into rival teams, determined to either block the President or empower him based not on merit but on club solidarity (for surely thinking people would have had some measure of disagreement with each other without regard to the party label invisibly affixed to each forehead).
If party identity trumps constitutional obligation; if members of Congress see it as their duty not to check the executive but to protect him or sack him, depending entirely on whether or not they are members of the same political club, fundamental liberties – habeas corpus, trial by jury, right to confront witnesses, protection against cruel and unusual punishment, security against wiretaps and surveillance – will all rest not on the safeguards etched in the Constitution but on how seriously members of Congress take their oath to protect and defend that Constitution even against their political teammates. That is a slender thread upon which to rest American liberty.