Matt Dickinson’s blog Presidential Power over the weekend updated us on an important legislative development (hard though it is to believe there could be a legislative development at present): the Senate’s odd bipartisan effort to require that all terrorism suspects be detained by the military and tried, if at all, by military tribunals rather than the civilian courts. As Matt notes, this would be true even if the suspect was an American suspect, captured on American soil.
President Obama has threatened a veto. A New York Times editorial urged that he do just that about a month ago, on the grounds that it was a bad idea, but also that Congress was committing “an outrageous usurpation of executive authority.”
Two quick thoughts.
One, for nearly a decade – and as recently as the NATO intervention in Libya (though an “all’s well that ends well” attitude towards that adventure seems to have kicked in) – the left’s accusation has been that the president was usurping legislative authority.
Of course, in such cases it is always hard to know whether people mean that usurpation per se is bad, or merely don’t like the policy change. Those attacking Obama for his efforts to put parts of his jobs program into place unilaterally thought doing this sort of thing was just fine when the president was George W Bush putting his faith -based initiatives program into place unilaterally. And bad when Clinton did it. And good when Reagan did it. Etc. Reverse ‘good’ and ‘bad’ in the above sentences for Democrats.
Second, this is a strange usurpation since it arguably moves the entirety of the detention regime into an arena that the president at least putatively controls, the military. Pres. George W Bush not infrequently invoked his commander-in-chiefness to do just this sort of thing. It limits flexibility, but not necessarily power.
So, if one is a committed Madisonian – where ambition should be checking ambition – how is one supposed to feel when Congress’s ideas for presidential autonomy are actually more expansive than the president’s? Discuss…