Congress Trying To Weaken Separation Of Powers

It seems that I'm not the only one that sees that Congress's disregard the Separation of Powers as defined by the US Constitution.

The malicious nature of the Democrat controlled Congress “inquiry” into the firing of eight US Attorneys is, as I mentioned in yesterday's post, a manifestation of BDS. If the President was a Democrat, this inquiry wouldn't even be taking place. The double standard is showing itself by the actions of Congress.

Presidents Washington, Jefferson, Madison, Jackson, Polk, Lincoln, both Roosevelts, Truman, Eisenhower (whose administration invented the phrase "executive privilege") Kennedy and Reagan, among others, have kept executive deliberations secret from congressional inquiries, usually over matters of diplomacy, national security and law enforcement. Courts have recognized that discussions among their senior advisors, not just meetings when presidents are in the room, also receive protection. So why aren't Republicans fighting to defend executive privilege now?


Some Senate Democrats say Mr. Bush is just "stonewalling" and insinuate that he must be trying to hide something, as Judiciary Committee Chairman Patrick Leahy (D., Vt.) has darkly intoned. But as he well knows, executive privilege traces its lineage to George Washington. In 1796, the House of Representatives demanded all his papers related to the controversial Jay Treaty with Great Britain. Washington refused, saying that the Constitution barred the House from the making of treaties. Firing U.S. attorneys and any other executive officers, including those requiring Senate approval, rests beyond the constitutional powers of Congress, and totally within those of the presidency. This has been true since the first cabinet departments were established in 1789.

The Supreme Court held in 1959 that, "Since Congress may only investigate into those areas in which it may potentially legislate or appropriate, it cannot inquire into matters which are within the exclusive province of one or the other branches of the Government." In the 1974 Watergate tapes case, the Supreme Court said that the president's right to protect information is strongest when law enforcement, national security or his other constitutional powers are involved. Under that rule, Mr. Leahy has no right to see the president's communications about the firing of federal attorneys, the nomination of John Roberts or Samuel Alito to the Supreme Court or the reduction of Scooter Libby's sentence.


Presidents can't invoke executive privilege to protect information needed for a criminal investigation, except perhaps if national security is at stake. Kenneth Starr pursued Mr. Clinton not for harassing Paula Jones, or having a relationship with Monica Lewinsky, but because Mr. Clinton apparently committed perjury and obstructed criminal investigations. Senate Democrats have yet to show that the firings have arguably violated a single law. Dumb and bad politics, maybe--criminal, no. If Senate Democrats really thought there was any crime here, then they ought to find somebody maliciously or politically prosecuted by a new U.S. attorney, or an FBI agent forced to drop a good case because of a new U.S. Attorney's partisan agenda. There is nothing criminal about a president's changing law-enforcement priorities, or replacing his political appointees with new blood.

This smacks of a power grab by the Democrats in Congress.

Remember when certain Democratic members of the Senate suggested that the President should consult them before submitting the nominations of federal judges or Supreme Court justices? More than one suggested that the means of selecting such jurists should be changed so that the President and Congressional leaders made the selections/nominations. There was only one problem with these suggestions: they were unconstitutional. Only the Executive branch of the government, and specifically the President, has the power to nominate these jurists. There is no leeway in this. It would require a constitutional amendment to make it legal, something the Dems knew they would not be able to achieve in a timely fashion. They were going to try to muscle in on the nomination process by legislating rules changes, but all it would take is a challenge brought to the Supreme Court by the President to quash the naked ambition of the Democrat lawmakers, and they knew it.

It's about time that the Democrats realize that at this point that they're wasting taxpayer dollars and pissing off the electorate. If the Republicans had a shock in 2006, I believe the Democrats are opening themselves to an even bigger one in 2008.

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