Friday, December 7, 2007

“L’État, c’est moi”

In FISA Speech, Whitehouse Sharply Criticizes Bush Administration's Assertion of Executive Power
7 Dec 2007
... For years under the Bush Administration, the Office of Legal Counsel [OLC] within the Department of Justice has issued highly classified secret legal opinions related to surveillance.
...
As a member of the Senate Intelligence Committee, I was given access to those opinions, and spent hours poring over them. Sitting in that secure room, as a lawyer, as a former U.S. Attorney, legal counsel to Rhode Island’s Governor, and State Attorney General, I was increasingly dismayed and amazed as I read on.
...
To give you an example of what I read, I have gotten three legal propositions from these OLC opinions declassified. Here they are, as accurately as my note taking could reproduce them from the classified documents.
...
1. An executive order cannot limit a President. There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it.

2. The President, exercising his constitutional authority under Article II, can determine whether an action is a lawful exercise of the President’s authority under Article II.

3. The Department of Justice is bound by the President’s legal determinations.


Forgive me if I'm being obtuse, but it seems to me that opinion #2 above logically implies that OLC is asserting unlimited Executive Power.
Opinions #1 & #3 reinforce this assertion by allowing the Executive to over-ride both Executive precedent and statutory limitations.
Am I missing something?

Does W really want to bequeath this legacy of unlimited Executive power to his Democratic successor? [see, e.g., Let's assume they're not idiots, below, for further commentary.]

U.S. Constitution
Article I, section 1
Before he [The President] enter on the execution of his office, he shall take the following oath or affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

Article VI
... all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution...

Article II, section 3
... [The President] shall take care that the laws be faithfully executed...

No comments: