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Can the House really believe the new FISA bill means that it has reined the president in? The New York Times reports, "yes." And here's why:
Perhaps the most important concession that Democratic leaders claimed was an affirmation that the intelligence restrictions were the "exclusive" means for the executive branch to conduct wiretapping operations in terrorism and espionage cases. Speaker Nancy Pelosi had insisted on that element, and Democratic staff members asserted that the language would prevent Mr. Bush, or any future president, from circumventing the law. The proposal asserts "that the law is the exclusive authority and not the whim of the president of the United States," Ms. Pelosi said.
That was the New York Times, by the way. Not the Onion.
As everyone knows, the last version of FISA said it also was the exclusive means. In fact, it was that language that led so many to think the president's actions were plainly in violation of law, no matter what Rube Goldberg-esque theories of statutory interpretation the administration offered. So, how does immunizing that prior lawbreaking enable anyone to take seriously the claim that this new legislation is now super-duper exclusive?
Someone should ask the president whether he is now conceding that he has no constitutional authority to act in violation of this statute. And someone should ask whether he will commit to not issuing a signing statement asserting a reserved power to do what this exclusive legislation forbids. But, of course, even if he said "yes' to both questions, it would not matter. Presidents can no more bind themselves than they can bind their successors. What actually binds them is a combination of informal and formal checks, such as the specter of intensive congressional oversight, legal liability, or judicial review-checks that this bill diminishes.
Looking back at this whole affair, if this legislation passes, would you think this new statute is really super-duper exclusive, in fact, or more like kinda-sorta exclusive?
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I am confused. The New York Times first reports that John McCain now agrees with the Bush administration that the president has the constitutional power to disregard FISA. Now, today it publishes a story saying Bush is alarmed he'll lose the statutory authority Congress recently gave that permits him to get around the old FISA framework. But wait-I thought Bush said he could not be bound by legislation in this area in the first place, so great were his powers as commander in chief. So, why then is he worried about whether Congress does or does not renew the temporary legislation permitting him to get around FISA? Can't he just disregard FISA no matter what Congress does or does not do? And isn't that just the legal position that McCain was supposedly signing on to a couple of days ago?
Of course, one possibility is that the administration actually won't comply with FISA even if Congress fails to reauthorize the current Terrorist Surveillance Program. Sure, it says it will be required to do so, but that's just part of an effort to pressure Congress into granting new powers. When push comes to shove, the administration will do what it did when no one knew what it was up to: just defy the laws on the books by claiming preclusive constitutional powers. But let's assume the administration is serious when it says that if negotiations on the Hill fail to result in a reauthorization, they'll be stuck with the old regime. What has changed that now makes them feel so stuck?
Is it:
1) Lawyers within the Justice Department have rejected the argument that the Constitution gives the president the power to disregard FISA and also concluded that recent legislative developments have rendered illegitimate the controversial claim that the initial Authorization To Use Military Force from 2001 superseded the old FISA regime? If so, that's a big deal, and it would be good to know how this internal legal shift came about.
2) Lawyers for the telecoms have finally balked and are no longer willing to participate in a program that is based solely on the administration's claims of commander-in-chief override power or the AUMF-supersedes-it theory. If so, it would be good to know what has caused the telecom lawyers to feel obliged to say, "No."
3) The FISA court has basically made it clear that it will make even the old regime useless so long as the administration also relies on a parallel, supersecret non-FISA surveillance program that has not been separately approved by Congress, presumably by deeming even requests under FISA fatally tainted. If so, it would be nice to know just what theory of law the FISA court is using and why the Bush administration feels the need to rely on the FISA process for some things in the first place such that it would lose something significant if it lost access to the old regime.
4) The politics of the moment have changed now that the whole supposedly secret program has been made so public that the debate over its legal underpinnings has become a campaign issue. So, even though the administration believes it has the legal power to disregard FISA and the telecom lawyers would comply with requests to do so, it simply no longer feels it can act on what it believes to be correct understanding of the law as a practical matter. But if so, what is it about present politics that are now so different?
For what it's worth, (1), (3), and (4) all seem like weak explanations to me, but this being a state secret and all, I have no idea. What I am interested in is the underlying puzzle: On the one hand, the administration is claiming preclusive constitutional authority, and we are debating the extent to which the Republican nominee shares that same constitutional philosophy. On the other, the administration is bemoaning the fact that Congress is forcing it to comply with an outdated statutory framework. How can both things be true? And if both are, what is the dynamic that makes the administration feel unable to break a law that it believes it has the legal right to break and that it has disregarded in the past?
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Here's an interesting post laying out a quite troubling scenario (at least to me): McCain loses the popular vote by more than 1 millon, but wins the election due to the electoral college. Perish the thought. But what if?
Obviously, one solution for the future is to scrap the electoral college altogether, something Senator Nelson of Florida proposed today.
But as it happens, I came across this news while reading Arthur Schlesinger's updated version of The Imperial Presidency. There, he sets forth a plan for avoiding such a problem that seems to have been lost to history (or at least, came as news to me) and that seems preferable to dispensing with the electoral college altogether.
Schlesinger calls it "The National Bonus" plan. The idea is to keep the electoral college, but then augment it with additional "electors" for the winner of the popular vote. His proposal was to award a total of 101 bonus electors to the winner of the popular vote, which strikes me as at least 50 too many. After all, if the bonus is too big, the college gets wiped out for all practical purposes; candidates need not really compete very hard outside their natural bases of support. The arguments for keeping the college -- many of them are actually laid out nicely by Schlesinger himself -- seem compelling. But so too does the concern about general elections repeatedly trumping the popular will. If the bonus is sized right, however, then the popular vote becomes another swing state, and probably a decisive one so long as the canddiate wins enough other swingers. In other words, we keep a system that ensures state by state competition without risking outcomes in which the popular vote and the electoral college are likely to diverge.
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I just can’t muster up a lot of outrage about Indiana’s Voter ID law. Tim is right that we have a de facto national ID now. The Indiana law is nothing like a poll tax: This law may or may not be attacking a nonexistent problem of voter fraud, but either way, it’s attacking it by requiring people to do something almost everyone would do, anyway.
Jack, I thought David—like Deborah—was saying that one of the injuries the Indiana law is correcting is the perception—warranted or not—of voter fraud. David’s point: That perception may well be in the way of other reforms to make voter registration and voting easier (example: the most commonly voiced objection to voting by phone or by the Internet is fraud—an ID requirement might address such concerns and lead to sensible reforms that would allow more people to actually vote). Whether or not any such reform would be wise, maybe it’s better that the courts stay out of this and let the political processes at the state level work.
From this perspective, it’s a bad idea for the courts to require the state to show they’ve already implemented the reforms in order to“compensate” for the burdens of the voter ID law because 1) there’s little evidence of any more than minimal burden; 2) the point isn’t that the reforms would “compensate” for the burdens of the voter ID law—it’s that the reforms would be good in and of themselves (even if they, say, make it easier for different people to vote than the people burdened by the voter ID law); and 3) the ID law may be the precondition to the other reforms: If the state had to show that it had already taken steps to ameliorate the (possibility nonexistent) burdens, then it would never be able to generate the confidence that would smooth the way for the reforms.
Another way of looking at this—maybe a formal voter ID law is better than voter eligibility requirements that are enforced ad hoc—either at the polls by overzealous poll watchers or after the fact through litigation challenging the results. The ID law makes it simple to ensure that everyone who votes is who they say they are and to check and make sure no one votes twice, thus reducing the need for other types of (often discriminatory) enforcement and cutting the legs out from under potential litigation by the losers of the election. Echoing David: Shouldn’t the Constitution allow a state to make such a trade-off, at least unless someone can show actual and significant injury in the application of the law?
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Marty nicely describes the paucity of evidence supporting Indiana's claim in Crawford v. Marion County Election Board that voter fraud is rampant in Hoosier land. After all, the Court long ago held in Croson that Richmond could not rely on experiences eslewhere to defend it's affirmative action policies. Well, if evidence of race discrimination in the capital of the Confederacy was too uncertain to count unless backed up with local studies, then why should Indiana be able to rely on the lone phony voter in Washington state to save it preferred policy from constitutional challenge?
Fair enough. But consider the other side: just how much evidence did the plaintiffs have to show that the new law would disenfranchise lots of folks? After all, the district court found that 99 percent of Indiana voters already staisfty the new standard and that there is good reason to think that the 1 percent who may not now, easily can. That could be wrong, of course, but the paucity of evidence on both sides here does suggest the reason for the Court's reluctance to decide this facially. Of course, ignorance is not always an excuse. A poll tax is hard to describe as anything other than a burden on the right to vote, no matter if there is evidence of just how many poor people it would block from going to the polls. But an identification requirement is a burden only if in practice it actually operates that way. So, one would think there would need to be a pretty substantial showing first to support a facial attack.
Plus: it's not clear that the politics of this ruling are as bad as Jack or Marty indicates. Here, the state has on its side election monitor extraordinairre - President Carter -- who chaired a presidential commission on election reform that seemed to approve of voter ID requirements as being legitimate. As Carter no doubt reasoned, it may well be much easier politically to pass real reforms to make registration easier -- which could substantilly increase voting by the now disenfranchised -- if strict anti-ftraud measures are also in place. I'd be hesitant to see this case, therefore, as a bad development for those that want to increase the voting ranks. It may instead be a precondition for freeing new possibilities in election reform that could, on net, lead to greater enfranchisement. In other words, if you ensure voters are who they say they are, we'll let you register more of them. Don't we want a Constitution that would facilitate such a trade?