What's the Constitutional Equivalent of Checks and Balances?

Jacob Sullum | March 21, 2007

What will happen if President Bush responds to congressional demands that White House aides testify about personnel decisions at the Justice Department by invoking executive privilege? According to a "news analysis" by Adam Liptak in today's New York Times, that would be "the constitutional equivalent of a declaration of war." Isn't a declaration of war the constitutional equivalent of a declaration of war?

Comments

|3.21.07 @ 7:41PM|#

Perhaps a better phrasing would be that it would be "to constitutional law what a declaration of war is to international relations."

It's a pretty strained analogy anyway. I wonder if Bush will impose sanctions if Congress starts enriching uranium?

|3.21.07 @ 7:45PM|#

I warn you gentlemen, I am not to be trifled with. To pull the tail of a lion is to open the mouth of trouble and reveal the teeth of revenge biting the tongue of deceit.

|3.21.07 @ 7:50PM|#

Ever since the Korean Conflict, it's only been equivalent to a Resolution On The Use of Force.

Kevin

D.A. Ridgely|3.21.07 @ 7:52PM|#

Isn't a declaration of war the constitutional equivalent of a declaration of war?

Only until the question is put to the Supreme Court.

|3.21.07 @ 8:00PM|#

Ah the NYT. Don't they make stuff up when it's a slow news day?

Or is that "Dateline: NBC"?

I never could tell the two apart!

|3.21.07 @ 8:02PM|#

According to a "news analysis" by Adam Liptak in today's New York Times, that would be "the constitutional equivalent of a declaration of war."

I think he means that it would be the equivalent of a declaration of war in the eyes of the mainstream media.

...kinda like the custody battle over Anna Niclole's kid.

NotEvenARocketScientist|3.21.07 @ 8:12PM|#

The constitutional declaration of war is hiding in the same spot as "nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation" went with Kelo.

|3.21.07 @ 8:12PM|#

I think he means that it would be the equivalent of a declaration of war in the eyes of the mainstream media.

...kinda like the custody battle over Anna Niclole's kid

Come on, now. Nothing the president and Congress ever did could rise to that level of importance.

Well, not with this president and not since Newt left congress.

Guy Montag|3.21.07 @ 9:07PM|#

No, silly, it is the Constitutional equivelant of "infinity" when arguing with your sister.

Grotius|3.21.07 @ 9:11PM|#

What will happen if President Bush responds to congressional demands that White House aides testify about personnel decisions at the Justice Department by invoking executive privilege?

The issue then would be does executive privilege trump the investigatory power of the Congress?

DAR,

Well, they could claim that it is a political question.

Guy Montag|3.21.07 @ 9:37PM|#

The issue then would be does executive privilege trump the investigatory power of the Congress?

Unless it is funding oversight, they don't have much reaction. Not zero, but not much.

Grotius|3.21.07 @ 9:48PM|#

Guy Montag,

The Congress has a very robust investigatory power across a whole range of issues. Indeed, that is one of the most important functions of the "legislative Power" which has been given to the legislative branch. See cases like Watkins for the Court's take on the general nature of that power. Other case law discusses it in relationship to the executive branch.

The Wine Commonsewer|3.21.07 @ 9:57PM|#

Guy wins the thread....

To Infinity, and beyond.

Reb Yudel|3.21.07 @ 11:07PM|#

We'll try to stay serene and calm
When Obama (and his colleagues) get the bomb....

|3.21.07 @ 11:24PM|#

Is there any question at this point that the NYT is no longer the "paper of record"? I'd put the new hierarchy at the Washington Post, the USA Today, and possibly the NYT a distant third.

|3.22.07 @ 12:12AM|#

This kind of foolishness and the Bush-coddling may take the NYT down a few rungs and deservedly so, but have you ever actually read USA Today? You'd learn more about politics reading People magazine.

Krusty the Klown|3.22.07 @ 12:24AM|#

I'm tellin' ya the Canyonero is the Cadillac of automobiles.

|3.22.07 @ 1:28AM|#

matt,

Sorry, I forgot to employ the "irony" tag for USA Today.

I'd still put the NYT behind the McNewspaper, though.

Guy Montag|3.22.07 @ 5:29AM|#

So, on this "paper of record" thing, they MUST bash Republicans at every turn to retain that, or is it just anybody in power?

Might leave the Post out too, they did some "Busy coddling" this week, look at the outrage a few stories down from here where they said something non-negative about the war!

Guy Montag|3.22.07 @ 7:28AM|#

Did I miss the part where anybody pointed out that it is already against the law to lie to the Congress and this "swearing in/under oath" is just so much showboating nonsense on the part of the Congress?

Guy Montag|3.22.07 @ 7:29AM|#

Correction: "Busy coddling" should read "Bush coddling"

|3.22.07 @ 9:29AM|#

It's already agaisnt the law to lie in court, Guy.

Nice timing on your newfound principle.

Christopher Monnier|3.22.07 @ 9:41AM|#

All of this hubbub over the US attorneys is great; it keeps politicians from further messing up our country!

|3.22.07 @ 9:54AM|#

"the constitutional equivalent of a declaration of war."

Odd that declining to respond to subpoenas is the equivalent of declaring war, but actually impeaching a President is not. Hmm.

|3.22.07 @ 12:07PM|#

I thought Big Bill Clinton sort of changed that part about it being "against the law to lie in court". Repealed perjury and all. Right?

On the other hand - W SHOULD be impeached.

CB

|3.22.07 @ 12:56PM|#

I haven't paid much attention to this issue, but I don't think asserting executive privilege is some shocking thing for a president to do. Whether I agree with the scope of such assertions--now or in the past--is another question, but it's not some newfangled legalistic maneuver.

I have mixed feelings about invocations of privilege, but at least there's some law on them. Beats saying, "No can do--it's a national security matter than cannot be revealed to anyone. Ever. In fact, you must die for asking."

LarryA|3.22.07 @ 1:29PM|#

Simple. Ever since President LBJ declaired "War on Poverty" no issue is au courant without one.

|3.22.07 @ 4:18PM|#

I think it's going to boil down to is if a President's aide receives executive privilege when communicating to the DoJ or between aides and the DoJ.

I can see blocking communication between the President and his advisors, but this isn't the case.