Conservatives Re-Discover The Importance Of Checks And Balances

John Yoo and John Bolton, two former second-tier Bush Administration officials, who used their time in office to advocate all kinds of unilateral authority for President Bush in the realm of foreign policy. Yoo was the principal author and researcher of a number of legal memoranda signed by Attorney General Gonzalez indicating that the President, alone and unchecked, had the power to authorize whatever he wanted at Guantanamo Bay, including torture, and notwithstanding any treaties to which the United States was signatory. Bolton made his name in the Reagan Administration invoking executive privilege against judicial and congressional inquiries relating to a wide variety of issues and his mark as a diplomat by, without even any Congressional debate on the subject, "unsigning" the United States from the Rome Convention and the International Criminal Court it created.

I'm not suggesting here that all of these were necessarily bad policy positions. From a normative perspective, I do criticize Yoo for suggesting that torture is legally permissible, but I'm far from sure that Bolton's positions, either on executive privilege or the Rome Convention, are ill-taken. I don't think the U.S. needs to be part of the International Criminal Court; we have a thriving and fair justice system here and we do prosecute our own people for war crimes when they go astray. My point has to do with their advocacy of unilateral executive power rather than the use with which they would have made of that power.

Because what these positions all have in common is an enlarged and functionally unchecked vision of what the President can do. Can the President pull the country out of a treaty? That's a pretty remarkable claim to power, considering that 1) treaties require the ratification of the Senate under the Constitution, and 2) treaties are our highest law short of the Constitution itself. Bolton in particular was a big fan of "executive agreements" taking the place of treaties; an "executive agreement" is just like a treaty between the U.S. and some other nation, only it doesn't require the Senate to debate it.

But amazingly, now that President Bush is going out of office and President Obama is moving in to take his place, Yoo and Bolton have suddenly re-discovered the Constitution. Checks and balances are suddenly quite important. For the future, we should make sure that the President's powers are limited and circumscribed by a Congress vigilant of its own role in our Constitutional system, including limiting the role of "executive agreements" in foreign policy.

Now, they're absolutely right. The President's powers are not and should not be unlimited. We have a Constitution that sets up a system of checks and balances and it's a good thing even if it's inefficient and sometimes cumbersome. But it's sheer hypocrisy to say that we should only have checks and balances if a Democrat is in office and there's no need of them when a Republican resides at 1600 Pennsylvania Ave. N.W. We need them all the time.

I've said before, to conservatives, that if we didn't take care to police against the aggrandizement of executive power, we'd be very, very unhappy the day that Democrats won the White House again. That chicken came home to roost a little sooner than I would have preferred, but here it is and frankly, it was inevitable. This is why it should have behooved us all along to not only do the right thing but to do it the right way.

I suppose that hypocrisy isn't the worst thing in the world. But it does smell bad. And having insisted upon Constitutional government all along, I can take some measure of pride in not having to have compromised myself in the past when I inevitably criticize President Obama and his administration for overstepping his boundaries.