Who Will Restore the Balance of Power?

The Bush administration's gross abuse of presidential power demands that we insist on the next president reversing the damage done to the constitutional principle of separation of powers.

The reversal of the imperial presidency, a mainstay of the right from Nixon onward, must be a core plank of our agenda if we are to have no more undeclared wars, no more detentions without legal rights, no more signing statements on bills that disregard the congressional intent in signing them—in short, no more presidents operating as if the Constitution is an annoying inconvenience.

It is essential, as Robert Borosage wrote Wednesday [1], that Congress rein in the abuses by the White House before those abuses become entrenched. The Supreme Court made this clear more than 50 years ago, as Borosage wrote: "What the Court said in Youngstown is that if presidents assert a prerogative, such the power to make war without a congressional declaration — systematically, with unbroken regularity, with the knowledge of the Congress and are never questioned — then that practice becomes a Constitutional power that cannot be infringed upon by the Congress or the Courts."

Right now activists are watching with grave concern [2] Sen. Barack Obama's vow to vote for a Foreign Intelligence Surveillance Act bill now before the Senate that Sen. Russ Feingold, D-Wis., said on Wednesday was a "capitulation" to the Bush administration's reach for expansive authority to spy on Americans and disregard our civil liberties.

Obama has pledged to fight immunity [3] for telecommunication companies that broke the law to bend to Bush administration demands for surveillance activity. But this is far from enough to satisfy the larger demand for a democracy in proper balance.

A major speech [4] Obama gave in 2007 on terrorism makes promising statements:

This Administration also puts forward a false choice between the liberties we cherish and the security we demand. I will provide our intelligence and law enforcement agencies with the tools they need to track and take out the terrorists without undermining our Constitution and our freedom.

That means no more illegal wire-tapping of American citizens. No more national security letters to spy on citizens who are not suspected of a crime. No more tracking citizens who do nothing more than protest a misguided war. No more ignoring the law when it is inconvenient. That is not who we are. And it is not what is necessary to defeat the terrorists. The FISA court works. The separation of powers works. Our Constitution works. We will again set an example for the world that the law is not subject to the whims of stubborn rulers, and that justice is not arbitrary.

But then again, so does Republican presidential candidate John McCain, whose website says bluntly [5]:

"The President's powers are rightly checked by the other branches of government, and John McCain will not attempt to acquire powers granted to Congress. He will exercise his veto but not subvert legislation through statements. "

We need more than these words. President Bush has so damaged the framework of our democracy and so recklessly abused the powers of his office that if impeachment isn't warranted—and many in the progressive movement vigorously disagree on that point—certainly an inquest into that abuse is essential. It is fair to ask both presidential candidates where they stand on that inquest and on how they would conduct their presidencies so that they, too, would not be liable to face such an inquest from a future Congress.