When Senator Arlen Specter decided yesterday to abandon the Republican Party to join the Democratic Party, he stated that “I now find my political philosophy more in line with Democrats than Republicans.” In light of the legislative agenda he articulated in the current issue of the New York Review of Books, he is certainly right as a general matter, but whether he is right with regard to specifics and political will, only time will tell.
The main objective of his legislative agenda outlined in the NYRB is to reassert congressional power to contest what he identifies as “presidential power grabs.” The separation of powers is unbalanced. The Bush Administration greatly expanded the exercise and assertion of unilateral executive power. Democrats decried the perceived abuse. Now the Democrates control the executive branch and possess expanded powers inherited from the prior administration. Do the Democrats in Congress have the political will and Presidential cooperation to limit some of the most far-reaching assertions of executive power? Senator Specter might be counting on it. He certainly has not been able to count on Republican support for many of his legislative proposals, especially since Republican political philosophy believes in the prerogative of inherent, and unenumerated, executive power. What are his legislative proposals, and are they likely to succeed?
Specifically, he first “intend[s] to introduce legislation that will mandate Supreme Court review of lower court decisions in suits brought by the ACLU and others that challenge the constitutionality of the warrantless wiretapping program authorized by President Bush after September 11.” Second, he wants to “reintroduce legislation to keep the courts open to suits filed against several major telephone companies that allegedly facilitated the Bush administration's warrantless wiretapping program,” substituting the federal government as a defendant in place of the telecoms. Finally, he seeks to “reintroduce my legislation from 2006 and 2007 (the "Presidential Signing Statements Act") to prohibit courts from relying on, or deferring to, presidential signing statements when determining the meaning of any Act of Congress.” The first of these proposals is an attempt to mandate jurisdiction where the Sixth Circuit denied standing (and the Supreme Court denied certiorari) to plaintiffs who alleged constitutional violations from the NSA’s Terrorist Surveillance Program. Senator Specter seems to think that if the Supreme Court were to hear the case on the merits, it would likely find constitutional and statutory violations. This hope is built on Specter’s discussion of cases such as Hamdi, Rasul, Hamdan, and Boumediene in which the Court checked the executive’s far-reaching assertions of power. The Court had played its role, albeit in a slow, halting, and limited manner (7 years of litigation to establish habeas jurisdiction over detainees who could not be tried before military commissions unilaterally established and administered by the executive branch), in providing some check to executive power, whereas party loyalty all but eliminated any institutional check by Congress. Senator Specter was a sometimes lone Republican asserting separation of powers concerns against the Bush Presidency. The Court has indeed done better than Congress in providing a check and counterweight to the President since September 11. If Congress exercises its Article III power to regulate the Court’s jurisdiction to mandate review of the ACLU challenge, Specter will perhaps get his desired result. But only perhaps. Supreme Court review would provide greater certainty in a constitutionally uncertain domain no matter how the Court rules. But, are Congress and the President any more willing to leave the constitutionality of the revised TSP program to the Courts, than they are to engage in a more robust, independent inquiry into its constitutionality on their own? Would the Court decide the case on the merits or find other "case and controversy" problems with the imposed jurisdiction. Perhaps, but it is by no means guaranteed. At the very least, a President dedicated to the rhetoric AND practice of rule of law should not stand in the way.
For brevity’s sake, I want to skip his proposal regarding suits against the telecoms. Regarding presidential signing statements, Senator Specter is concerned not only because President Bush pioneered the extensive use of the signing statement to revise legislation outside of the normal bicameralism and presentment procedures, but President Obama has already made use of the practice as well. As an aside, I note that the tenor of Obama’s statement on signing the Omnibus Appropriations Act of 2009 is devoid of any of Bush’s boilerplate about the unitary executive and such (e.g., “The executive branch shall construe . . . the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power.”). Nonetheless, Senator Specter believes the practice resides outside of the Constitution and is therefore illegitimate (he objects to Obama's use here). I tend to think that President Obama’s guidelines for using signing statements (and for reviewing all of Bush’s statements) do not necessarily evoke constitutional concerns. No doubt, such statements can and have been abused. But they can also play a legitimate role. For instance, “to promote transparency and accountability,” it is useful for the President to articulate publicly how he understands particular legislative provisions. To distinguish between legitimate and illegitimate uses of the practice, we may have to rely on “enlightened statesman” (who will not always be at the helm). Sen. Specter’s proposed legislation does not undermine or eliminate the practice, only its legal significance. Certainly, the Court is not usually inclined to defer to presidential interpretations of congressional statutes or of presidential power. In that regard, Senator Specter’s proposed legislation does no harm, but may fail to accomplish anything of lasting structural significance.
Congress would do well to heed Senator Specter’s overall philosophy outlined in the NYRB. It is a philosophy often shared by Democrats. A philosophy of balanced and constrained powers would lead to institutional checks on executive power, badly needed before events give rise to renewed claims of executive necessity and prerogative. Even while the Democrats welcome him into the fold, they should welcome his agenda of providing new constitutional balance to a current state of unbalanced power.