Mickey Edwards on the Constitution and the Presidency -- Part 2

By Carol Gee

One of the attractions of the Barack Obama candidacy is his ability to bring people together who are not from the same political party. His appeal is sometimes to bipartisanship, perhaps even nonpartisanship. I believe the American electorate is hungry for this after 8 years of acute political polarization. This post is one of my steps in the direction of that same spirit. I begin the way I opened the last post:

An outstanding program was presented by former U.S. Representative Mickey Edwards, (R-OK), January 7, 2008, at The Washington Center for Internships and Academic Seminars and broadcast on C-SPAN. Edwards' lecture focused on the U.S.Constitution and the current presidential races.

Mickey Edwards is a Constitutional scholar and journalist who wrote a yet to be released book, "Reclaiming Conservatism: How a Great American Political Movement Got Lost--And How It Can Find Its Way Back." Currently a Vice President at the Aspen Institute and on the faculty at Princeton, Edwards served as a Republican U.S. Representative from Oklahoma from 977-1993. He was on the Appropriations Committee and in the Republican leadership.

I took four pages of notes during the broadcast which I am presenting here in essay form, as I have in the past with congressional hearings. I paraphrase Edwards when I did not get exact quotes. And I have rearranged his points for flow and clarity. I have tried for as much accuracy as I can, because he presented important material in a brilliant manner. I will post it in 3 installments. The second installment begins with this Edwards material:

The rule of law and the Judicial Branch – What happens when the President will not obey the law and Congress tries to go to court to make the President follow the law? What is our recourse? The problem is that the courts make access so difficult. The issue is that the Supreme Court and the other Federal courts have Constitutional rules of "standing," entitlement to bring suit in that court to settle “cases and controversies.” When Edwards was in Congress he and a number of other legislators wanted to sue President Carter in Edwards v. Carter. They lost because the courts said they did not have standing. They had not been personally injured. We do not know whether we have been wire-tapped, for instance.
And the courts have twice not upheld the line-item veto for a president.

The President has no power not to implement any of the laws. He has no power to violate any law that he has signed. In the Jackson Supreme Court decision, it said that when Congress speaks on an issue, presidential power is then at its lowest ebb. The three branches are equal.

So, if going to court is not practical, what can a Congress, that does not have "standing," do to force a President to follow the law? Edwards’ suggestion is that Congress use the power of the purse. It would go something like this: Congress could say, "We will cut $25 million out of the office of the Secretary of the Interior. Or we will not fund the office budgets of three such departments. And we will begin to issue a number of subpoenas, and hold a number of hearings."

Congress has enormous powers that they do not use effectively. Edwards declared that "this Congress valued loyalty more than the Constitution. The powers of Congress are an obligation imposed on the members of Congress to fulfill. It is their responsibility to exercise it under the Constitution."

How did we get where we are today? Edwards said, "We have lost track of what our system is and why it is different than what went before." We have forgotten that the President is not the head of government. The Constitution was designed to keep the power in the hands of the people, through their elected representatives. For example look at Congressional earmarks. Congress is to decide on spending, as opposed to letting the Executive branch decide -- the OMB, for example.

We are too ignorant of our system of government. Students have not been taught, and the press does not point out such things.

What about Iraq? The war was justified under false claims. It was called a "preemptiv" war. But that is when we go to war because someone is presenting an active threat to the U.S. It was actually a "preventive" war. That is when we go to war against someone who may become a threat. Edwards said that as he has traveled in the Middle East, he learned that there is almost universal anger at the U.S. for the invasion of Iraq. The leaders were opposed to us going in; but now these same leaders are against our arbitrarily leaving prematurely.

To be continued.

(Cross-posted at South by Southwest.)