Quick reminder of this afternoon’s book salon: a discussion of Supreme Conflict at 5 pm ET/2 pm PT. Hope to see you there!

Jack Balkin has been conducting a fascinating series of discussions on the question of "living Constitutionalism" — the "process of change through which constitutional doctrine responds to social and political mobilizations and long term changes in popular opinion about what the Constitution means." As we grapple with the Bush/Cheney Administration’s actions to further their unilateral executive objectives, we have confronted — time and again — the questions of checks and balances and accountability. And the lack thereof for far too long, far too often.

In response to Jack’s series, Marty points out the gaping hole of inconsistent argument in unilateral executive power grabs — the power of the Federal Reserve and the unconstitutionality thereof:

But where are the unitary executive proponents — in the Administration and among the academic and other champions of Justice Scalia’s dissent in Morrison v. Olson — when it comes to the most important and powerful "independent" agency of them all, the Federal Reserve? Nowhere to be found, far as I can tell. Indeed, apparently they see no problem in expanding the purview of the Fed even further, to give it virtually unreviewable regulatory authority over additional sectors of the economy.

To be fair, in a footnote in an Arkansas Law Review article in 1994, Steve Calabresi, one of the leading proponents of the unitary executive theory, conceded that under his view the statutory independence of the Fed is unconstitutional. (Calabresi also argued that such legal independence is unnecessary, because even without statutory insulation from the President, a "practical independence can always be achieved within our formal constitutional structure if public opinion thinks it desirable that it should exist" — a conclusion that does not contend with the distinct possibility that the public expectation of Fed independence is largely a function of the fact that the Fed has been legally immune from executive control for so many decades: Before Congress limited the President’s removal power in 1935, there was no expectation of independence — the Fed included the Secretary of Treasury and Comptroller of the Currency as ex officio members so as to preserve executive control specifically to insure that the executive branch would be able to exert an appropriate degree of control over monetary policy, and President Wilson used the threat of removal to influence monetary policy.)

But there’s a reason that concession is buried in a footnote. If Calabresi’s is truly the view of the unitary executive proponents, they don’t speak about it much in mixed company — because to do so would reveal the radical nature of their otherwise reasonable-sounding theory: Taken seriously, Justice Scalia’s widely admired arguments in Morrison would call into question the independence of the Fed and many other agencies that the public now assumes will and should act independently of White House control. And to question the constitutionality of these agencies at this late date would be to sound the death-knell for the unitary executive theory . . .

Lawyers are trained to consider all sides of an issue before formulating their arguments, especially those which call their own theories or client needs into sharp question. When you do not do so, the logical inconsistencies in your arguments stick out like neon signs of incompetence.

What the Bush/Cheney legal architects have done is to put their desired conclusions before honest assessments, time and time again ignoring any pesky facts or laws or principles which made what they were doing untenable and unsustainable. The resulting stew in which we all find ourselves is that the rule of law is subordinated to the whims of the chief executive — no matter how logically inconsistent or damaging they may be.

As I said yesterday, the conservative chestnut that they abhor judicial activism lacks honesty. What they mean is they vehemently disagree with judges whose reasoning is liberal in its bent, and that they will do everything in their power to make certain no judges who do not think the "right" way get on the bench.

(YouTube of Associate Justice Breyer at a forum on executive power during war. Fascinating clip, and one that journalists would do well to watch.)


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