Fein & Power-balance


There’s been great conflict lately over the “balance of power” protections built into the Constitution by the founding fathers, understanding, as enunciated by Lord Acton, that “power corrupts and absolute power corrupts absolutely.” The recent brouhaha in Washington regarding this matter has accrued to presidential “signing statements” in general, President Bush’s use of them in particular, and the tension between him and the Congress concerning alleged torture of prisoners.

A highly respected Constitutional interpreter in Washington is Bruce Fein, who said in the “signing statement” hearing of the Senate Judiciary Committee in June and regarding the Detainee Treatment Act of 2005, “President Bush’s signing statement was tantamount to a constitutionally impermissible line item veto.” In a column in the Lexington Herald-Leader of Sept. 17, he said, “The Supreme Court gives life to the Constitution not because it is infallible, but because it has no partisan political agenda that distorts judgment and systematically subordinates fair process to instant political results.”

Fein said in the District of Columbia Bar of February 2005, “President George W. Bush should pack the United States Supreme Court with philosophical clones of Justices Antonin Scalia and Clarence Thomas and defeated nominee Robert H. Bork. … Senate Republicans should vote the Senate filibuster rule as applied to thwart a floor vote for judicial nominees unconstitutional and unenforceable.”

In these statements is seen the confliction of one who eloquently articulates the “balance of powers” concept juxtaposed with the reality of politics. Regarding the presidency and notwithstanding the acknowledged Constitutional powers of the “signing statement” all the way back to Andrew Jackson, for all practical purposes Fein condemns the “signing statements.”

Fein insisted that the Supreme Court has no political agenda, yet strongly advanced the notion that the president should appoint justices who obviously conform to his concept of Constitution-interpretation arbiters – a not-so-thinly veiled recognition of a type of partisanship. He didn’t forget the Senate and thoroughly thumped it for engaging the “filibuster rule,” something nowhere mentioned in the Constitution. Indeed, it was only through the action of the “gang of 14” senators who screamed “Enough!” that Justices Roberts and Alito made it to the SCOTUS.

Fein is a lawyer and as such perhaps views the judicial arm as the most important in government, not least because its members are tenured for life and therefore less apt to bow to the same sort of corruption so easily seen in the elective process and subsequent actions by the elected that are designed to protect their incumbencies and in many cases enhance their fortunes.

In his DCBar commentary Fein said, “A decent respect for government by the consent of the governed does not foreclose the Supreme Court from voiding acts of Congress, the president, or the states. The whole purpose of a written Constitution is to deny absolute power to the political branches.” But in the same article and regarding Roe v. Wade, Fein said, “But Roe required an hallucinogenic flight. Blackmun [writer of the opinion] relied on penumbras and emanations of the Constitution.”

So, Fein recognizes the possibility of either an agenda on the Court or a quintessential ignorance, or both. He explained that the Court’s action effectively removed from the public and its deliberative bodies even the possibility of debate on what is probably the thorniest social issue ever to face the nation, the ramification of which has meant the depriving of life from some 47 million potential American citizens.

The “torture problem” is now front and center. The president must protect the country, though he’s not interested particularly in being told by Congress how to do it as long as he does it legally. The Congress doesn’t want to tell him how to handle torture with any specificity because its members see their votes as stingers with respect to incumbency. They’re determined to scream about “Geneva Convention protocols” and let the president stand or fall on how he interprets them; however, the Court has said that he must have authorization from Congress.

The bottom line: A vague law to which the president will add a “signing statement.” The whole thing may go to the Court…some day. In the meantime, the nation will continue on its messy way, proving that in the foibles attendant upon any human exercise the system can work, though perhaps in spite of its glaring inefficiencies rather than because of the goodness – or even the intelligence – of people.