Legal schmegal -- he's the deciderer

Being a bit behind in my podcast listening, I just heard about this story from last year on the March 28 episode of This American Life (episode 353), which dealt with the lawyerly style of the Bush administration - and when I say "lawyerly" I mean it in the sense of the Ambrose Bierce definition of a lawyer as "one skilled in circumventing the law."

Apparently, the libertarian bible-college law school dimwits in the Justice Department have decided that a century of precedents and the actual language of the Constitution and an international treaty aren't going to stop them from doing whatever they want, especially when it comes to anyone trying to challenge the will of the White House. More on case here.

The short version of events is as follows:

The International Boundary Commission was established nearly 100 years ago by a treaty between Canada and the United States as an international independent body to resolve border disputes between the two countries and to establish exactly where the border is. The U.S. Constitution says that treaties ratified by the Senate are the supreme law of the land. The IBC notified a couple in Washington State that the concrete wall they put up along the back of their yard encroached on the ten-foot border buffer where no construction is allowed and that the IBC could tear down the wall and send them the bill if they didn't remove it forthwith. The couple sued the IBC which, not having much of a budget, approached the U.S. Justice Department for advice. Justice told them they could not help them as they were an international body, not part of the U.S. government.


Then things get interesting. The Pacific Legal Foundation takes up the couple's case and suddenly the Justice Department is all over it. They insist that the IBC hand the whole thing over to them, that the IBC is not an independent international body, but an arm of the U.S. government. When the U.S. commissioner refuses to play ball, he is fired, despite the fact that International Treaty Commissioners like Supreme Court Justices, International Trade Commissioners or the head of the Securities and Exchange Commission, can be appointed by the President to fill vacancies, but cannot be fired. The idea is to take politics out of the position to the extent possible. By putting such appointees beyond the reach of those that appointed them, they are thought to be immune to political pressure and further patronage and therefore able to act with greater impartiality to do the job they were appointed to do.

How did it work out? Well apparently some judges also think the president can do whatever he wants (see also this story). Canada has said nothing about the dispute, at least nothing public.


"So what?" you ask. "What's the big deal?"


Well, the big deal is that this is a classic example of the White House's power grab. In the past, it has taken the form of things like signing statements, unilateral reinterpretation of treaties (like the quaint Geneva Conventions) and withdrawal from treaties (like the ABM treaty) by presidential whim.


Remember when and where Dick Cheney comes from. He still doesn't think Nixon did anything wrong and was just sandbagged by a couple of smart-ass liberal journalists. He is all about centralizing power in the executive branch. And once that power becomes centralized, it isn't going to be decentralized anytime soon. Conservatives and Republicans and assorted Bush fans may think this is a wonderful thing that their president can do whatever he wants, but how would the same people feel about President Hilary Clinton or President Ted Kennedy or President Chelsea Clinton have the sort of monarchical powers that Dubya is claiming. What if President Obama suddenly declares by executive prerogative that he is replacing the members of the electoral commission or by his order black helicopters full of UN troops will be landing across the country to confiscate all privately owned handguns -- how do you like the doctrine of Unitary Executive now?

cross posted from the Woodshed