“Only the Supreme Court has limited the executive sweep of power…” Arlen Specter said at the hearing for the nomination to the post of Deputy Attorney General.

He stated several instances in which the President has blocked the oversight of the Legislative Branch into the doings of the Executive Branch – even in cases of suspected criminal activity and the abuse of power.

He could surmise that only the courts have been able to exercise oversight where the Congress had not been able to.

Only after a threat to take a matter to court, rarely but occasionally by some part of Congress, or in the face of a court decision had the stalemate been broken.

It might appear then, that Congress should take all matters to court when there is no response from the Executive Branch. However, there are reasons why this is so rarely done.

Once something becomes a lawsuit, it tends to drag out across appeals and proceedings. If a court decision is the only thing that can enforce oversight and accountability, then there is a risk that while the matter is being dragged through the judicial process, people and data of importance might disappear or “expire.”

Furthermore, as time passes and other issues arise, political benefits, public interest and back-up and time to spend on the matter typically all decrease.

Additionally, even the highest judicial authority – the Supreme Court – is subjected to some degree of political influence. As a collection of humans, its decisions are influenced by the ideological beliefs of its members.

As I pointed out in The Silent Coup, both Supreme Court Justices appointed by this Administration, were criticized at the time of their nomination precisely for past actions indicating that they had views of constitutional interpretation favorable or supportive of the theory of the “Unitary Executive.”

Lastly, neither branch wants a matter to end up before a court if they feel uncertain about what the outcome – after all appeals – will be.

The final decision will set a precedent and become the standard of judging all similar cases in the future. It can just as well turn out to be a blow to the litigating party, as a victory. Since legal matters are rarely far from obvious, even if it might seem very clear to the public, it is often a matter or great risk to take a conflict before the court. Just how unclear a legal outcome can be, can be seen in Congressional hearings exploring the legal standing of a certain case the House or Senate is considering to bring to court. Typically, all sides defend their position by citing parts of the Constitution or statutes, knowing that the decision of a court will be based on interpretation of existing laws. After two hours of doing this and challenging each other’s selection and interpretation of referenced legislature, most cases which seemed pretty clear at the start seem much less so afterwards.

National Security

“National security” has been an engine of modernization and transformation for the presidency, but Congress has not seen a concomitant (simultaneous) evolution of its power. Accordingly, concerning national security, Congress remains a 20th Century institution attempting to check the power of a 21st Century presidency.

Over the last several decades, Congress has acquiesced to, or helped create new institutional structures in the Executive Branch under the banner of “national security” without assuring that these changes are subject to effective oversight.”

Witness testimony at Administration Oversight, Waste, Fraud, and Abuse Hearing

 1  |  2  |  3  |  4  |  5