Louis Fisher, citing the 1803 case of Stuart v. Laird in his American Constitutional Law states: "The boundaries between the three branches of government are also strongly affected by the role of custom and acquiescence. When one branch engages in a certain practice and the other
branches acquiesce, the practice gains legitimacy and can fix the meaning of the Constitution."
In a 1952 ruling, the U.S. Supreme Court declared unconstitutional President Truman's attempt to take national control of steel mills in order to avert a strike. When they wrote their opinions, the justices took pains to explain how they came to their decisions. And one factor which figured prominently was whether the Congress had taken action to counter the President, or if they had acquiesced and allowed a precedent to be set.
Justice Jackson, in his opinion concurring with the majority put it this way: "Therefore congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law."
Justice Frankfurter also addressed this issue in the same ruling: "The Constitution is a framework for government. Therefore the way the framework has consistently operated fairly establishes that it has operated according to its true nature. Deeply embedded traditional ways of conducting government cannot supplant the Constitution or legislation, but they give meaning to the words of a text or supply them. It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them. In short, a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on "executive Power" vested in the President by [sec.] 1 of Art. II."
Frankfurter also saw fit to include this warning: "The accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority."
Not only are Welch and his fellow travelers ignoring the Bush administration's crimes and constitutional over-reaching, they are establishing a precedent of acquiescence that will make it even harder for a future Congress that discovers a backbone (should that ever occur) to hold the next runaway executive branch to account.
We are facing a severe perversion of our Democracy. The Republicans have criminalized the executive branch. The Democrats, rather than fighting to protect the Constitution (or represent the will of the nation in ending the Iraq occupation), are willing actors in the drama that is unfolding. Regaining power matters above all else. And they have cynically decided that the best way to achieve power is to ride the disintegration of the Bush administration to the bitter end, reaping the political benefits and ignoring the "collateral damage" of lives and constitutional damage that the next seventeen months will bring.
History will judge, not impeach. And the Congress, as well as the President will be condemned for leading the country down such a disastrous and dishonorable path.
What will History have to say about the American people? Will we too be condemned for our inaction? Or will we take action now and be the only bright footnote in this dismal narrative?