(Darryl) Levinson thesis (continued)
SLevinson at law.utexas.edu
Wed Feb 1 20:35:51 PST 2006
>From tomorrow's NYTimes
Senate Panel Rebuffed on Documents on U.S. Spying
By ERIC LICHTBLAU <http://query.nytimes.com/search/query?ppds=bylL&v1=ERIC LICHTBLAU&fdq=19960101&td=sysdate&sort=newest&ac=ERIC LICHTBLAU&inline=nyt-per>
WASHINGTON, Feb. 1 - The Bush administration is rebuffing requests from members of the Senate Judiciary Committee for its classified legal opinions on President Bush's domestic spying program, setting up a confrontation in advance of a hearing scheduled for next week, administration and Congressional officials said Wednesday.
The Justice Department is balking at the request so far, administration officials said, arguing that the legal opinions would add little to the public debate because the administration has already laid out its legal defense at length in several public settings.
We know that Arlen Specter's primary identity is as a Republican, since there's no other explanation for his voting to confirm now-Justice Alito. But doesn't this latest development set up an even sharper test of the Levinson (and others) thesis? This is, yet once more, a statement by the Executive Branch that it has no duty to supply vital information to the relevant oversight committee. A Madisonian Judiciary Committee should vote unanimously to subpeona the documents and threaten Gonzales with contempt if he doesn't produce them. A (Darryl) Levinsonian Judiciary Committee will split on party lines and signify its acceptance of its diminished place in the Bushian universe, unless, of couse, the Democrats take back at least one house in November. But a changed party-line vote will not mean that Madison is right after all. It will simply mean that Democrats are happy to investigate Republicans (and vice versa), not that there is a real commitment to preserving the institutional prerogatives of the Congress against an antagonistic Executive.
I take it that the constitutional implications are obvious: Congress increasingly engages in only token oversight of the executive bureaucracy. Perhaps some people will respond that the 1993-95 Congress didn't engage in much oversight of the Clinton Administration either. That's just what one-party government means. In any case, shouldn't "originalists" at least admit that James Madison tells us nothing at all about the current operation of the American state. Doesn't this mean that judges should have at least some inkling of how government actually works these days before they continue blithely to cite The Federalist or, for that matter, De Tocqueville?
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