Speaking of arrogation of power

Fri Apr 6 05:38:37 PDT 2007

One of the conditions that would need to exist before we would see  
novel adventures in power exercise is the failure of existing power  
centers, such as the presidency, to respond to the will of a  
significant portion of the population.

The president has seemed to ignore the recommendations of the Iraq  
Study Group by forging ahead on his 'add more troops' course while in  
the November midterm elections, the power in the House and Senate has  
switched from Republican to Democratic.  It seems that in taking her  
initiative to visit conflict centers in the Mideast, Speaker Pelosi  
is doing what Justice Jackson described in his Youngstown  
concurrence, when he suggested that power is wielded by those who  
have the power to exercise it, a dynamic process indeed.

Eugene's objection seems to rest on the idea that the Administration  
is the only legitimate source of power to take initiatives in foreign  
affairs while Pelosi's position seems to be that the Administration  
has become discredited by, or to, a large majority of the nation's  
population, and that her party represents this majority, and thus the  
nation, as her party was elected by that majority, and she has the  
votes to prove it, although perhaps not enough to override a veto.

Nevertheless, by dealing with foreign leaders whose nations are  
definitely in play, including Syria, Israel, Iraq, she's asserting a  
new legitimacy for Congress to exercise its power over the foreign  
affairs of the country as a representative of the whole people of the  
United States.  She's saying that she is a more legitimate  
representative of the U.S. than President Bush to conduct foreign  
affairs, in essence.

This may upset some people, but this consideration seems to have been  
rejected, because it represents a view considered and rejected by the  
electorate recently.

rs
sfls

On Apr 6, 2007, at 5:02 AM, Mark Tushnet wrote:

> In the spirit of this post, I wonder (a) whether there’s a useful  
> category of “constitutional pathologies” distinct from the category  
> of “unconstitutional actions [whether or not those actions are  
> justiciable],” and (b) if so, whether we might be able to identify  
> the conditions under which such pathologies arise.  (For the  
> moment, my tentative answer to (a) is “Yes” and to (b) is that  
> ideological political parties play a large role, generating  
> different pathologies in times of unified and divided government.)   
> But I’d be interested in others’ views.
>
>
>
> Mark Tushnet
>
> William Nelson Cromwell Professor of Law
>
> 223 Areeda Hall
>
> Harvard Law School
>
> Cambridge, MA  02138
>
> ph:  617-496-4451 (office); 202-374-9571 (mobile); 617-496-4866 (fax)
>
> From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof- 
> bounces at lists.ucla.edu] On Behalf Of RJLipkin at aol.com
> Sent: Friday, April 06, 2007 12:42 AM
> To: VOLOKH at law.ucla.edu; conlawprof at lists.ucla.edu
> Cc: RJLipkin at aol.com
> Subject: Re: Speaking of arrogation of power
>
>
>
> It might be helpful if Eugene would specify just how Ms. Pelosi was  
> "carrying on foreign policy." She cannot negotiate any treaties,  
> appoint any ambassors, or even for that matter, guarantee any  
> economic aid. Indeed, even if she was inclined--and it's not clear  
> that she was--she could not make any sort of promise to Syria for  
> future consideration.
>
>
>
> That said, I would like to pose the following question to Eugene.  
> There are many Americans, like me, who believe Mr. Bush's invasion  
> of Iraq and the failures that ensued are examples of the least  
> responsible, least competent, and most morally bankrupt phase of  
> American foreign policy in at least my lifetime. His mistakes, I  
> fear, have caused a multifarious range of problems that will take  
> Americans decades to overcome. In my view, whatever general rules  
> about the conduct of congresspersons have little purchase at this  
> time.
>
>
>
> But, I'm sure, Eugene will disagree.  Fair enough.  What I am  
> intensely interested in is what, in Eugene's view, would warrant a  
> Speaker of the House to actually carry on foreign policy--whatever  
> that would like--because the President has dangerously spent our  
> moral capital and put our role in the world and our safety in an  
> extremely perilous state. Alternatively stated, is Eugene's  
> condemnation of Ms. Pelosi based on a general (exceptionalness)  
> principle that Speakers should never carry on foreign policy? If  
> not, then what are the circumstances that would warrant a Speaker  
> to act in this fashion?  More generally, I suspect some  
> conservatives and some liberals differ on what they believe is  
> appropriate political action because their perceptions of our  
> circumstances differ radically.  If that's right, then what kinds  
> of circumstances need to exist before governmental officials and  
> ordinary citizens can conclude that the situation cannot be  
> governed by having a "business as usual" attitude. What  
> circumstances would have to exist before it was morally permissible  
> or required to engage in any legal conduct which attempts to  
> rectify a contemporary disaster however unusual that conduct might be?
>
>
>
> Bobby
>
> Robert Justin Lipkin
> Professor of Law
> Widener University School of Law
> Delaware
>
> Ratio Juris, Contributor:  http://ratiojuris.blogspot.com/
> Essentially Contested America, Editor: http:// 
> www.essentiallycontestedamerica.org/
>
>
>
>
> See what's free at AOL.com.
>
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