Constitutional Perfect Storm (almost)

[Miguel Schor]

To follow up on Gordon's post, I wonder whether we have our eyes on  
the wrong storm.  The separation of powers battles now brewing no  
doubt will play a large role in shaping the constitution but the more  
important battles may be over how policy is made in Washington.  The  
surgeon general's recent testimony that politics trumped health care  
policy is simply another example of how public policy has been  
sacrificed on the altar of Karl Rove's desire to create a permanent  
republican majority.  Clientelism, moreover, has an acidic effect on  
constitutions as well as on politics.  Polities where clientelism is  
the order of the day tend to have constitutions that facilitate the  
arrogation of power in the name of emergency.  Perhaps American  
constitutional scholars should turn to the study of constitutions in  
developing nations to understand better what is going on here in the  
United States.

Miguel Schor
Associate Professor of Law
Suffolk University Law School
120 Tremont St.
Boston, MA 02108
617-305-6244
SSRN Webpage http://ssrn.com/author=469730


On Jul 11, 2007, at 4:28 PM, Gordon Silverstein wrote:

> Bush has now "ordered" Harriet Miers to refuse to appear before
> Congressional Committee and to ignore the subpeona, arguing she has
> unqualified and total immunity from congressional investigations.
>
> That's a constitutional confrontation of the first order, to be  
> sure. But
> ... imagine if Miers had been confirmed to the Supreme Court?
>
> Congress would be issuing a subpeona to a sitting Supreme Court  
> Justice who
> would be under "orders" from the President to refuse to testify,  
> generating
> a sure-fire Supreme Court test of the powers of congressional  
> committees to
> compel testimony ... the perfect storm of separation of powers
> confrontations .....
>
>
>
> July 11, 2007
> Miers Will Not Appear Before Committee, Lawyer Says
> By THE ASSOCIATED PRESS
>
> Filed at 4:05 p.m. ET
>
> WASHINGTON (AP) -- President Bush ordered his former White House  
> counsel,
> Harriet Miers, to defy a congressional subpoena and refuse to testify
> Thursday before a House panel investigating U.S. attorney firings.
>
> ''Ms. Miers has absolute immunity from compelled congressional  
> testimony as
> to matters occurring while she was a senior adviser to the  
> president,''
> White House Counsel Fred Fielding wrote in a letter to Miers'  
> lawyer, George
> T. Manning.
>
> Manning, in turn, notified committee chairman John Conyers, D- 
> Mich., that
> Miers would not show up Thursday to answer questions about the  
> White House
> role in the firings of eight federal prosecutors over the winter.
>
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Miguel Schor
Associate Professor of Law
Suffolk University Law School
120 Tremont St.
Boston, MA 02108
617-305-6244
SSRN Webpage http://ssrn.com/author=469730



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