Senator Specter's uncomfortable straddle

Senate Judiciary Committee Chairman Arlen Specter said today he's thinking of introducing legislation to cut off funding for the NSA's warrantless domestic eavesdropping program until the White House gives him satisfactory answers about it.

The senator said he has told President Bush that he is willing to introduce an amendment that cuts off the funds for the program and that his amendment already has several co-sponsors. Then he told reporters, "I'm not prepared to vote for it myself."

Huh?

Maybe this is how you get re-elected in Pennsylvania, but it's not terribly useful if you want to convince anyone that you mean what you say.

"Institutionally, the presidency is walking all over Congress at the moment," Senator Specter complained, with some understatement. "If we are to maintain our institutional prerogative, that [cutting off the funds] may be the only way we can do it."

Of course, it's a lot less effective if you don't vote for it.

The mystery is why Senator Specter doesn't use the power he has as Senate Judiciary Committee Chairman to subpoena the White House for the information he seeks.

This is not a trivial matter. The United States Congress has the constitutional power, and responsibility, to oversee the executive branch.

Without naming names, let's consider the hypothetical possibility that a president is acting illegally. Other than waiting for the next election, what can be done about it?

The courts can't jump in and stop him. They have to wait until someone presents them with a case to decide.

The federal law enforcement community can't jump in and stop him. They work for him.

The state legislatures can't jump in and stop him. They have no jurisdiction or control over the federal government's executive branch.

The press and public can't stop him. Individuals have the ability to expose wrongdoing, but the president has the power to send law enforcement after them to investigate crimes both real and imagined. That might be an illegal abuse of power, but then that's where we started this little exercise.

Can anyone stop him?

Congress can stop him.

The committee chairmen in the House and Senate can subpoena the executive branch for documents, for testimony, for anything they want to examine.

Congress is not optional equipment on the president's limousine. The members of the House and Senate are the elected representatives of the people of the United States. They control all federal spending, they have the power to impeach and remove the president, and they have the power to investigate without restriction in order to carry out those constitutional powers.

There is no such thing as executive privilege. It is a made-up concept that exists only when Congress chooses not to challenge it.

If a president breaks the law, exceeds his constitutional powers, violates constitutional rights, or withholds information in order to mislead Congress and the public, only the committee chairmen on Capitol Hill are in a position to do anything about it.

And if they don't want to go down in history as the cowardly lions who allowed the United States presidency to become a dictatorship, they'd better get to it.


Copyright 2006

Editor's note: Read more about it in Executive Privilege: A Constitutional Myth by Raoul Berger (1974, Harvard University Press). You might also be interested in these earlier posts: "Rep. Heather Wilson pries open the White House," "Senate Republicans fire the big gun," and "Mr. Rumsfeld's Mythical Privilege."


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