Constitutional Crisis

As more time passes in the wake of the NSA revelation, the more I become convinced that we are in a real Constitutional crisis. The Executive Branch is not only making claims to, but actually seizing, unjustified powers, and Congress must no longer ignore the claims of executive superiority.

The blogger Glenn Greenwald has done us all a service by clearly articulating why the current claims of Executive authority are completely at odds with the founding principles of our nation. He brings both historical perspective and plentiful quotes from the Federalist Papers to support his case. It is a must-read.

It cannot be said that the Founders were unaware of the potential for national emergencies and external threats. They engaged in a war with the British which was at least as much of an existential threat to the Republic as those posed by 9/11 and related threats of Islamic extremism. Notwithstanding those threats, the Founders, in creating an Executive branch, sought first and foremost to ensure that the President could never wield unchecked powers which would exist above and separate from Congressionally enacted laws. ...
To the Founders, the defining characteristics of the tyrannical British King was that he possessed precisely those powers which the Constitution prohibits but which the Bush Administration is now claiming it can exercise. From Federalist 70:

In England, the king is a perpetual magistrate; and it is a maxim which has obtained for the sake of the public peace, that he is unaccountable for his administration, and his person sacred.

Based on the fear of such unchecked executive power, Federalist 69 emphasized that unlike the British King, who did possess the absolute power to nullify duly enacted laws , the sole power possessed by the President to negate a law enacted by the Congress -- including with regard to matters of national security and war -- is the President’s qualified (i.e., override-able) veto power:

Hence it appears that, except as to the concurrent authority of the President in the article of treaties, it would be difficult to determine whether that magistrate would, in the aggregate, possess more or less power than the Governor of New York. And it appears yet more unequivocally, that there is no pretense for the parallel which has been attempted between him and the king of Great Britain. . . .

The one [the American President] would have a qualified negative upon the acts of the legislative body; the other [the British King] has an absolute negative. The one would have a right to command the military and naval forces of the nation; the other, in addition to this right, possesses that of declaring war, and of raising and regulating fleets and armies by his own authority.

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This administration has claimed the authority to listen to our telephone conversations, secretly enter and search our homes and businesses, pick us up off the street and take us to an unknown place of detention, keep us from legal counsel, file no charges, interrogate us using techniques that most would call torture, and hold us there indefinitely, with no oversight or impediment.

It is inconceivable to me that this is what the Founders had in mind.