You have probably seen news stories about the Supreme Court's decision late last month in Hamdan v. Rumsfeld rejecting the Bush administration's plan to try detainees at Guantanamo Bay before military commissions. The June 29 majority opinion by Justice Stevens (who won a Bronze Star as a Navy officer during World War II) held that the President's war powers do not allow him to ignore limits set by Congress on his authority to convene military courts. In Hamdan, as in previous Supreme Court decisions about Guantanamo Bay detainees, the Bush administration unsuccessfully argued that federal courts also have no business interfering with how the Executive Branch handles suspected terrorists.
What hasn't been covered in the news is the connection between the administration's notions of unchecked executive branch power to fight terror anywhere in the world and its unwillingness to follow the laws that protect the environment and public health. At the heart of that connection is a vision of our government and the constitutional framework within which it functions.
Although the Bush administration has given lots of lip service to the idea of limited government -- suggesting that Congress lacks constitutional authority to protect isolated wetlands through the Clean Water Act, for example -- it has pursued a very different private agenda: expanding the powers of the President at the expense of Congress, the courts and, ultimately, American citizens in a way that breaks new constitutional ground. That agenda has been referred to as the "New Paradigm," a phrase used in a memo by Alberto Gonzales, who was then White House Counsel to President Bush, to describe the shift intended. (Those interested in learning more about where the New Paradigm came from should read Jane Mayer's profile of David Addington, Vice-President Cheney's chief of staff, in the July 3 issue of The New Yorker.)
The events of September 2001 are often offered as the justification for an executive branch of sweeping power, but the agenda has really been driven by a long-standing desire to enlarge the President's power in general. Vice President Cheney, a mainstay of the New Paradigm, said in December that: "Watergate and a lot of the things around Watergate and Vietnam, both during the 1970s, served, I think, to erode the authority ... the president needs to be effective, especially in the national security area," Those of you old enough may recall President Nixon's claim to have the inherent power as President to spy on "enemies" like Daniel Ellsberg. According to Cheney, Nixon had it right.
The New Paradigm's heady vision that the White House is America's government rather than just one part of it is a recipe for abuse. According to the New Paradigm, the President is free to disregard what Congress or federal courts may say about what's legal if, in his judgment, that would hinder the fight against terror or some other function he deems his. And President Bush is also free, of course, to keep that disregard secret from the public who elected him.
As Vice President Cheney's remarks make plain, the scope of the New Paradigm's ambitions are not confined to the military affairs. President Bush has, for example, also made unprecedented use of "signing statements" to accompany his signature on legislation that reinterpret those laws or announce the extent to which he intends to comply with them. Those assertions of executive branch power to make and interpret law, and to disregard it, have involved affirmative action, the qualifications of appointed officials, restrictions on the use of Congressionally appropriated funds and the disclosure of information to Congress and the public. So far, none has concerned the environment.
The tenets of the New Paradigm are fundamentally at odds with the rule of law, which holds that even the government is subject to the rules, and that there are limits on its discretion to do whatever it likes. The rule of law is embodied in our constitution's separation of government structure into legislative, judicial, and executive functions. In 1788, James Madison defended that separation of powers by observing that: "The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or may, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny."
The constitutional system of checks and balances was intended to prevent the incremental accumulation of such power by any branch of government, even where the nation may stand in great peril. The Bush administration has played heavily on crisis themes to sell the idea that the country must follow the President. In the Hamdan case, Justice Breyer's concurring opinion squarely refutes the proposition that the President needs expansive powers to act unilaterally in times of danger: "Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation's ability to deal with danger. To the contrary, that insistence strengthens the Nation's ability to determine -- through democratic means -- how best to do so. The Constitution places its faith in those democratic means. Our Court today simply does the same." I doubt that the Bush administration will heed to that rebuke.
What has this got to do with the environment? The Bush administration is no more willing to be bound by congressional priorities and limits respecting environmental policy than those affecting international affairs or national security. But lacking a mandate akin to the President's constitutional role as Commander in Chief, the White House has been much more guarded about announcing its ambitions. And less aggressive in staring Congress down. The underlying agenda, however, is the same. As are the abuses. The Hamdan decision is also a reminder that the judicial system may offer the only way to tell the President "no" on the New Paradigm. Congress ultimately backed down, but not the Supreme Court.
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