PRESIDENTIAL WAR POWERS AND "STRICT CONSTRUCTION":

Over at Outside the Beltway, Jim Joyner has some doubts about the constitutionality of President Bush's attempts to go to war in Iraq without a Congressional declaration of war. But Jim thinks the war is a good idea, and since war powers have been migrating to the executive branch since the late eighteenth century, he argues that historical practice is on Bush's side.

Last week I posted my own thoughts on the immediate case that Jim is discussing, Doe v. Bush, which has now been heard at the circuit court level. I want to insist on a narrower point right now: Bush's stance here is in tension with his professed attachment to "strict construction." In fact, Bush's claims of broad executive powers here show the strategic nature of his constitutional arguments in the Estrada nominations battle as well.

At the very least, "strict construction" popularly is understood to mean that one should view the constitutional grants of power narrowly and seek to limit those arguments that would find broad grants of authority for the courts to expand constitutional rights to fit new situations. In reality, I guess, people say "strict construction" when they mean "anti-Roe v. Wade" or "anti-activist judges who use the due process clause of the 14th A to find so-called 'new rights.'" And if the argument didn't go beyond that, I suppose there's no real contradiction. The interpretive norm that would be applied according to this view of strict construction (certainly the view that people understood Bush to be aiming for when he was on the campaign trail) would be the following: the Constitution should not be read to require protection for the choice to abort. Perhaps more directly, this interpretive norm would mean: judges should be chosen according to whether or not they will rule in favor of abortion rights. If they would, then they are not "strict constructionists" and should thus be rejected as nominees to the federal bench. Any attempt to make a broader statement about Bush's approach to the Constitution as such would be misguided.

But we are certainly entitled to ask why strict construction should be a rule for interpretation when thinking about abortion rights (and about the judicial role with respect to abortion rights, and with respect to the rules that should govern the judicial nominations process) but not a rule when applied to executive powers. We know the answer, and the answer is politics: first comes a concern about abortion, or a concern about runaway "unelected judges," then everything else. Bush, after all, is the President, and he can be expected to push for as expansive a view as possible of executive powers. I realize that you can't expect a commitment to "strict construction" itself to do the work of prioritizing these commitments; the ranking comes partly from Bush's constitutional place, partly from party politics. And Bush's constitutional place is decisively determined by several factors that are a result of profound changes in the nature of executive and military power since 1787: a standing army, an increased role for the U.S. and for the U.S. military in world affairs, the development of political parties, and, more particularly, the reaction against congressional complaints against an imperial presidency (and Nixon). This is, however, precisely the point: approaches to constitutional interpretation are not conditioned by principles of constitutional interpretation in the first instance. Rather, the choice of approaches is determined by politics. And if the choice of an expansionist view of executive power is determined by one sort of politics, I see no good reason why a choice of an expansionist view of judicial power to enforce emerging rights claims shouldn't also be determined by another sort of politics. It's impossible to find a way out of this bare clash of political views within the terms of strict construction alone.

You might say that the executive and the judiciary have different constitutional roles, and that those roles require different approaches to the question of constitutional interpretive approaches. An expansionist president might make more sense than an expansionist judiciary because the president is electorally responsible to the populace in a way that judges are not. But this judgment is shaky: courts are also responsive to public opinion, albeit in more subtle and indirect ways (especially through shifts in judicial membership caused by shifts in party control). And the current partisan nominations deadlock shows another way that courts can be punished: through congressional inaction, which causes a shortage of personnel and a backlog of cases. This deadlock probably favors the status quo in ways that might be constitutionally defensible, but probably not in all cases (where, for example, due process rights are harmed through the inability of appellate courts to exercise effective review in criminal cases). And the idea that electoral accountability matters for choices of constitutional approaches is, itself, a pretty fancy theory that requires some work to defend.

The situation gets more confusing when you compare Bush's expansionist approach to the war powers with his (and Senate Republicans' and the Republican punditry's) insistence that the Senate minimize its role in the nominations process. According to Bush, the Senate is "shameful" if a minority party blocks the nominations process with a filibuster; Senate Republicans, as well as such luminaries as George Will and Rush Limbaugh, floated the argument that a filibuster in judicial nominations is unconstitutional. Now it seems to me that "strict construction" done by a dispassionate observer would find that the Senate is perfectly within its rights here: it has the constitutionally enumerated power to create its own rules. There might be some implied limitations on those rules, but they're not immediately obvious, and, as they say, if the framers had intended there to be more explicit limitations on the rules, they certainly could have spelled them out. The idea that a 2/3 majority is required for advice and consent for treaties (not a big winner nowadays anyways!) hardly implies that a supermajority is not permissible in other contexts. Again, a dispassionate strict constructionist, if he or she existed, would be hard pressed to make a consistent argument here. Unless you adopt a rule, as part of the idea of strict construction, along some line as the following: when discussing decision procedures, a bare majority is required unless a supermajority is explicitly required. For my money, I can't see how you can get to that rule without an argument that is bound to be "non-strict constructionist" and pretty fancy to boot.

But the pressure on the Senate to abandon the filibuster really comes from an expansionist concept of presidential power, combined with an idea about the presidential mandate and a mandate from 2002 for Republicans to put whomever they want on the court because they got a non-cloture proof majority in the Senate, combined also with a widespread critique of judicial power. All of these positions are certainly tenable. But the more you're forced to defend them, the farther you travel away from any principled defense of "strict construction," unless all the phrase means is "judges shouldn't be pro-choice, the executive should be strong, and the president's party in the Senate should basically defer to his judgment in judicial nominations." If that's all the phrase means -- which is really likely -- then it's just a controversial matter of political choices, not some sort of founder-inspired vision of the correct constitutional order.