RELEVANT, AND NOT

This article by Josh Marshall shows why the genre of the editorial, informed by good journalism, is still relevant.

This post shows why parables are still relevant. Surprisingly, perhaps, it makes much of the same argument as Marshall's piece.

This story shows why Joseph Heller is still relevant.

And everything going on at the Corner this week (and more surprisingly, No Left Turns -- those folks are usually more level-headed) shows movement conservatives verging on irrelevance. You don't have to agree with the administration's critics to wonder whether memos supporting torture might be worth some thought. Instead, we get a more aggressive version of this week's wall-to-wall television coverage of Reagan.

Nothing against state funerals, but this one is a bit too imperial for my taste. I'll wait for Carter's funeral to brave the tourist lines and pay my respects, may that day come a long time from now. (And at any rate, one of my toes snapped like a piece of dried-up bamboo yesterday when I "took on a wall," as my doctor put it, so standing in line for three hours strikes me as singularly unattractive.)

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PS: The folks at Southern Appeal? Relevant. Relevant. Relevant.

For what it's worth: my thinking on the issue so far is as follows. There is a level at which executive power is unlimited, and to the extent that the DOJ lawyers were attempting to reach that point in their argument, they have a certain kind of point. But that point is very, very limited, much more limited than the kind of argument they seem to have been trying to make.

Under certain hypothetical -- and almost unimaginably bad and unattractive -- conditions, the President should take account emergency situations and act accordingly. Several very important factors limit this power even there, though: first, the President should be constitutionally virtuous enough to face that situation squarely and in public, and to offer a constitutional defense of his or her actions. Lincoln set the pattern here, and the Republicans, as self-acknowledged heirs of Lincoln, should take Lincoln's example into account. (The circumstances surrounding the memo certainly do not indicate that the executive is willing to submit to the requisite publicity.) Prof. Jack Balkin speaks of "political transparency" here, and I think he's right.

Second, and relatedly, the need for political transparency means that the congressional power of impeachment comes into play in emergency situations. Congress needs to have the authority to offer a public defense of its own understanding of the reach of presidential power. In this respect, we should be angry at Republicans (dare I say "Reagan Republicans?") for debasing the impeachment power with their witch hunt against Clinton. If the President is going to have even semi-acknowledged emergency powers, then Congress needs to safeguard its most significant constitutional weapon against a President gone too far.

Third, the fact of the national security state needs to be acknowledged in this discussion. Our current state form makes an expansion of executive power all the more worrisome. What we do not want is a bureaucratization of the emergency situation, but, unfortunately, this is precisely what the DOJ memo indicates. Talk about the conditions for a slippery slope leading into a very nasty abyss!

Finally, as Herman Belz argues with respect to Lincoln, to the extent that the President does act in an emergency situation in a way contrary to established rules of law, such action should never be thought of as a valid precedent in the ordinary meaning of the term. Here's Belz:

In the United States, whose government is based on a written constitution that has a definable meaning and is not completely flexible, measures that depart from existing constitutional rules in the face of necessity do not establish precedents for future departures, regrettable though they may be. Such measures do not prove, or require, that future actions cannot be made to conform to the constitution. This is not to deny that, at a later date and in a different political context, a controversial action or measure can be cited and used as a model for political action. It is obvious, however, that the individual whose action is subsequently taken as a political model has no control over this process of historical appropriation and cannot reasonably be held responsible for measures predicated on his example. To be specific, whether the historical appropriation of Lincoln's wartime measures as a model for subsequent presidential action is politically successful in conferring legitimacy depends on the nature, circumstances, and effect of the subsequent action. (Abraham Lincoln, Constitutionalism, and Equal Rights in the Civil War Era, 42)

Emergencies have to be viewed as unique events. The legal profession and other professional commentators should safeguard that idea. The DOJ memo seems to want to make a valid legal precedent out of emergency situations. That's dangerous.

These are tentative thoughts and I'm not sure what they're worth.