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Truthout

When Nancy Pelosi became Speaker of the House in 2006, one of the first things out of her mouth was “impeachment is off the table.” With this sentence she betrayed the American people and her oath of office. But that’s only scratching the surface of the problem…

We have witnessed a staggering abuse of power by President Bush. Even former Bush Justice Department officials now charge him with trampling the Constitution. Bush has claimed the prerogative to declare an endless war without congressional approval, to designate someone an enemy without cause, to proceed to wiretap them without warrant, arrest or kidnap them at will, jail them without a hearing, hold them indefinitely, interrogate them intensively (read torture), bring them to trial outside the U.S. court system. He claims that executive privilege exempts his aides – even the aides of his aides and his vice president’s aides – from congressional investigation. He claims the right to amend or negate congressional laws with a statement upon signing them. And much more.

The possible consequences of Pelosi’s colossal failure…

According to the leading case on presidential powers, if Bush’s extreme assertions of power are not challenged by the Congress, they end up not simply creating new law, they could end up rewriting the Constitution itself. Inaction can alter the Constitutional division of powers by establishing the president’s claims as authority that the Congress or the courts may not infringe. (Emphasis added)

Read that again.

Yeah, you read it right…

The Steel Seizure case – Youngstown Sheet and Tube v Sawyer, 343 U.S. 579 (1952), remains the leading case on presidential power. In Youngstown, a six-member majority of the Court joined in overturning President Truman’s executive order nationalizing the steel plants to end a strike during the Korean War.

What does this have to do with anything? First, read the pertinent parts of the opinions in the Youngstown case, by Justice Felix Frankfurter:

Deeply embedded traditional ways of conducting government cannot supplant the Constitution or legislation, but they give meaning to the words of a text or supply them. It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them. In short, a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part [343 U.S. 579, 611] of the structure of our government, may be treated as a gloss on “executive Power” vested in the President by 1 of Art. II. (Emphasis added)

Do you see where this is going?

Now, Justice Robert H. Jackson:

When the president acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law. When a president egregiously abuses his power – particularly in areas relating to the rights of American citizens – remedies are often difficult. The Supreme Court is reluctant to arbitrate a power struggle between two co-equal branches. That is why the Constitution prescribes the specific remedy of impeachment for crimes and abuses of power – “high crimes and misdemeanors” – and empowers the House and Senate to sit in judgment whether the actions are to be accepted or condemned. (Emphasis added)

So, if the President continually oversteps the boundaries of the Executive, making assertions of unilateral power, with full knowledge and no questioning by Congress — those assertions become a Constitutional power of the Executive, which cannot be challenged by Congress or the Courts.

The Judiciary Committee in the House should formally convene that inquest, no matter what the decision is on impeachment. For if Pelosi’s sensible political judgment results, as it has to date, in a show of congressional “inertia, indifference or quiescence,” the Democratic majority in Congress may have gained a dozen seats at the cost of relinquishing its own powers, and putting the rights of Americans at risk.

Is this an unintended consequence of Pelosi’s determination to gain a few Congressional seats in 2008? Has this possibility not been presented to her? She’s not stupid, and neither is Dick Cheney. He’s all for an extremely powerful Executive, and if Nancy doesn’t find herself a table — or if she’s not replaced — Cheney could succeed beyond his wildest dreams.