A Constitutional Disaster in the Works?

I suppose it's true that balance is an important thing to find in one's life. It's a shame that political balance so often needs to come not from finding truly balanced politics, but from spanning large boulders precariously across a fulcrum. I suppose this works, at least in as much as it's about all anyone can do, but it does occasionally yield some strikingly bizarre results. This post from ACSBlog, importing this AlterNet post by blockquote, is one of the most supremely silly things I can recall seeing recently. That AlterNet article, in turn, was apparently sparked by this Executive Order, which was written to establish "a comprehensive national policy on the continuity of Federal Government structures and operations and a single National Continuity Coordinator responsible for coordinating the development and implementation of Federal continuity policies." The AlterNet article apparently objected to a phrase in that order which declared that "[t]he President shall lead the activities of the Federal Government for ensuring constitutional government." At this point, I pretty much couldn't help but chuckle.

The AlterNet article goes on to pose the question, "What about the other two co-equal branches of government?" Well, what about them? Apparently, "an official designated by the Chief of Staff to the President shall ensure that the executive branch's COOP and COG policies in support of ECG efforts are appropriately coordinated with those of the legislative and judicial branches in order to ensure interoperability and allocate national assets efficiently to maintain a functioning Federal Government." In context, though, it seems readily apparent to me that the AlterNet article isn't asking about that, but rather, wants to know why the President should think that he (and he alone) feels that he is the one to "lead the activities of the Federal Government." Of course, the answer is that the President likely feels that way because the President is right.

Looking to those other co-equal branches, I'll start out with something easy and obvious: The judiciary does not "lead the ... Federal Government." Indeed, it must be said that, under the Constitutional scheme, the judiciary cannot exercise that kind of power. The power of the courts is a simple one to explain, they decide cases based on the law. In the face of a natural disaster, it's almost impossible that there could even be a case, for the simple reason that you cannot sue the planet. In the face of man made disaster, you may end up with a case eventually, but it isn't something that's going to happen right away; in particular, it isn't something that's going to happen quickly enough to do anyone any good. But even if, for the sake of argument, you could somehow get a case through court quickly enough to be useful, there's still not a lot that the judiciary could do. As Hamilton tells us in Federalist 78, "It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments." Even in the best of times, I would not look to the "weakest of the three departments of power" for leadership.

The harder question becomes, then, what of Congress? Unlike the judiciary, this isn't an entirely obvious question. Congress, of course, has probably got more power than any other branch in terms of shaping the operation of the government. By the power of Congress, courts may be established or destroyed, executive agencies may be created or dissolved, and laws which control both the common and unusual issues of the nation may be passed. Because it is ultimately they who direct the operation of government, it may fairly be said that Congress is normally responsible for leading the nation. But the very nature of the body makes them ill-suited for leading a crisis. At 535 members in total, the houses of Congress best serve as a large deliberative body, considering and deciding, within Constitutional bounds, on all of the various issues of the day. But as anyone who has worked in a team setting knows, large groups of people are good at expressing and evaluating a wide range of viewpoints, but they are rather bad at making a final decision quickly. And in the case of Congress, any final decision they make must be given to the President before it can take effect.

In looking at the above two branches, a couple of things become obvious. First, both the judiciary and the Congress are entirely dependent on the Executive to give force to their declarations. Second, and more importantly, the Executive is in the unique position of being able to make decisions quickly. Unlike Congress, the Executive needs only the decision of one person -- the President -- in order to make something happen. Unlike the judiciary, the Executive may make decisions pro-actively, and does not need to wait for a need to be presented to him. As Hamilton wrote in Federalist 74, "Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand. The direction of war implies the direction of the common strength; and the power of directing and employing the common strength, forms a usual and essential part in the definition of the executive authority." The same is no less true of any other situation besides war which requires fast and efficient decision making from its leadership, so this logic surely extends to such catastrophes as contemplated by the Executive Order.

The remainder of the AlterNet article is a fairly standard complaint against the concept of the unitary executive, offers nothing that cannot be found in the hundreds or thousands of nearly identical rants posted all over the internet, and requires no reply which cannot be found in similar volume. One other thing does deserve addressing, though, and that's the question in the head of the article which asks, "If a terrorist attack happens before the 2008 election, could Bush and Cheney use this to avoid relinquishing power to a successor administration?" The answer, of course, is found in the same line which the AlterNet article finds so troubling in the first place. The turnover of power is, by any measure I can think of, one of the "activities of the Federal Government" which is inherent to the "constitutional government," the continuance of which the "President shall ... ensur[e]." Far from running around like Chicken Little worried that the sky is falling, the author should take heart in knowing that whoever should win the presidency in the next election, regardless of party, President Bush has not only not said that he will prevent the leadership change from happening, but has said affirmatively that one of his duties is to ensure that it does.