Constitutional Capers

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Bush Administration

David Johnston and Eric Lipton write for the New York Times,

The Justice Department’s inspector general has prepared a scathing report criticizing how the F.B.I. uses a form of administrative subpoena to obtain thousands of telephone, business and financial records without prior judicial approval.

The report, expected to be issued on Friday, says that the bureau lacks sufficient controls to make sure the subpoenas, which do not require a judge’s prior approval, are properly issued and that it does not follow even some of the rules it does have.

Under the USA Patriot Act, the bureau each year has issued more than 20,000 of the national security letters, as the demands for information are known. The report is said to conclude that the program lacks effective management, monitoring and reporting procedures, officials who have been briefed on its contents said.

Details of the report emerged on Thursday as Attorney General Alberto R. Gonzales and other officials struggled to tamp down a Congressional uproar over another issue, the ousters of eight United States attorneys.

For the best analysis of what the FBI has been doing, you must read Glenn Greenwald.

Several Republicans have expressed disapproval of Gonzales and his, um, cavalier reading of the Constitution in recent days, Johnston and Lipton write. But other Republicans have separate constitutional issues.

For example, Congressman John Shadegg has introduced an Enumerated Powers Act. As I understand it, this act would require that every bill passed by Congress cite the specific part of the Constitution that gives Congress authority to do the thing it wants to do in the bill.

Which leads me to a vital question — what part of the Constitution gives Congress the authority to require that every bill passed by Congress cite the specific part of the Constitution that gives Congress authority to do the thing it wants to do in the bill? Hmmm?

If Congress took this seriously and made it retroactive it would mean the end of the Center for Disease Control (nothing about controlling disease in the Constitution), not to mention paper money. Although I’m all in favor of the government sticking to enumerated powers (especially war powers), if they were to start getting anally literal about it, the federal government would be rendered effectively inoperative. We’d have an 18th-century government in the 21st century. And the terrorists will have won. Or something. I suggest Shadegg’s bill amounts to a can of worms. On the other hand, if the President were to have to play by the same rules … let me think about that …

Meanwhile, although the Right Blogosphere has had little to say about the FBI’s unconstitutional abuse of power, they’re gleeful about an appeals court decision that struck down a District of Columbia gun control law. Eugene Volokh seems to think this decision, which upholds an individual rather than a collective right to keep and bear arms, will impact the 2008 elections somehow.

I doubt it. The Democrats have pretty much conceded gun control, especially as it pertains to an individual’s right to keep a firearm in his house, which is (I believe) what the DC law was about. The only gun control laws anyone seems to care about — and even then, not much — are the sort of laws that might prevent a schizophrenic Islamofascist with a felony record from buying a truckload of assault weapons at a gun show without having to submit to a background check. And even that seems like small potatoes compared to what the FBI is doing.

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6 Comments

6 Comments

  1. No More Mr. Nice Guy!  •  Mar 9, 2007 @6:26 pm

    Actually, if I recall correctly, the Bush regime and the North American Man-Gun Love association have both come out in support of the right of terrorists to acquire guns anonymously and untraceably – including heavy caliber sniper rifles that can bring down a passenger aircraft.

    http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2004/09/11/MNGO68N6P91.DTL
    http://www.therationalradical.com/dsep/1201/ashcroft-gun.htm

  2. maha  •  Mar 9, 2007 @7:44 pm

    Guy: Some of us liberals still mildly object to schizophrenic Islamofascists with felony records buying truckloads of assault weapons at a gun shows without having to submit to a background check. This is proof that we hate America.

  3. QrazyQat  •  Mar 9, 2007 @8:01 pm

    Congressman John Shadegg needs to read the Consitution, specifically Article One, Section Eight: “To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.”

  4. Swami  •  Mar 9, 2007 @10:11 pm

    I guess I’m just one of those black and white thinkers, because to even be discussing the Constitution seems to me to be a waste of time and mental energy. Bush has made such a mockery of the Constitution that it no longer holds any value in my mind. It’s become an anchorless document that deceives men into believeing they have a security and some rights that doesn’t really exist.
    Look at Jose Padilla…can anybody reconcile his supposed constitutional rights with those articulated in the Bill of Rights as a guarantee to all citizens? I don’t think so. I have no guarantee of rights, the best I have is the guarantee of chance.
    Maybe hopefully when we get our next president our constitution will be something that I can believe in, and trust that it means what it says.

    I hate to be a stick in the mud, but just thinking about the abuse Bush has subjected our nation to bums me out.. Bush has dragged our goverment back into the dark ages.

  5. Publicus  •  Mar 10, 2007 @1:32 pm

    My politics is liberal, but I think that the Constitution grants the federal government ONLY the powers cited in that document. (The rest are reserved for the people or the states) That said, there are still gray areas.

    I think guns SHOULD be controlled, but that the states ought to be doing it. I also would support an amendment to the federal constitution granting the federal government the right to certain types of gun control.

  6. maha  •  Mar 10, 2007 @2:30 pm

    My politics is liberal, but I think that the Constitution grants the federal government ONLY the powers cited in that document. (The rest are reserved for the people or the states) That said, there are still gray areas.

    I think we need to make a distinction between “powers” and “functions.” When I write about getting anally literal, I’m talking about people who think that if a particular issue isn’t specifically mentioned in in the Constitution, then the federal government can’t address it. Disease control and public health is a good example. Along with the Center for Disease Control, the federal government performs a ton of functions having to do with public health; meat inspectors come to mind. Come to think of it, the Constitution doesn’t mention “meat.” Hmm.

    The Constitution doesn’t specifically enumerate public health matters in part because “public health” was an unimaginable issue to the authors. (Germs? What are germs?)

    That’s just one example. If one were to sit down and think about it, one could probably come up with hundreds of examples in a single afternoon. And if we were to have gone through the amenment process every time a new issue came up that the federal government needed to address, the number of amendments to the Constitution by now easily would run into the tens of thousands. We probably would have chucked the Constitution and written a new one. In fact, we’d probably be on the fifth or sixth Constitution by now.

    Over the years, experience and case law have interpreted the enumerated powers in a very broad and general, and some may say imaginative, way, and this arrangement seems to be generally workable. And under this arrangement, the states and the feds seem to have a general understandng of who can do what. As long as that’s the case, I say leave it alone.

    Every now and then a federal law is found to be unconstitutional on the grounds that the feds have exceeded their authority. Sometimes the courts have a problem deciding whether state or federal law applies in a particular situation (remember Bush v. Gore?). So it ain’t perfect. But it’s workable. (Our real crisis at the moment is the way the Bush Administration has corrupted separation of powers at the federal level.)

    The kind of anal reading the extreme constitutional purists want to give the Constitution would, IMO, render our government inoperative and unable to carry out most of the functions we need it to do. It’s a can of worms we would do well not to open.



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