Specter’s Defection & the Separation of Powers

Written by Robert Justin Lipkin on May 1st, 2009

There’s a conventional understanding of why Arlen Specter defected. Basically, he defected because the Republican Party is on the cusp of imploding. There different versions of this story, one in which Specter is a cowardly villain the other which blames the contraction of the Republican Party.  But suppose there’s another reason.  Suppose Specter believed some of the damage the former administration did to American constitutionalism needs to be reversed, and only a President with the constitutional acumen and moral sensibilities of Obama would conceivably be sympathetic to this rectification. Here’s the tease line:

In the seven and a half years since September 11, the United States has witnessed one of the greatest expansions of executive authority in its history, at the expense of the constitutionally mandated separation of powers. President Obama, as only the third sitting senator to be elected president in American history, and the first since John F. Kennedy, may be more likely to respect the separation of powers than President Bush was. But rather than put my faith in any president to restrain the executive branch, I intend to take several concrete steps, which I hope the new president will support.

What follows is a description of some of the more blatant assaults by the previous administration of the constitutional principle of “checks and balances.” (Though Specter’s fulsome emphasis on how important his own role in these matters was raises legitimate skepticism about his motives.) Here’s specter’s plan for the future.

These experiences have crystallized for me the need for Congress and the courts to reassert themselves in our system of checks and balances. The bills I have outlined are important steps in that process. Equally important is vigorous congressional oversight of the executive branch. This oversight must extend well beyond the problems of national security, especially as we cede more and more authority over our economy to government officials.

As for curbing executive branch excesses from within, I hope President Obama lives up to his campaign promise of change. His recent signing statements have not been encouraging. Adding to the feeling of déjà vu is TheWashington Post ‘s report that the new administration has reasserted the “state secrets” privilege to block lawsuits challenging controversial policies like warrantless wiretapping: “Obama has not only maintained the Bush administration approach, but [in one such case] the dispute has intensified.” Government lawyers are now asserting that the US Circuit Court in San Francisco, which is hearing the case, lacks authority to compel disclosure of secret documents, and are “warning” that the government might “spirit away” the material before the court can release it to the litigants. I doubt that the Democratic majority, which was so eager to decry expansions of executive authority under President Bush, will still be as interested in the problem with a Democratic president in office. I will continue the fight whatever happens.

I think (I hope) that Specter’s last remark misses the mark. Few Democrats, indeed, few Republicans, are as politically psychopathic as Bush-Cheney. They were egregiously insensitive about essential constitutional values and had no appreciation for the fundamental values rendering America, in aspiration if not always in practice, a progressive beacon for the twenty-first century.

The real action lies with how the Republican Party, without Specter, will reconstruct itself, as it surely will, to meet the challenges they face with the death of traditional and woefully ineffective laissez-faire economics along with their commitment to tyrannical social policies.

For a mournful account of the Republican Party’s turn to the exclusive ultra Right click here.

It’s not entirely clear why President Obama so gleefully welcomed Senator Specter to the Democratic Party. Wouldn’t it have been preferable for the Democrats to nominate an outstanding, young Democratic man or woman who could beat Specter, but more importantly, someone who could beat Toomey because Toomey surely would have beaten Specter? How does Specter’s defection to the Democratic Party benefit Democrats?


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