accountabilitybloke (old blog)

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High hypocrisy and low quality….

The concepts of “separation of powers” and “checks and balances” are “topics of the week” as the 111th Congress convenes and we get closer to the inauguration of Obama, and two pieces read over the past 48 hours indicate that we are in for an intellectually challenging rough time.

The OpEd piece by Bolton and Yoo in Sunday’s NYT is a classic example of neocon hypocrisy, for in the process of making the case for a renewed emphasis on “treaties” (as an explicit counter to the presidency-centered reliance on executive agreements and Congressional-executive agreements), these two gentleman seem to have rediscovered the value of our constitutional arrangements that they were actively interpreting out of existence while officials in the Bush Administration. This would be somewhat acceptable if we thought we were witnessing a recantation of past misdeeds and conversion to a more principled approach to constitutional law. Instead, it is clear that we have here a blatant effort to strategically resurrect a mechanism that can be used by the neocon-oriented (and very small) minority in the Senate to block US involvement in global arrangements to deal with a number of trans-national environmental, social and moral problems. It is not hypocritical for them to take such a stand, but rather to do so after having spent their entire tenure in the Bush Administration (and after) actively pursuing ways to circumvent international obligations that existing treaties (as well as agreements of all sorts) required of us. I hate to keep saying it, but talk about hypocritical….

Garrett Epps’ article in the most recent Atlantic does not suffer from hypocrisy, but rather from a superficial and oversimplified presentation of US constitutional and political history. Were it not for the author’s credentials, one would assume this is an example of the kind of “analysis” expected from a college freshman paper, informed mainly by high school textbook history and reflecting a bit too much History Channel viewing. It is not the kind of insightful work one expects from a law professor who has made his reputation on a detailed knowledge of the 14th Amendment. The bottom line argument is that the abuses of constitutional authority practiced by the Bush Administration were not to be blamed entirely on W, but also on the Framers of the Constitution who created a “flawed” institution. Using a hodge podge of historical anecdotes drawn from here and there, Epps makes an embarrassingly weak case (even for the Atlantic) for a bunch of reforms that seem naive at best. Is this the best he could do? Is this the best The Atlantic can do?

January 6th, 2009 Posted by | accountabilitybloke | no comments

Sunstein for Attorney General…and/or Justice of Supreme Court

The CEO model of the US presidency implied in the unitary executive theory has become so ingrained in our governance psyche that it clearly shapes the  rhetoric of campaigns such as the one we have just been through. I cringe whenever I hear the cliche of choosing between the lesser of two evils, but often that is the case when it comes to the presidency. Both candidates tend to play to the biggest base of them all: a public that is blindly committed to the idea that we have (and should have) a White House-centered system.

I suspect I am far from the typical “liberal” in my commitment to an “anti-unitary” theory of executive power — and a view of the American constitutional system as Article I (Congress) centered. Whatever might be owed to the heroic ideal fostered by the Roosevelt (TR as well as FDR) presidencies, the past 8 years demonstrate the wisdom of a more “conservative” notion of US governance. (Damn the labels!)

[Interestingly, the individual perhaps most responsible for pushing the unitary theory in practice, David Addington (he of the soon-to-be-history Dick Cheney regime) claims to “not know” what it is — unless you ask him the right way. See]

For all the rhetoric of the Obama platform and campaign that implies a belief and commitment to the CEO model, I found flashes of a real understanding in some of his comments during the race that give me some hope of a commitment to bring some sanity and balance back into the separation of powers. His most direct response to issues raised in this regard are found in December 2007 interview: (Also see

The other indication that Obama may bring the practice of executive power back in line is his (alleged) close relationship with Cass Sunstein — an brilliant scholar/lawyer who has (along with Lawrence Lessig, of “Code” fame) provided us with the clearest analysis of the theory and its problematics (see for Sunstein blog post on issue).

Which makes me think that Cass Sunstein would make one hell of an Attorney General — if not a great Supreme Court Justice.

November 5th, 2008 Posted by | accountabilitybloke | one comment