CREEPING TYRANNY
Updated Sunday, February 03, 2008 07:00 PM
There are always steps by politicians, elected leaders, lawyers, and about everybody else to thwart some part of the United States Constitution. There have be struggles on the nature, restraints, interpretation, application, and general use of Constitutional principles from the first days the Constitution became the Law of the Land. The concept of Appellate Review by the Courts is not a part of the Constitution, as an example, but turned out to be important in both keeping it in force, and allowing those 18th century principles and procedures to apply over the years.
This page is a partial list of major attacks involving political patronage, i.e., Executive Appointments on accepted Constitutional principles. We try to provide at least a couple of points of perspective on each issue, including some background and some references for study. You can add an opinion to these issues by sending it to Director@Presidential-Appointments.org - the usual rules of common courtesy apply to such offerings - and they will be posted here.
Issue: Should United States Attorneys be subject to confirmation by the United States Senate?
When the Patriot Act was amended and passed through the Congress in 2007, a small addition changed the law to allow the President to appoint United States Attorneys without submitting them to the United States Senate for Confirmation. (Considering comments of those in both Houses of Congress who said they didn't read the bill - it is worth being slightly nervous about the future of the country in general.) Anyhow:
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The President can now appoint United States Attorneys across the country without submitting them to the Senate for confirmation.
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Generally, any US Attorney appointment had heavy input from the Senators from the District where the appointment arises. He could enforce his political muscle by blocking any appointment of the President when it came up for confirmation in the Senate. Senators are a privilege driven crowd and will not give up this power to block unfriendly appointments easily.
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The President could always terminate United States Attorneys without cause, they are solid political appointments.
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United States Attorneys routinely offer their resignations at the end of each term of the President.
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There is general consensus that United States Attorneys have enormous discretionary power over what persons or organizations they sue on a civil basis, or prosecute on a criminal basis - opening the door for plenty of partisan abuse, with or without Senate approval.
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US Attorney offices are staffed by civil servants - both lawyers and general staff, and offer some sort of buffering to idiot decisions of overly political or vengeful US Attorneys.
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Grand Juries issues indictments in the federal system. This helps stabilize criminal cases against political abuse in many situations.
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About 20 of these appointments have been made across the country - causing plenty of controversy by individuals and groups that oppose the new policy.
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A Practical Political View: This law is going to be a lot less fun for the conservative movement which put this law into place if there is a Democrat, or unfriendly Republican, elected in 2008 when all of the US Attorney jobs will be up for grabs with the change of administrations.
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Theoretical basis for the Patriot Act change: In a time of national emergency when it is possible that many US Attorneys might be killed or otherwise out of business - having US attorneys in place quickly might be important to reestablishing stability in the legal structure.
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Prognosis: The confirmation practice will be put back in place - may take awhile, but nobody but the President and the Attorney General seem to like the new procedures.
Bills have been introduced in both houses of Congress to correct this situation. It will be a close call because of the narrow margins held by the Democrats in both Houses. The President has to veto such a bill if it passes both Houses. He has not been a vetoing President, but until now, has had it his own way with GOP controlled Houses which gave him what he generally wanted.
Our Editorial View on the Issue of United States Attorneys
Creeping Tyranny: The last Session of Congress passed a little noticed amendment to the Patriot Act which, in impact, authorizes the President to dismiss United States Attorneys without cause, then appoint his choice without Senate confirmation. By early 2007, a substantial number of those appointments have been made - without Senate approval - or disapproval.
Confirmation of US Attorneys was put into the law to limit the power of the White House to select US Attorneys to manage particular cases or causes. Needless to say, when the President can bypass Senate review on the senior prosecutors in the country, enormous opportunities for abuse exist. This statutory sample of the "checks and balances" process failing can correctly be called "creeping tyranny."
New legislation to reestablish the confirmation requirement has been introduced and may well be passed by the Congress controlled by the Democrats, although President Bush could easily veto that bill. Eventually, it will be passed and until then, the US Attorney's will be under close scrutiny.
By custom, the Senators from states where US Attorney and Federal Judge appointments are being made have high influence in confirmation proceedings in the Senate. Those Senators will be eager, regardless of party, to regain that power. But it is the political conflict between the Executive and the Congress that works to the service of the citizen because agendas are examined and important information about candidates made public.
Through all of US history - and all history in general - people in power have moved to enhance their power. It is part of the territorial imperative that this should be so - and it is part of the civilizing process that the conflict between various powers be regulated. In the US, we do that through the elaborate checks and balances built into the Constitution and subsequent laws.
The Bush Administration, partly through the struggles of war - and partly through the forces of overpaid and over energetic seeking of power - has often failed to genuinely provide their services On Behalf of the People.