A Subtle Shift (Like Going From Fifth Gear To First)

Andy McCarthy over at the NRO has given up on the idea of the all-powerful "plenary executive" because after all, a Democrat is in charge.  No, he's no longer arguing that the President can do whatever he wants on declaring enemy combatants.  He's now arguing that the judicial branch has no power to stop the President from doing whatever he wants on enemy combantants (in fact he says that that the judicial branch has no jurisdiction over detainees whatsoever) to the point where we have a Constitutional Crisis(tm) on our hands.

First, there is the matter of the ongoing constitutional crisis that, as al-Qaeda’s attempted Christmas Day attack amply demonstrates, is now endangering our nation. The Constitution gives the political branches plenary responsibility for the conduct of war. The conduct of war includes the detention, trial, or release of enemy combatants. The federal courts have no role except the one they have usurped. This brazen power grab flouts the bedrock constitutional separation of powers, and the political branches do not have to abide it. Indeed, as national defense is their chief responsibility, it is their duty not to abide it.

Writing for the Supreme Court in Chicago & Southern Air Lines v. Waterman S.S. Corp. (1948), Justice Robert Jackson, whom Attorney General Holder claims as a role model, explained that, because matters related to national defense are the most important ones, the Framers ensured that there would be political accountability for the officials making security decisions. As he put it, such decisions are

wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.

When courts illegitimately claim authority over these matters, and the political branches let them get away with it, it means our most vital political decisions are being made by unaccountable, non-political officials. The American people cannot remove judges when they get these vital questions wrong. This undermines the separation of powers and imperils our constitutional system, which is designed to protect popular self-government — not to usher in judicial oligarchy.

So we're back to the same boring old argument that any time the federal judicial branch does something that the wingnuts don't like, it's done by...and say it with me now..."activist judges".  The judicial of course is only an issue when they make rulings that the wingers don't like.  Now, McCarthy can't support the Obama administration on executive privilege any more than he can shoot down the idea of it, so the battle now becomes the judicial has no power to tell the Obama administration what to do on detainees.  It's subtle like I said, much like naming your bazooka Francine instead of Shirley when you use it to kill fish by blowing them out of the water, but it's a notable difference in the usual Wingnut attack pattern.

The practical upshot is that since the Obama administration won't play the plenary executive card, Congress must do so (as McCarthy anticipates a Republican Congress in 2010 in his little dream world.)  In other words, he's setting that stage for the argument that the Republican Congress has full control over detainees, and that the judicial (and eventually Obama) has no authority.

Oh yes, the plenary executive argument will become a full-fledged Constitutional Crisis as soon as Republicans take over Congress.  McCarthy's putting his chips on the board now.

I do so hope the Double G gets a hold of this one.