A Step Away From the Imperial Presidency

The New York Times
A Step Away From the Imperial Presidency

The Democratic Congress has yet to muster the votes or courage to repeal a series of noxious measures — rubber-stamped by the previous Republican majority — that pushed presidential power to dangerous extremes in the name of fighting terrorism. In a disappointing showdown earlier this month, Senate Republicans blocked an effort to reverse one of the most ignominious aspects of last year’s Military Commissions Act — the suspension of the right of habeas corpus to block foreign detainees from challenging their imprisonment in federal courts.

Fortunately, the prospects are better for undoing a lesser-known example of presidential overreaching. The defense budget bill heading for Senate passage contains a bipartisan measure to repeal wording that made it easier for a president to override local control of the National Guard and declare martial law. That language was slipped into last year’s defense bill.

The revision is sponsored by Senators Patrick Leahy, Democrat of Vermont, and Christopher Bond, Republican of Missouri, and is backed unanimously by the nation’s governors. It repeals a major weakening of two protective doctrines of liberty. One of them, called posse comitatus, was enacted after the Civil War to bar military forces, including a federalized National Guard, from engaging in domestic law enforcement.

The other, the Insurrection Act of 1807, long contained a limited exception to posse comitatus for putting down lawlessness, insurrection and rebellion, where a state is violating federal law or depriving people of constitutional rights. Under last year’s revision, the exception was unnecessarily broadened to allow the president to use military troops as a domestic police force in response to a natural disaster, a disease outbreak, terrorist attack or to any “other condition.”

In June, Congress reversed its acquiescence to another sneaky rider designed to bypass Senate confirmation of the administration’s choices for U.S. attorney jobs. If this defense bill is enacted, that will make at least two instances where Congress has lived up to its duty to rescind excessive power grants to the Bush White House.

For democracy’s sake, there will need to be many more.