Activism vs. the Rule of Law

U.S. District Judge Anna Diggs Taylor, who has ruled that the
government's warrantless wiretapping program is unconstitutional

Bush says anti-wiretap ruling ignores reality

"Those who herald this decision simply do not understand the nature of the world in which we live," Bush told reporters at the presidential retreat in Camp David, Md. "This country of ours is at war and we must give those whose responsibility it is to protect the United States the tools necessary to protect this country in a time of war."

Does this administration believe that the courts should strictly construe the Constitution as the Founding Fathers would have, and leave legislating to the Congress, or does it believe that judges should at least on some occasions allow social factors to influence decisions that would then not be strictly, obviously or entirely based in Constitutional law?

This president has frequently espoused a philosophy that judicial appointments be limited to people who would not legislate from the bench. He has even applied that test to nominees for the US Supreme Court who, as Justices, not judges, have it in their job descriptions to be the final word on all federal laws, many state laws and what the US Constitution means in all contexts.

In his first public statement about court's finding that the NSA wiretapping program was unconstitutional, the president seemed to say not only that the country needs the program in its arsenal but that it is a matter about which there can be no informed doubt. Fair enough. That argument has been made about many matters of social policy before the courts, albeit from the other end of the political spectrum, and every court in the land has probably employed "reality"-based arguments to reach conclusions critics then deride as activist.

The president is entitled to appeal to common sense. To remain consistent, however, he needs to demonstrate how this time common sense is in keeping with original intent or at least the will of Congress.

But listen to the appeal. "... we must give ..." (emphasis added) the president powers commensurate with his awesome responsibilities. Is this a rhetorical slip, acknowledging that the powers he asserts are not inherent, but granted and therefore discretionary? Why ever deviate from a message which says that the Constitution grants the executive powers that no court or Congress can deny and take every opportunity to enumerate them? And why are these remarks directed to "thosw who herald this decision" rather than the court itself, if public opinion ought to have no bearing on what a bench hands down?

Should not the message of this president be -- and only be -- that he has power which he is duty bound to exercise on our behalf?

I am not sure that the sort of wiretapping in question is necessarily wrong, in part because so little is publicly known about it. But I also don't understand why 72 hours isn't enough time to play catch-up with the FISA court, since the administration's chief argument about not seeking warrants is the need for dexterity. If three days isn't always enough I'm sure Congress can be prevailed upon to extend that time to whatever over-taxed Justice Department lawyers need to comply and also eat and sleep and see their families.

But I have heard no cogent arguments that support the administration's basic contention that no oversight, or only internal oversight, is necessary and that in some instances any oversight would make the United States less safe. I am open to hearing one: I would like to be able to make up my mind on the merits, but until then it seems all I have to go on is the quality of the arguments on peripheral issues as evidence of what the parties actually believe.

So when the president appears to use an argument that he has in the past categorically rejected in other contexts, that is not a good omen.