Executive Discretion and Congressional Indecision

by Roger Alford

Professor Ken Anderson has an interesting short piece in the New York Times magazine. He argues that regardless of your political persuasion, there is merit in having counterterrorism policy made through Congressional legislation.

Irrespective of where you come down in the debate on the war on terror — including whether it should even be conceived of as a war — counterterrorism policy should be formed through Congressional legislation, the only legitimate mechanism for the long haul in a democracy. This ought to be a priority for both Congress and the Bush administration, because no matter who wins the 2008 election — or the 2006 midterms — there is not likely to be any coherent national counterterrorism policy at all past the end of the second Bush administration unless Congress takes steps to legislate it and go beyond merely executive discretion.

Some in the Bush administration have fixated on this question of executive discretion, insisting that the successful prosecution of the war on terror requires strong executive power — power they see as eroding since Watergate. But in considering its next move, the Bush administration should mark well that what lives by executive discretion also dies by executive discretion. If a comprehensive national counterterrorism policy — that is, a war on terror — is as important as the White House believes it is, then it merits the blessing of the legislature and ought not to exist merely at the discretionary whim of some future president.

On the eve of midterm elections that could reverse Republican control of at least one house of Congress, (see here, here and here) one would think that this would be a particularly propitious time for the Bush Administration to work with Congress along the lines Anderson is suggesting.


One Response

  1. Roger, thanks for posting this note on my NYTM piece. Marty Lederman makes a comment on it here, on my blog. Space constraints in the magazine made it a very short piece – felt like I spent the summer writing a haiku for the NYT! – but I will be publishing a longer version in Policy Review before the November elections.

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