The limits of crying “power play”

This column by David Broder is the latest to accuse President Bush of a “power play” in connection with the NSA intercept program. To his credit, Broder abstains from comparing Bush to King George III and avoids the use of the word “breathtaking.” But otherwise his piece displays the same superficiality as similar efforts by Andrew Sullivan and others.
The underlying fallacy in pieces like Broder’s is the failure to recognize that when the executive and legislative branches have a dispute over which branch has what power, both sides are asserting their power. To accuse the president of a power play is to assume the answer to the key question of which branch really has the power at issue. Typically, that question is difficult and unsettled by law. In my view (but not John’s) that’s the case with the intercept program because (to oversimplify) the president arguably is acting within his authority when he has the NSA monitor the phone calls of our enemies during wartime, but Congress arguably is acting within its authority when it passes legislation to protect the privacy of citizens.
When the question of which branch has what power is close, neither branch is engaging in a power play in any bad sense when it asserts the power at issue. And even when the question is not close, accusing the other side of a power play is inappropriate until one has done the hard work of demonstrating one’s case under the Constitution — something the Broders and the Sullivans rarely get around to doing.
One final point. Disputes about the respective authority of the executive and legislative branches typically end up before the judicial branch. At that point, the possibility exists that the judiciary will indulge in a power play. For example, if the judiciary insists on judicial involvement and/or process that the Constitution (correctly construed) doesn’t require, it has engaged in a power play. More generally, every time a court incorrectly strikes down a statute as unconstitutional, it can be said to have engaged in a power play. This is no less true merely because the court may have the last word. Indeed, the fact that courts are thought to have the last word can be viewed as the result of a successful power play.

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