Anthony Lewis, the distinguished former New York Times columnist, writes today about the responsibility of the Supreme Court to check the president's power as commander-in-chief. He says:
The framers of the Constitution, when they met in Philadelphia in 1787, feared concentrated power. In constructing a new federal government, they divided its powers among three branches: legislative, executive, judicial. The idea, as Madison explained, was that if one branch overreached, another would check it.
The Bush administration has often resisted checks on executive branch decisions taken under the heading of war power. In memorandums in 2002 and 2003 on the torture of prisoners, for example, the administration argued that the president could order the use of torture even if it was forbidden by treaty or by Congressional statute.
When those memorandums leaked out last year, the administration withdrew them. But Alberto Gonzales, who as White House counsel rejected objections to them, is now attorney general. And one of their principal authors, John Yoo, now a law professor at the University of California, Berkeley, continues to argue forcefully for dominant presidential power. To hear him tell it, the framers constructed a political system on the model of King George III.
Lewis notes that the Supreme Court has rejected some of the Bush administration's claims of presidential authority, but he wonders--as all who care about the Constitution's carefully calibrated system of checks and balances should--how Chief Justice John Roberts and Harriet Miers, if she is confirmed to fill the vacancy created by Justice O'Connor's retirement, will vote in cases challenging presidential war powers.