posted by Damozel | Continuing the subject of the practices and policies that make the Bush Administration special, Jack Balkin discusses the use of "constitutional hardball" within the Bush Administration.
Mark Tushnet coined the term "constitutional hardball" to describe practices that seem to transcend settled expectations of what is permissible within the constitutional order. Defenders of hardball tactics claim that they are doing nothing illegal or unconstitutional-- at most they are pushing the envelope or working in areas where questions of legality are unsettled-- while their detractors argue that they are blatantly subverting legal and constitutional norms....For the past seven years we've been witnessing various acts of constitutional hardball from the Bush Administration. But the meaning of these hardball tactics has changed as the fortunes of the Administration have waxed and waned.(Balkinization)
Balkin---whose formulation seems to differ slightly from the originator's---says that "constitutional hardball" has been used by the Bush Administration at three stages for three distinct purposes: (1) to gain power; (2) to transform the government into a new constitutional order; and (3) to head off accountability following the failure of the attempt. (Balkin provides examples of the game at each stage.
We're now in the third round, Balkin says. The reason for this is that the second round "did not take."
He was not able to create a new constitutional regime that would maintain his party in a dominant position for the foreseeable future. He was not able to bootstrap actions of dubious legality into widespread acceptance and thus enjoy the benefits of winner's history and winner's constitutions. Instead, things are now crumbling about him and there is a very significant chance that his party will suffer for his miscalculations during the next few election cycles.
At this point in Bush's Presidency three things matter above all others. They motivate this final round of constitutional hardball: The first is keeping secret what the President and his advisers have done. The second is running out the clock to prevent any significant dismantling of his policies until his term ends. The third is doing whatever he can proactively to ensure that later governments do not hold him or his associates accountable for any acts of constitutional hardball or other illegalities practiced during his term in office. (Balkinization)
Jack Balkin, Constitutional Hardball in the Bush Administration (Balkinization)
Mark Tushnet, Constitutional Hardball (Tushnet)
RELATED BNP:
How Secretive is the Bush Administration Really? (Glenn Greenwald vs. Fred Hiatt)
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