Wednesday, May 31, 2006
# Posted 10:50 PM by Ariel David Adesnik
However, there is one OxBlogger who need not dream of such things. Josh Chafetz, our erstwhile colleague and author of a whole damn book on parliamentary privilege, argues in TNR that the constitution actually does forbid executive agencies from searching legislative offices. As I understand it, the essence of his argument is as follows:
In fact, the Speech or Debate Clause of the Constitution should be interpreted to prohibit searches like these. To allow such searches undermines the independence that the clause is meant to secure for Congress...I do recommend that you read the whole of Josh's article, since this summary does not do it justice.
For an opposing perspective, I recommend this essay in Slate by Akhil Reed Amar, a professor at Yale Law School whom Josh knows quite well. (Hat tip: WB) Amar argues that:
The [Speech and Debate] clause does not insulate sitting Congress members from ordinary criminal arrest and prosecution. No arrest-immunity exists whenever a congressman stands accused of "Treason, Felony, [or] Breach of the Peace"—and the last phrase was, according to the canonical jurist William Blackstone, a catchall term of art that effectively covered all crimes...So who is right? As I said, this one is way over my head. What I can say is that Josh's essay brings forward a lot of evidence that Amar's essay does not address (and vice versa, to a certain extent). Of course, Prof. Amar may have a ready response to such points but did not see fit to include them in his essay.
But I wouldn't be so sure, since Prof. Amar knows what a formidable scholar Dr. Chafetz is. On the back cover of Josh's book, this is what Prof. Amar had to say:
This book heralds the arrival of an important new scholar in the fields of comparative constitutional law and legal history. Fitting a broad range of institutional details into a comprehensive and subtle theoretical framework, Chafetz shows how Congressional privileges in America and Parliamentary privileges in England sprang from common origins but then evolved along separate paths as a result of basic differences in the political ecosystems. An excellent chronicle of the evolution of legislative privileges from the parliamentary supremacy of England to the popular sovereignty in kingless America."High praise from such a prominent author. Good work, Josh. My guess is that William Jefferson will get what's coming to him regardless of what becomes of the evidence taken by the FBI search. (4) opinions -- Add your opinion
Mr. Chafetz's interpretation may be supported by his detailed reading; like you, I cannot adequately judge. I would like to note, however, that the conclusion is repugnant because it violates the symmetry of powers among the branches of government.
The Congress can remove Presidents or Justices by an act of raw political will, without any further justification. Allowing them also to completely shield themselves from removal for their own malfeasance would undesirable privilege the Congress above the other branches.
If a congressman serves his constituents and his party by dishonest means, it is unlikely he will be removed from within. It is entirely possible that Mr. Jefferson's constituents were not harmed by his alleged crimes -- his enhanced total influence may have compensated for their decreased share thereof. Protecting the Congress against the other branches of government is tantamount to protecting its members from any oversight whatsoever.
Why are we discussing this as if this is a raw exercise in executive branch power? We aren't seeing the clash of inherent powers here. Rather, we are seeing the executive branch enforcing laws written by Congress.
If Congress intended that crimes such as bribery and campaign finance violations should not be enforced against members of Congress, shouldn't Congress have made that plain in the statutory text?
Congress wrote these criminal laws and didn't exempt itself. The Constitution requires the executive to carry out the enforcement of those laws. It's hard to see the basis for Congress to complain now.
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