"Separation of Powers" And Immunity

I generally agree with Mark Tushnet that Robert Jackson’s much-cited and lauded concurrence in Youngstown is overrated, in the sense that it effectively describes the puzzles of evaluating the constitutionality of presidential action without providing any useful way of resolving the most interesting and important questions. Still, his descriptions can sometimes be useful, and I think this is the case with the passage cited in yesterday’s opinion rejecting Bush administration assertions of “absolute immunity”:

While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate depending upon their disjunction or conjunction with those of Congress.

In this sense, the “checks and balances” metaphor is a more useful one than the “separation of powers” metaphor the Bush administration’s claims essentially rest on. In Richard Neustadt’s language, the American system is really “one of shared, not separated, powers.” The oversight function of Congress is crucial to the logic of the system, and the kinds of broad immunity being claimed by Bush would unacceptably frustrate it, as Judge Bates correctly recognized.

In addition, Josh Patashnik wonders why the Bush administration would make these farcical claims, when even if more plausible and narrow claims of immunity were rejected it is “very easy to send aides before Congress and simply have them spew nonsensical garbage, avoid answering tough questions, claim to not remember anything, and be generally unhelpful.” The answer, I think, is just contempt of Congress in every sense. It’s not that Bush thinks that Miers or Bolten will say anything that’s directly incriminating; they just want to send a message that they think that their potentially illegal practices should be beyond the scrutiny of mere legislators.