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"Don't You Ever Get Tired of Being Wrong All the Time?"*

I have lost track of the court decisions rebuking this administration. But the latest one is fairly important in terms of restoring the rightful constitutional balance between Congress and the Executive. Of course, this decision and the entire set of facts underlying it illustrate my belief that the constitutional design of separation of powers is defunct and incapable of functioning unless the opposite parties occupy the elected branches.

Without further ado, here's my favorite benchslap line from Judge Bates:

In the thirty-four years since United States v. Nixon was decided, the courts have routinely considered questions of executive privilege or immunity, and those issues are now ?of a type that are traditionally justiciable? in federal courts, United States v. Nixon, 418 U.S. at 697(citation omitted), and certainly not unprecedented, as the Executive contends.

Indeed, the aspect of this lawsuit that is unprecedented is the notion that Ms. Miers is absolutely immune from compelled congressional process. The Supreme Court has reserved absolute immunity for very narrow circumstances, involving the President?s personal exposure to suits for money damages based on his official conduct or concerning matters of national security or foreign affairs. The Executive?s current claim of absolute immunity from compelled congressional process for senior presidential aides is without any support in the case law.

The Volokh Conspiritors are analyzing this significant decision rebuking Bush's warped constitutional theories as quickly and thoroughly as the purported University of Chicago tenure offer to Sen. Obama.

*Homer: "Don't You Ever Get Tired of Being Wrong All the Time?"
Marge: "Sometimes"

Bonus points if you name the episode without googling.

Full post as published by Nuts & Boalts on July 31, 2008 (boomark / email).