Bork Would Rubber-Stamp the Imperial Presidency

One of the central issues that the Supreme Court will face in the near future is whether a President’s actions are limited by law and subject to the will of Congress and the American people.

The Iran- contra scandal has exposed a President and a staff with an exaggerated view of the power of the executive branch of government. This is especially true in the realm of foreign affairs, where the Administration asserts that the President has exclusive power over foreign policy, including the power to support a war against Nicaragua contrary to the intent of Congress as expressed in the Boland Amendment. It has actually taken the position, moreover, that the independent-counsel law--possibly the only means of checking presidential and Administration abuse of authority--is unconstitutional. It has reregistered Kuwaiti ships to protect them in the Persian Gulf without complying with the explicit requirements of the War Powers Resolution.

Under these circumstances, this country cannot afford to have Robert Bork as a Supreme Court justice.

Bork believes that the President should have expansive and unlimited powers over foreign affairs and the war powers. He believes that the courts should have no role in keeping the President within his constitutional limits, even when such power entrenches on congressional prerogatives.

Bork has set forth his views on the plenary power of the executive to conduct foreign affairs unfettered by legislative or judicial constraint. This view allows the President to assert much of the war power that the framers specifically reserved for Congress.

In his dissent in Abourezk vs. Reagan, Bork said that special deference must be given to the President’s authority to make and implement decisions relating to the conduct of foreign affairs, and noted that the power over foreign affairs is “fundamentally executive in nature.” For this proposition Bork relied on the Supreme Court case of United States vs. Curtiss-Wright Export Corp., and its much criticized language regarding the “plenary and exclusive power of the President” over foreign relations. It was this case and language that Lt. Col. Oliver L. North relied on in his congressional testimony when he said that the President and the National Security Council could disregard the Boland Amendment and make war against Nicaragua.

Bork’s position on the bombing of Cambodia during the Vietnam War also reflects this expansive view of the President’s powers. When Richard M. Nixon launched an intensive bombing and ground attack against neutral Cambodia without congressional authorization, Bork testified before Congress that the President had ample authority for his action. Bork explained that it was merely a tactical operation, that Congress was powerless to stop the invasion of Cambodia and that any such efforts would “constitute a trespass upon the power the Constitution reposes exclusively in the President.”

This position is also a highlight of Bork’s testimony in opposition to congressional efforts to impose a warrant requirement to protect private conversations from wiretapping. This testimony occurred after the Church Committee, in the mid-1970s, had detailed serious abuses on the part of intelligence agencies. Nonetheless, Bork said that a warrant requirement would be unconstitutional because it would interfere with the President’s power over foreign affairs and that the “conduct of intelligence activities is basically a function of the executive branch and comes within the constitutional powers of the President.” In other words, Bork would provide carte blanche to the President to use the intelligence agencies as he chooses, and with no controls.

In testifying against the constitutionality of the independent-counsel law, he said that it would be unconstitutional for Congress to pass legislation insulating the special prosecutor from the power of the President to hire and fire law-enforcement officers. Thus, if he should sit on the Supreme Court, no one should be shocked if Bork votes to strike down the laws authorizing independent counsels to investigate the Iran-contra scandal. Bork, after all, was in charge of the “Saturday night massacre” in which Archibald Cox, the special prosecutor appointed by Nixon, was fired.

Bork’s narrow view on the role of the courts in deciding controversies concerning the allocation of power between Congress and the President has the direct effect of increasing presidential powers.

His views about judicial review are contrary to almost 200 years of American jurisprudence. In the bedrock case of Marbury vs. Madison, Chief Justice John Marshall said, “It is emphatically the province and duty of the judicial department to say what the law is.” Without such a role for the courts, we would not have a government controlled by the Constitution, but one that could easily degenerate into tyranny.

Bork’s views on the Imperial Presidency are well documented. We do not need to guess how he would decide the legal issues arising from the Iran-contra scandal. His appointment to the Supreme Court would guarantee a further erosion of the constitutional scheme of separation of powers. He is not the justice whom we need on the court today.