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The Biggest Loser: James Madison

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The Biggest Loser: James Madison
by Andrew Stengel

Cross Posted at The Brennan Center for Justice blog

Tuesday night's Democratic debate covered health care and the war in Iraq and jobs and the economy. In other words, the NBC News moderators asked mostly the same questions as, well, the 19 previous debates.

As is customary, talking heads and the print media proclaimed who won and lost. Opinions varied, but nobody named last night's real loser: James Madison, the father of our Constitution and champion of checks and balances.

The issue of presidential power, which is an unlikely answer to pollsters' endless queries as to what is the most important issue in this election is actually quite ubiquitous. Warrantless surveillance. The Foreign Intelligence Surveillance Act (currently stalled in the House. ) Retroactive immunity for telecomm companies. Justice Department investigations into torture. Destruction of evidence of torture. Presidential signing statements that flout the intent of Congress. Indefinite detention. Trials for terror suspects under the Detainee Treatment Act. Extraordinary rendition.

Connecting these dots illustrates a remarkable expansion of power in the executive branch over the past eight years that runs afoul of the Constitution and James Madison's intent. Yet, the issue has not arisen - even once -- in any of the 40 debates. (The Boston Globe's Charlie Savage suggested a series of topical questions on the New York Times op-ed page on the eve of the debate.)

The administration's theory of presidential power surfaced long before G.W. Bush took office: in a 1987 congressional minority report on the Iran-Contra scandal. As articulated by then Congressman Dick Cheney, and highlighted by the Brennan Center's Aziz Huq in 12 Steps to Restore Checks and Balances, the report provided the foundation for the current administration's theory of monarchial executive power, which claims that the president can act like a king and override--or ignore--Congress.

Since none of the moderators in any of the Presidential debates have raised questions about our system of checks and balances and how we might best restore Constitutional order, we've written to each of the campaigns and asked them to answer the question printed below. We'll post responses we receive.

In recent years and months, we've learned about warrantless surveillance, signing statements that circumvent Congressional intent, indefinite detention of US citizens, expanded claims of executive privilege, secret memos from the Office of Legal Counsel that justified torture, and much more. Many people - including former members of Republican and Democratic administrations - see these actions as an attack by the executive branch on constitutional checks and balances, Congress and the courts. Do you believe that the presidency has gained too much power? If so, as president, what specific steps would you take to correct the imbalance?

Brennan Center's Senior Fellow Eric Lane notes that, upon swearing in, the president places his--or hand--on the Bible and recites the Oath of Office, committing to: support and defend the Constitution of the United States.

We deserve to know which George the next president will emulate--Washington, or the King III.