I was vastly disappointed by the federal appeals-court panel that just ruled against the Bush administration in Fox et al. v. the Federal Communications Commission. This was an opportunity of Marbury v. Madison proportions -- that hoary case from which the Supreme Court took the almost trivial issue of a justice of the peace's presidential appointment and bada-bing built the broad legal construction known as judicial review -- and the court wasted it.
This time around the appeals panel (drawn from the United States Court of Appeals, Second Circuit, New York) "struck down the government policy that allows stations and networks to be fined if they broadcast shows containing obscene language."
The panel's correct but circumscribed reasoning was, in a nutshell, this: "If President Bush and Vice President Cheney can blurt out vulgar language, then the government cannot punish broadcast television stations for broadcasting the same words in similarly fleeting contexts."
A conspicuously sound decision, employing the conspicuous goose-and-gander rationale. So far so good, but not nearly far enough.
Not far enough, because although the appeals panel waded into the expansive legal territory of "indecency" and "vulgarity," it limited itself to indecencies and vulgarities that merely "referenced sexual or excretory organs or activities."
Why stop there? Just as Chief Justice John Marshall stopped not in 1803 at the limited matter of a government appointment, the New York appeals panel should have broadened its ruling to encompass the broadest territory of the indecent and the vulgar -- which is to say, the defining characteristics of the Bush administration.
It wasn't enough for the panel to point out, for instance, that since the vice president feels free to instruct U.S. senators to self-fornicate on the Senate floor, Keith Olbermann should feel free, on the air, and as a matter of law, to request the same of Bill O'Reilly.
For indecency and vulgarity have surpassed the merely scatological. They now form, by all appearances, the unconstitutional basis of de facto presidential and vice-presidential powers.
The court should have brutally acknowledged this new reality and issued forth the broad thoughtfulness that since plenary indecency and vulgarity -- from warrantless wiretapping to torture to partisan prosecutions -- have become the accepted legal standards for executive power, what then in the names of indecency and vulgarity aren't properly and legally allowable?
Somewhere, John Marshall is grieving. Federalist though he was, he would have seen the poetic opportunities in this case involving two men of insatiable appetites for power and savored going whole hog.