The Pussification of the Presidency
By mw | Related entries in Bad Decisions, Law, Legislation, Supreme Court, War
For libertarians, liberals, and limited government conservatives, the most alarming aspect of the Bush 43 administration has been the drive to expand the power of the executive at the expense of the judicial and legislative branches. The recent Washington Post series “Angler� confirms the fears of many - This administration, while paying lip service to the constitutional notion of three co-equal branches, has consciously and forcefully promoted an agenda to institutionalize the Presidency as “more equal� than the other two branches. This is not new. The administration has been quite explicit about their intent to expand the power of the presidency. What is new, is the degree to which the series reveals that while the President may be the driver of the administration bus, the Vice-President is the navigator setting the political destination and steering the administration course, is the engine powering this ideological vehicle grinding opposition under the wheels, and is pumping the high octane political fuel for this reckless joy ride. What is interesting, is that despite, and perhaps even because of this single minded driving obsession, the office of the Presidency will arrive at a completely different destination.
Not surprisingly, political opposition continues to focus on the car wreck that the libertarian Cato Institute called a “Power Surge� in their May, 2006 analysis of the administration’s constitutional record. Two recent examples illustrating this perspective:
- The publication of “Unchecked and Unbalanced
- Presidential Power in a Time of Terror� - From the International Herald Times review:
“In their chilling and timely book Frederick A. O. Schwarz Jr., senior counsel at the Brennan Center for Justice at the New York University School of Law, and Aziz Z. Huq, who directs the Liberty and National Security Project at the Brennan Center, argue that the Bush administration’s “monarchist claims of executive power” are “unprecedented on this side of the North Atlantic,” and that its “executive unilateralism not only undermines the delicate balance of our Constitution, but also lessens our human liberties and hurts vital counterterrorism campaigns” by undermining America’s moral authority and standing in the world.â€Â?
- The well attended “Curbing The Imperial Presidency� panel discussion at the liberal “Take Back America� conference a few weeks ago. The conference was covered by David Weigel at Reason who highlighted this nugget:
“… the most interesting exchange came near the very end, after Podesta had heard a week’s worth of griping about presidential power crammed into one hour. “Keep in mind,” he said, “we could go too far in hobbling the president. The next president will repeal Don’t Ask Don’t Tell. Congress won’t support it. We want to restore some balance, but you don’t want to give all of this power to Congress.”
Aye, John - there’s the rub. With all due respect to the International Herald Tribune, the time for the Fredrick Schwarz book has come and gone. In May 2006, when the Cato article was published, it was timely. But it is no longer May 2006. It is July 2007. There have been Supreme Court decisions and there has been a congressional election. We now have a Democratic majority in congress, divided government, a lame duck executive without popular support and the pendulum is swinging back with a vengeance. While many in the blogosphere and MSM have focus on the WAPO exposure of the worrisome but ultimately historical aspects of Cheney’s role in this administration, few seemed to note the more relevant and timely message of the article:
“The way he did it — adhering steadfastly to principle, freezing out dissent and discounting the risks of blow-back — turned tactical victory into strategic defeat. By late last year, the Supreme Court had dealt three consecutive rebuffs to his claim of nearly unchecked authority for the commander in chief, setting precedents that will bind Bush’s successors.”“The irony with the Cheney crowd pushing the envelope on presidential power is that the president has now ended up with lesser powers than he would have had if they had made less extravagant, monarchical claims,” said Bruce Fein, an associate deputy attorney general under President Ronald Reagan.”
One blogger who did take notice is Sean Aqui posting at Donklephant and Midtopia in his post “Cheney’s destruction of executive power”:
“One of the main themes of the series is that Cheney, while harshly rebuked, has in practice been far less leashed than most people think, thanks largely to his willingness to build and exploit legal loopholes and questionable claims to get around adverse rulings. But the fact remains that he has weakened the White House for future occupants, especially ones with more respect for legal precedent, logic and intent.”
The genius of our constitution pitting “separate and equal” partisan branches with “ambition countering ambition” and holding each other in “check and balance” is that the swings of power behave like a pendulum, rising and falling in any given branch. And like any pendulum, the further it it is pushed out, the further it swings back. If you push it really hard and fast in one direction with the hope it will stay there, then you better hope to break the constitutional framework that holds the cable, or when that pendulum swings back it will knock you well behind where you started.
The ultimate irony: The historical legacy of Dick Cheney and this administration will be a permanently weaker executive branch, constrained by shackles applied by the judiciary and the legislature, precipitated precisely by and in reaction to the overreach of Dick Cheney in pursuit of a stronger executive branch.
continued at “Divided We Stand United We Fall”
This entry was posted on Wednesday, July 11th, 2007 and is filed under Bad Decisions, Law, Legislation, Supreme Court, War. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.
July 11th, 2007 at 3:17 pm
“precipitated precisely by and in reaction to the overreach of Dick Cheney in pursuit of a stronger executive branch.”
What I believe has people up in such arms about this ‘executive power’ issue is that the president and the vice president seem to lack
any social refinery. They have snubbed their nose at anyone and everyone outside their secretive inner circle.
People have legitimate concerns about the nature and sources of influence directing the presidents actions. Whenever these legitimate questions are asked people are shunned or altogether dismissed. People have a right to know why no-bid contracts are being given to companies which the vice president and likely the president has had past relations with.
People have the right to ask why the invasion of Iraq occurred when there wasn’t sufficient evidence that Iraq posed a danger to the US. People have a right to know why CIA officers are being
uncovered merely for their relations to another. The list goes on and on. And so does the evasion and arrogancy of this administration.
The executive branch is and ought to be an equal branch of government. It should not however, be the ‘whatever I decide is legal because I am the president” branch. After all, Nixon thought it was perfectly legal to have people running about our nations capital breaking into political rivals offices to frame them. I suppose if Nixon had the luxury of the “War on Terror” he too could have survived office by “exercising” his “executive privileges” to protect the people from “imminent dangers.” Obviously the American people were not dumb enough to fall for that then, unlike we are falling for it now.
Times of war don’t grant the president king status, and that is essentially what president Bush means when he “sees a strong and active” executive branch.
July 11th, 2007 at 4:52 pm
Jeremy,
I agree with much of what you say, some of which is reflected on the continuation of this post on my blog. The power grab by this administration had to be trimmed. But as that process continues in this congress, it is important to remember that this is not going to be about George Bush or Dick Cheney for very much longer. It is important to think about what the office of the President is going to look like when Hillary, or Rudy, or Barack, or Chuck take the reigns 18 months from now. It is a foregone conclusion that it will be weaker office than when GWB became president. The question is how much weaker, and at what point does that become dangerous.
July 11th, 2007 at 7:54 pm
Hey mw, with all due respect, I am not sure I agree with your analysis completely. The history of the executive branch has ebbed and flowed over the history of this country. It’s reach and function is largely a result of the personality and agenda of the president who holds it. I don’t believe that Bush’s ‘abuse’ so-to-speak of his powers, or the abuses of his vice president will necessarily ‘ruin or rub off’ on the next
president.
I believe the unique relationship between the executive branch and legislative branch see the current power dynamics for what they are and will treat the next administration accordingly, which is to say, the next in coming president will be given a chance to prove himself/herself
and their vision and agenda for America. What will remain unanswered for a time is how will the clearly excessive liberties Bush took while in office will affect the next presidents view on ‘executive powers’ and the tone of the relationship that will be struck between the incoming president and congress as to the balance of clearly needed security against terrorism on the one hand and a need to protect the very things that make America a free and thriving democracy/republic, i.e. civil rights and the right to privacy without fear of arbitrary prosecution based on ones class, creed or position.
I would agree with you, in that the next president has a roll to play, whether sought or imposed to make clear where America is going to go. Are we going to give the president (executive branch) yet more unfettered power to conduct an untethered, unchecked war on terror or is the next president going to strike a balance between security and the rights Americans have come to
revere and expect. I agree with you that this is perhaps a fork in the road of American history where it could go either way. Personally, I hope to see Americas constitutional rights and liberties upheld, even in the face of the so-called “war of our generation.” If another attack was to occur today, I’m sure the current people in power would swing the pendulum to the furthest right, justifying it by the fact that in time of war liberty must concede in the face of current dangers. Unfortunately, Bush himself has stated the belief that this “struggle” will be a struggle
of ages, not years. So, that begs the question? Are we supposed to relinquish our liberties and rights for the next 100 or 1,000 years? Then an equally apt question needs to be asked. If America ceases to “BE” America, then haven’t we already lost this struggle?
I
July 12th, 2007 at 11:33 pm
“The history of the executive branch has ebbed and flowed over the history of this country. It’s reach and function is largely a result of the personality and agenda of the president who holds it.” -j
Jeremy,
We agree more than you might think. Historically you are 100% correct. It feels to me almost like an unspoken bargain has existed between the executive and the people. Kind of - We don’t put too specific restrictions on your power, in case you need it to protect us, and you (the president) don’t overuse or abuse it for too long. Kind of an agreed ambiguity. Habeas Corpus being the perfect example, with creative ambiguity around it in place for 150 years, but about to end. Abraham Lincoln (the first Republican president) suspended it for a period of time, because he felt he had to in his role of Commander in Chief to save the Union. The Supreme Court ultimately slapped him on the wrist, but did not create a definitive precedent to insure it never happened again. The wiggle room was left for future presidents to use if needed. Now we have George Bush (perhaps the last Republican president) with an explicit and blatant attempt to institutionalize the right of the Executive Branch to suspend Habeas Corpus at will. That cannot stand and Bush/Cheney is apparently too f*ing stupid to realize it. The result? The Leahy/Spector Bill or the Supreme Court or both will remove that option for all time and all future presidents. Better that, than letting the Cheney Doctrine stand. But better than either black or white, was that little bit of gray - which now will be be taken away. Thanks to Dick Cheney - worst vice president in history.