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.”
- 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 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 specifically by and in reaction to the overreach of Dick Cheney.
Let me be clear. The danger to our constitution and freedom represented by Cheney's view and advocacy of the unitary executive was real and frightening. There was a real possibility that he would succeed and this administration would break the constitutional framework that restrains the executive branch. That risk is over. He failed. The risk facing us now is that the pendulum will swing too far the other way. Democrats and Congress should heed John Podesta's warning.
It is worth citing a few examples of where we were before this administration, how Cheney and company tried to push the presidential power envelope, and where we are likely to be when the power pendulum finishes its arc back in time for the next president.
If there is one sentence that should send shivers up the spine of any American concerned about the expansion federal government power, it is the highlighted sentence in a sidebar to the Washington Post series exploring the historical roots of the Cheney doctrine:
Cheney left the [Ford] White House at what he later called "the low point" of presidential authority. Congress is "all too often swayed by the public opinion of the moment" and is incapable of making the swift decisions required in "a dangerous and hostile world," Cheney said at an American Enterprise Institute conference on Dec. 6, 1983, according to the transcript... Simply by creating a defense establishment, Cheney said, Congress had "already given prior approval" for any presidential decision on where and how to make war. "We have appropriated the funds and raised the army and purchased the equipment and built the missiles and the bombers, and the president has the authority to make decisions about how to use those things."
Based on that, it should be no surprise that Cheney took the position that no war resolution was needed for action in Iraq. A position he is certainly continuing to promote in the context of military action in Iran. The premise was never tested, as it was not needed. Congress accommodated the administration with a resolution authorizing the use of military action in Iraq that was a blank check for the President. The war resolution was loosely worded, did not specify a mission, benchmarks, timeframes, exit strategies, or any real constraint on the use of the military. Congress today continues to wrestle with the consequences of that resolution. In the face of the incompetent prosecution of the war, the President moving the goal line with multiple, ambiguous, and expanding military missions and continuous assertions from the Cheney Doctrine of Unlimited Executive Wartime Power for the executive, one thing is absolutely certain: For at least a generation, until such time that the debacle of Iraq has faded from memory, outside of a declaration of total war, no President will again be granted an open ended military authorization resolution as this President received. Congress will be much more circumspect and legalistic, more along the lines of the authorization that President Clinton was granted for military action in Bosnia (which included requirements for progress reports, a funding time limit, and, of course, an exit strategy). As far as this Congress is concerned - Never Again - and a weaker, more constrained presidency is the result.
If the title of this piece is not pushing far enough out on the politically incorrect thin branches, this next observation should do it. I find it interesting that the only Democratic Presidential candidate that seems to have a real appreciation of the dangers inherent in the "pussification of the presidency" is the front runner Senator Hillary Clinton. This is from her speech on the Senate floor as she cast her vote in October 2002 for the resolution authorizing the use of armed forces in Iraq:
"... perhaps my decision is influenced by my eight years of experience on the other end of Pennsylvania Avenue in the White House watching my husband deal with serious challenges to our nation. I want this President, or any future President, to be in the strongest possible position to lead our country in the United Nations or in war... So it is with conviction that I support this resolution as being in the best interests of our nation. A vote for it is not a vote to rush to war; it is a vote that puts awesome responsibility in the hands of our President and we say to him - use these powers wisely and as a last resort."
- a president who cannot be restrained, through validly enacted statutes, from pursuing any tactic he believes to be effective in the war on terror
- a president who has the inherent constitutional authority to designate American citizens suspected of terrorist activity as "enemy combatants," strip them of any constitutional protection, and lock them up without charges for the duration of the war on terror— in other words, perhaps forever..."
Just past the Oval Office, in the private dining room overlooking the South Lawn, Vice President Cheney joined President Bush at a round parquet table they shared once a week. Cheney brought a four-page text, written in strict secrecy by his lawyer. He carried it back out with him after lunch... Cheney's proposal had become a military order from the commander in chief. Foreign terrorism suspects held by the United States were stripped of access to any court -- civilian or military, domestic or foreign. They could be confined indefinitely without charges and would be tried, if at all, in closed "military commissions... CNN announced the order that evening, Nov. 13, 2001"
"On June 28, 2004, the Supreme Court ruled 8 to 1 in the Hamdi case that detainees must have a lawyer and an opportunity to challenge their status as enemy combatants before a "neutral decision maker." The Rasul decision, the same day, held 6 to 3 that Guantanamo Bay is not beyond the reach of federal law... Over the next 12 months, Congress and the Supreme Court imposed many of the restrictions that Cheney had squelched. "... On June 29, 2006, the Supreme Court struck its sharpest blow to the house that Cheney built, ruling 5 to 3 that the president had no lawful power to try alleged terrorists in military commissions [Read the opinion]. The tribunal order that Cheney brought to Bush's private dining room, and the game plan Cheney's lawyer wrote to defend it, fetched condemnation on disparate legal grounds. Not only did the court leave the president beholden to Congress for the authority to charge and punish terrorists, but it rejected a claim of implicit legislative consent that Bush was using elsewhere to justify electronic surveillance without a warrant. And not only did it find that Geneva's Common Article 3 protects "unlawful enemy combatants," but it also said that those protections -- including humane treatment and the right to a trial by "a regularly constituted court" -- were enforceable by federal judges in the United States."Much more on the issues raised by torture, interrogation, detention, war powers, Executive authority and more in Jack Balkin's excellent list here.
"President Bush's decision to submit his warrantless-surveillance program to the jurisdiction of a special intelligence court represents the latest step back from the expansive interpretation of executive power he has asserted since the Sept. 11, 2001, attacks. Under pressure from Congress and the courts, Bush in the past six months has closed secret overseas CIA prisons, transferred previously unidentified detainees to regular military custody, negotiated congressional approval for tribunals to try foreign terrorism suspects and accepted at least some regulation of how harshly such prisoners could be interrogated."
"The president's press conference was held hours after the Senate delivered a bipartisan slap at Bush, voting 94 to 2 to strip Gonzales's authority to appoint interim US attorneys without Senate confirmation -- authority granted to him in a revision of the USA Patriot Act.
Not all of the damage from the Cheney doctrine has been undone. The gutting of the Great Writ of Habeas Corpus is the most notable outstanding assault on civil liberties. Senators Leahy and Spector have just introduced legislation to restore the right without ambiguity and DWSUWF recommends signing the petition to support their efforts. Backstopping Congress, the Supreme Court has decided to hear a Guantanamo detainee case centering on The Great Writ. This topic is deserving of a post of its own, which we'll get to as the debate heats up. but it is worth pointing out here, that Americans in the past were happy leave a little ambiguous wiggle room in the Writ, should a President need it in a time of national emergency. Abraham Lincoln used that wiggle room suspending the writ in wartime. It is likely that wiggle room will disappear, and a weaker presidency will result.
We'll conclude with another quote from Angler:
"David Gergen, who worked with Cheney during the Ford years, said the vice president's "zealous reassertion of the power of the presidency" during this administration is completely consistent with the views he expressed long ago. He felt that what had become known as the imperial presidency during Nixon had become the imperiled presidency," Gergen said. "Where a number of us people part company with him is that a number of us believe that through Reagan, those powers had been substantially restored."