When it come to the process of how government should run and operate I am quite conservative. While I have liberal policy goals, and have much fun cranking Republicans on my blog, I have a very narrow view for what constitutes the proper procedures that government should abide by when conducting the nation’s business. As such, I was not pleased with the lack of public discussion in the recent campaign over a most important issue, that being the amount of executive power that resides with the President.
Over the past eight years there has been a massive effort to expand the powers of the executive. That does not bode well for the nation. I would make that same statement about the issue had Barack Obama been in charge for the last two terms. (And I am sure to raise this issue again as the months go by under an Obama Administration.) This issue is not one of Democratic or Republican partisanship, but instead should be viewed as an American issue. The results of a stronger executive branch undercuts the legislative, and ill-serves the very people they all claim to work on behalf of.
The goal for greater executive reach and power contained within the Patriot Act, Iraq War, and interrogations of those deemed to be terrorists, are just a few headline examples of what can go wrong when the legislative branch is treated like, or acts like, a doormat. And let us not forget the infamous ‘signing statements’ that are just plain wrong, I would argue, on constitutional grounds.
This past weekend a long and brilliant piece about the excessive growth of executive power was written by Johnathon Mahler,and as such it demands a read. I will post a few sections here, and while I realize that this topic is not ‘sexy’, I think it worthy of everyone’s attention. I sat up late last night and read this piece, and hope for some constructive feedback from my readers. If not, I hope at least it starts some more discussion where ever you are.
As it turned out, the power of the president soared to new heights under Bush. Many of the administration’s most aggressive moves came in the realm of national security and the war on terror in particular. The Bush administration claimed the authority to deny captured combatants — U.S. citizens and aliens alike — such basic due-process rights as access to a lawyer. It created a detention facility on Guantánamo Bay that it declared was outside the jurisdiction of the federal courts and built a new legal system — without any input from Congress — to try enemy combatants. And it argued that the president’s commander-in-chief powers gave him the authority to violate America’s laws and treaties, including the Geneva Conventions.
The assertion and expansion of presidential power is arguably the defining feature of the Bush years. Come January, the current administration will pass on to its successor a vast infrastructure for electronic surveillance, secret sites for detention and interrogation and a sheaf of legal opinions empowering the executive to do whatever he feels necessary to protect the country. The new administration will also be the beneficiary of Congress’s recent history of complacency, which amounts to a tacit acceptance of the Bush administration’s expansive views of executive authority. For that matter, thanks to the recent economic bailout, Bush’s successor will inherit control over much of the banking industry. “The next president will enter office as the most powerful president who has ever sat in the White House,” Jack Balkin, a constitutional law professor at Yale and an influential legal blogger, told me a few weeks ago.
The Senate is a different place now, though. Consider this telling bit of institutional history, as related by Robert Caro in his continuing biography of Lyndon Johnson. When Johnson was elevated to the vice presidency in 1961, he suggested to Senator Mike Mansfield, his successor as Senate majority leader, that he be permitted to continue presiding over the Democratic caucus. Mansfield initially agreed — but the rest of the caucus revolted. The vice president might be the ceremonial president of the Senate, they argued, but to empower him to attend their caucuses, let alone run them, would create a dangerous precedent.
By contrast, in recent years, you could set your watch by the arrival of Vice President Cheney’s motorcade on Capitol Hill for the Republican caucus’s weekly strategy sessions. He was at times known to bring Karl Rovewith him as well. “You can imagine the amount of dissent that goes on with the two of them sitting there,” Leahy told me.
As Leahy sees it, these weekly trips to Capitol Hill were part of the administration’s strategy to marginalize Congress by encouraging Republican senators to put party loyalty ahead of institutional loyalty. He draws a sharp contrast between Cheney and vice presidents like George H.W. Bush and Walter Mondale, who made an effort to get to know members of both parties and ensure that their voices were heard inside the Oval Office. “I think in a way this administration set out to make the Republican Partyon the Hill an arm of the White House,” Leahy told me.
But the politicization of the Senate didn’t begin with Bush. Norman Ornstein, a resident fellow at the American Enterprise Institute, traces the roots of the trend to the Congressional elections of 1994, when the Republicans took back the House after 40 years in the minority. Led by Newt Gingrich, a new group of fire-breathing freshman lawmakers arrived on Capitol Hill with an ambitious, highly partisan agenda. Finally in the majority, the House Republicans gleefully wielded their newfound subpoena power to harass the Democratic president, Bill Clinton, by, for example, taking dozens of hours of testimony on whether he abused the White House Christmas-card list for the purposes of fund-raising.
According to Ornstein, the Senate, and in particular its leader through 1996, Bob Dole, was at first skeptical of Gingrich and his ideological minions in the House. But Dole’s successor, Trent Lott, was more partisan and thus more willing to engage in the politicization of Senate actions like the confirmation of Clinton’s judicial appointments.
It was the Clinton impeachment trial in 1999, though, that finally pushed the Senate into the trenches of political warfare and polarized the institution once and for all. Senators now saw themselves as members of their respective political parties first — and representatives of their constituencies second. After George W. Bush’s election in 2000, many Republicans on Capitol Hill saw it as their duty to protect him from their Democratic colleagues. “The Republican leaders in both houses of Congress made the decision that they were going to be field soldiers in the president’s army, rather than members of an independent branch of government,” Ornstein says.
You need not look any further than Senator John McCain’s efforts to give Congress a voice in the treatment of detainees to grasp the difficulty that the legislative branch faces trying to push back against a determined president.
McCain first got involved in the torture fight in early 2005, when it was by no means a popular cause, particularly inside his own party. “At a time when there was not a single person in the United States who had any influence who was willing to take this issue on, he took it on,” says the executive director of Human Rights First, Elisa Massimino, who worked with McCain on the torture bill.
The White House did everything it could to stop McCain, Warner and Graham from going forward with their torture bill. Bush repeatedly threatened to veto the legislation, and Cheney met behind closed doors with the three senators on three separate occasions to persuade them that limiting the president’s power to authorize coercive interrogations would hurt the war against terror.
McCain dug in his heels, though. When Stephen Hadley, the president’s national security adviser, called Warner to urge the senators to at least soften the language of the legislation, a Warner aide alerted a McCain staff member. In a matter of minutes, McCain was bounding down the hall toward Warner’s office. He emerged triumphantly a few minutes later, joking to Warner’s staff, “I had to go in there and waterboard him.”
After months of work, the senators succeeded in getting the torture bill passed with a vetoproof majority, 90-9. But the president subsequently undid all of their efforts with a stroke of the pen. The language of the bill required that all military interrogations be conducted according to the United States Army Field Manual, which defines what methods can and can’t be used and outlaws “cruel, inhumane or degrading” treatment of prisoners. When Bush signed the bill into law at the end of 2005, he issued a presidential signing statement asserting the right, as commander in chief, to determine what constitutes “cruel, inhumane or degrading” treatment. For good measure, he reserved the power to violate the torture bill itself if he thought it necessary for the purposes of national security.