I just finished Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy, by Charlie Savage. His thesis is this: Although the Nixon, Reagan and both Bush admins are the clearest culprits, the expansion of the powers of the presidency, both within the executive branch and relative to the other branches of government, is a matter that cuts across party lines, and has been going on in a two-steps-forward-one-step-back kind of way ever since Truman claimed the inherent executive authority to send troops to Korea with or without Congress’ approval. But it was Dick Cheney who really secured the full-bore expansion of the “imperial presidency” or “unitary executive,” to which he had been ideologically committed since his service in the Nixon Administration. It was during the Bush II Admin that the president started routinely claiming the authority to defy the directives of Congress – by signing statements attached to legislation or simply by executive orders ignoring contrary existing legislation – usually in contexts where it would be nearly impossible to find anyone with personal legal standing to bring the question before the courts. It was the Bush-Cheney Admin that took unprecedented steps to bring traditionally independent statute-driven bureaucrats under the firm control of presidential political appointees and make everything they do serve the president’s political agenda, even if that agenda runs contrary to the basic mission of their agencies.
Highly recommended read, if a bit thick – it was written by a lawyer/journalist and gives close attention to the details of litigation, judicial opinions, legislation, Congressional hearings and investigations, etc.
Issues for debate:
What is the proper constitutional balance of power and functions between the executive and the other branches?
How much control should the administration have over the bureaucracy?
Is there any practical way, short of constitutional amendment, that the “imperial presidency” can be rolled back, so as to place the vast powers W has claimed utterly beyond the reach of future administrations? (Even Dems might be tempted, you know.)
Unlimited discretion and freedom of action, independent of Congressional oversight, over any matter touching on national security or military business, including the commitment of troops to action.
The power to negotiate agreements with foreign governments that have force equivalent to treaties even though the Senate never gets to vote on them. (Right now the Admin is working on a Status of Forces Agreement with Iraq, nailing down our future commitments there, with no role for Congress – see this article.)
The power to circumvent all the provisions Congress has enacted for direct Congressional oversight of various executive agencies.
The power to decide, on the president’s own authority, subject to review neither by Congress nor (in practice) the courts, what parts of a given statute are constitutional or unconstitutional.
Just for starters.
But if the president, who has actual supervisory authority over all the EB officials, decides to do whatever he wants, what can Congress do about it short of the nuclear option of impeachment?
If an agency defies congress at the order of the president, they can be defunded.
As for the nuclear option of impeachment, well, if we’re truly talking about a rogue president, impeachment is clearly the correct answer.
The trouble is that Congress won’t do so if they don’t think they have the backing of the American people, the Republicans shot themselves in the foot over the Clinton impeachment debacle. While Clinton might have lost power, the Republican congress lost more.
At the end of the day, if the American people want fascism, fascism they shall have. The Constitution is just a piece of paper if the citizenry doesn’t care whether it is followed.
Again, I return to my point; just because Congress does not want to do something doesn’t mean they can’t, and therefore doesn’t mean the Constitution has been subverted. You are saying, in effect, that Congress will not do the things you want them to do. Well, fair enough; vote in different Congressmen/women, and the results will differ.
There’s no Constitutional crisis here; it’s just the will of the people going down a road Mr. Savage doesn’t want it to.
I’m curious about this one. Couldn’t the next occupant of the Oval Office simply say “I think this is a bad idea,” and cancel it? Who would be in a position to object to the next president doing just that?
The defund the war movement lost traction when the news out of Iraq stopped looking like an incredible disaster and started looking more like an ordinary run of the mill disaster. When the trend lines went flat or even sometimes up instead of down, the antiwar movement was put on hold.
The American people aren’t against wars, they are against losing wars. If the Iraq war muddles along at current levels, then there’s no way Congress will summon the guts to defund the war. The next time things turn bad in Iraq then all of the sudden the Democrats will remember that they ran on a platform of ending the war.
Of course, everything changes next year. Since Bush has been a lame duck ever since the primaries started up, impeaching him seems like a waste of time.
This is the one that most interests me. One of the major problems I’ve had with this administration is not just their expansion of Presidential powers, but their steadfast unwillingness to actually have the issues decided. It is one thing to insist that President doesn’t have to follow the law or to issue signing vague signing statements indicating you don’t think you have to follow them. It is an entirely different thing to actually have the courage and honesty to put your views up to proper debate and ruling.
From Padilla to Hamdi to FISA to Guantanamo to immunity for the telecoms, this administration has gone out of it’s way to avoid making their (mostly bullshit) arguments in court. I’d have much more respect in this administration, or any administration for that matter, took responsibility for their actions and argued their case in court.
I think that actually having these issues go before courts would be the ideal (and the Constitutionally envisioned) way of curtailing the expansion of Presidential power.
But that would presuppose that the courts had some juridiction over the President…it’s all of a piece with the Unitary Executive principle. If your mantra is, “I’m the boss of all of you!” why would you go to a court to uphold the notion?
Remember Iran Contra? The Reagan administration secretly sold weapons to Iran and used the proceeds to fund a war in Nicaragua that was specifically de-funded by Congress.
The problem is that Congress sets the budget, but Bush has issued signing statements saying that he will not follow some of the budget guidelines. So far no one has had the guts to challenge these in court. If that does happen and the SC sides with Congress then we have a full blown constitutional crisis if Bush refuses to abide by the ruling. If the SC sides with the administration then we have become a facist state.
It’s scary that theconstitution is held in such contempt by the current occupiers of the White House.
Add to the list Bush’s executive authority to suspend the Geneva Conventions.
I think you sum it up nicely. It is a constitutional crisis. The Bush-Cheney administration refuses to obey the law and justifies the defiance with a fraudulent theoretical assertion about inherent executive power or, as BrainGlutton already wrote, the Unitary Executive Theory, Bush–Cheney style.
This administration made decision and formed legal opinions in secret. Information was removed from agency websites and rubber stamped classified or not for public dissemination. Opposition to the administration was curtailed with intimidation. It is hard to control a president who will not follow the rules. Walker v Chaney challenged the administration’s secrecy and nondisclosure policy, but the court sided with the VP and dismissed the case. I do agree with you. The courts seem like the only place Congress can go to challenge an unlawful president and take back the authority to control executive power with laws.
The rule of law is the enemy of the powerful. – Charlie Savage
The only way to control the executive branch is with a government that actually works the way it is designed, and the only way government will work the way it is intended is with transparency and accountability. It has always been the role of the press to investigate government and report information to the American people. The press once served a crucial role in the U.S. system of government. This tradition seems to be eroding with each corporate merger. This Bush-Cheney administration represents a complete break down in our system of government. Unless the system is restored through a fundamental shift away from corporate interests, this will be the first chapter in the subversion of American democracy and the rise of imperialism. Any laws, legal precedence, amendments to the Constitution, or presidential power agreements are inconsequential without first restoring some basic tenets of democracy.
If only FISA warrants had to be submitted to a a court. If only Hamdi had been able to be heard by the Supreme Court. If only Padilla were allowed to plead his case. If only there were some possible way to prevent Bush from riding roughshod over Congress with regard to the telecoms. Would that some federal judge could affect the status of prisoners at Gitmo even a little.
If any of these things were even remotely possible, then there might be some hope for the rule of law. Then ravings about how the Bush administration was ignoring the courts would be seen as a bunch of whiny-assed nonsense.
Yes, yes, you darling little ingenue. Because the fact that these five instances slipped by not only conclusively shows that Hamlet is spouting “whiny-assed nonsense”, but also demonstrates that this administration has no secrets and is, in fact, a shining beacon of open government with no designs on executive expansion. Philosopher-kings, to the last man.