Archives for the 'Executive Power' Category
Raging against “czars” seems all but obligatory these days for movement conservatives. The proliferation of Obama administration czars means “a giant expansion of presidential power,” warns Karl Rove, former domestic policy czar for the Bush administration–which I suppose proves once again that the capacity for embarassment is a career liability in this town.
Conservatives ought to be concerned about the growth of executive power. But as I argue in my Washington Examiner column this week, “czars” are pretty far down any serious list of executive-power concerns:
conservatives’ current bout of czar mania elevates symbolism over substance. All the focus on a scary moniker for certain executive officials misses the real problem: Unconstitutional delegation of power to the executive branch. Whether those illegitimate powers are exercised by unconfirmed presidential advisers or the president himself is quite beside the point….
Often, czars are mere figureheads, appointed to signal concern over the latest hot-button issue. As one presidential scholar puts it, “when in doubt, create a czar.”
True, it’s problematic that some of these appointees aren’t vetted by the Senate, and that presidents claim czars don’t have to answer to Congress — as when the Bush administration asserted in 2002 that executive privilege shielded then-homeland security czar Tom Ridge from testifying on the Hill.
But as the Washington Independent’s Dave Weigel has pointed out, many of the “czars” who appear on the conservative target list already have to be confirmed by the Senate. Others don’t, but when Obama is hell-bent on taking over the health care sector — one-sixth of the U.S. economy — it’s bizarre to agonize over the allegedly unchecked power exercised by the likes of the AIDS and urban affairs czars.
Similarly, while it’s great to see a nutter like Van Jones denied a federal salary, few of those cheering Jones’ defenestration can coherently explain what the green jobs czar actually does, or the threat he was supposed to represent.
What, was Jones going to give 9/11 “Truthers” and black nationalists jobs weatherizing homes? Will we stop wasting money on such projects now that he’s gone?
On the eighth anniversary of the terrorist attacks on New York and DC, things are going much better than most of us dared hope in the initial aftermath of that horrible day. We’re still a secure, prosperous, and relatively free country, and the fear-poisoned atmosphere that governed American politics for years after 9/11 has thankfully receded.
Not everyone’s thankful, however. Boisterous cable gabber Glenn Beck laments the return to normalcy. The website for Beck’s “9/12 Project” waxes nostalgic for the day after the worst terrorist attack in American history, a time when “We were united as Americans, standing together to protect the greatest nation ever created.” Beck’s purpose with the Project? “We want to get everyone thinking like it is September 12th, 2001 again.”
My God: why in the world would anyone want that? Yes, 9/12 brought moving displays of patriotism and a comforting sense of national unity, but that hardly made up for the fear, rage and sorrow that dominated the national mood and at times clouded our vision.
But Beck’s not alone in seeing a bright side to national tragedy. Less than a month after people jumped from the World Trade Center’s north tower to avoid burning to death, David Brooks asked, “Does anybody but me feel upbeat, and guilty about it?” “I feel upbeat because the country seems to be a better place than it was a month ago,” Brooks explained, “I feel guilty about it because I should be feeling pain and horror and anger about the recent events. But there’s so much to cheer one up.”
One of the things that got Brooks giddy was liberals’ newfound bellicosity. That same week, liberal hawk George Packer wrote:
What I dread now is a return to the normality we’re all supposed to seek: instead of public memorials, private consumption; instead of lines to give blood, restaurant lines….”The only thing needed,” William James wrote in ”The Moral Equivalent of War,” ”is to inflame the civic temper as past history has inflamed the military temper.” I’ve lived through this state, and I like it.
There’s something perverse, if not obscene, in “dreading” the idea that Americans might someday get back to enjoying their own lives. “Private consumption!” “Restaurant lines!” The horror! The horror!
Like Brooks’s National Greatness Conservatives, a good many progressives thought 9/11’s national crisis brought with it the opportunity for a new politics of meaning, a chance to redirect American life in accordance with “the common good.” Both camps seemed to think American life was purposeless without a warrior president who could bring us together to fulfill our national destiny.
That’s why prominent figures on the Right and the Left condemned George W. Bush’s post-9/11 advice to “Enjoy America’s great destination spots. Get down to Disney World in Florida. Take your families and enjoy life, the way we want it to be enjoyed.” As Jeremy Lott notes, “in his laugh riot of a presidential bid,” Joe Biden repeatedly condemned Bush for telling people to “fly and go to the mall!” A little over a year ago, asked to identify “the greatest moral failure of America” John McCain referenced Bush’s comments when he answered that it was our failure sufficiently to devote ourselves “to causes greater than our self interest.”
True, Bush’s term “destination spots” is a little redundant; but otherwise, for once, he said exactly the right thing. And of all the many things to condemn in his post-9/11 leadership, it’s beyond bizarre to lament Bush’s failure to demand more sacrifices from Americans at home: taxes, national service, perhaps scrap-metal drives and War on Terror bond rallies?
National unity has a dark side. What unity we enjoyed after 9/11 gave rise to unhealthy levels of trust in government, which in turn enabled a radical expansion of executive power and facilitated our entry into a disastrous, unnecessary war.
In his Inaugural Address, Barack Obama condemned those “who question the scale of our ambitions, who suggest that our system cannot tolerate too many big plans.” “Their memories are short,” he said, “for they have forgotten what this country has already done, what free men and women can achieve when imagination is joined to common purpose and necessity to courage.”
Riffing off of Obama’s remarks, Will Wilkinson wrote:
Can you recall the scale of our recent ambitions? The United States would invade Iraq, refashion it as a democracy and forever transform the Middle East. Remember when President Bush committed the United States to “the ultimate goal of ending tyranny in our world”? That is ambitious scale.
Not only have some of us forgotten “what this country has already done … when imagination is joined to a common purpose,” it’s as if some of us are trying to erase the memory of our complicity in the last eight years—to forget that in the face of a crisis we did transcend our stale differences and cut the president a blank check that paid for disaster. How can we not question the scale of our leaders’ ambitions? How short would our memories have to be?
Oddly, even Glenn Beck seems to agree, after a fashion. The 9/12 Project credo celebrates the fact that “the day after America was attacked, we were not obsessed with Red States, Blue States, or political parties.” And yet Beck has called on “9/12’ers” to participate in tomorrow’s anti-Obama “tea party” in DC.
On the anniversary of 9/11 what’s clear is that, despite the cliche, September 11th didn’t “change everything.” In the wake of the attacks, various pundits proclaimed “the end of the age of irony” and the dawning of a new era of national unity in the service of government crusades at home and abroad. Eight years later, Americans go about their lives, waiting on restaurant lines, visiting our “great destination spots,” enjoying themselves free from fear–with our patriotism undiminished for all that. And when we turn to politics, we’re still contentious, fractious, wonderfully irreverent toward politicians, and increasingly skeptical toward their grand plans. In other words, post-9/11 America looks a lot like pre-9/11 America. That’s something to be thankful for on the anniversary of a grim day.
(cross-posted at Cato@Liberty)
I was on TV again.
Charlie Savage, your go-to source on this issue, has an article in the NYT on the subject today, paying particular attention to a speech Sotomayor gave in March 2003.
Judge Sonia Sotomayor expressed skepticism in March 2003 about the expanded government surveillance powers in the USA Patriot Act, citing what she referred to as its broader authority “to impose nationwide wiretaps with little judicial supervision” and to monitor Internet use in search of terrorists.
On the other hand,
Judge Sotomayor did seem to indicate that some policies were on firmer legal footing. For example, she said that “one can certainly justify” detaining enemy combatant suspects “in secret” and giving them different legal rights than criminals “under precedents and current law.”
All in all, recognizing that the speech was given in March ’03 (Iraq War month, a time when crazy hung heavy in the air) I still see some reasons for cautious optimism on this issue.
Here’s yesterday’s Examiner column on terrorism panic, liberal edition:
The liberal overreaction to the crimes of two despicable “lone nuts” demonstrates that the Left is just as susceptible to terrorism panics as the Right. But maybe liberals are right that there’s a “teachable moment” for conservatives here, even if it isn’t the lesson Rich and Kos intend.
It’s worth thinking about how much worse off we’d be in the midst of a burgeoning “militia panic,” had the Bush administration’s radical view of executive power become the law of the land.
After 9/11, George Bush and Dick Cheney argued that the president could do what he deemed necessary to fight terrorism, and any laws to the contrary could be nullified by his Magic Scepter of Inherent Authority. Most conservatives backed the president, insisting that civil liberties at home wouldn’t suffer if we allowed him unlimited power in foreign affairs.
But the Bush team always maintained that those powers could be used on the home front as well. In congressional testimony in 2006, then-attorney general Alberto Gonzales suggested that the president had inherent authority not only to wiretap international calls without a warrant, but also to listen in onAmericans’ domestic communications.
Conservative defenders of so-called “enhanced interrogation” are rarely able to identify the “ticking time bomb” scenarios they insist make torture necessary. But last week, Scott Roeder, Dr. Tillman’s murderer, told reporters that “similar events” were being planned even now. Might a little waterboarding loosen his tongue?
in April 2009, Judge Sotomayor delivered a speech on how federal judges look at foreign and international law that suggested she might take a more conservative position on that topic than Justice Souter.
She said that individuals had no right to file a lawsuit to enforce a treaty and that ratified treaties were not legally binding unless Congress separately passed a statute to do so. Treaties usually have effect, she said, only if the president and Congress choose to respect such obligations as a matter of politics, not law.
“Even though Article IV of the Constitution says that treaties are the ‘supreme law of the land,’ in most instances they’re not even law,” she said.
That principle, she said, explained the outcome of a high-profile 2008 Supreme Court ruling, Medellin v. Texas, which involved an International Court of Justice ruling that some Mexican inmates on death row in Texas should get new sentencing hearings because the authorities failed to help them get help from the Mexican Consulate, contrary to a treaty the United States had ratified.
But the Supreme Court ruled that the international court’s decision had no legal force and that the treaty was not binding, because Congress never passed a statute explicitly making it domestic law.
The ruling, Judge Sotomayor said, “surprised many human rights groups and civil liberties groups” but was “premised on very traditional American law principles.”
So she would have ruled against the Mexican inmates, disappointed the human rights groups and upheld a limited view of the treaty power. It’s almost like she’s not some kind of crazy left-wing radical.
…that’s my DC Examiner column for this week. Excerpt:
The Second Circuit, Sotomayor’s home for the last 11 years, gets few national security cases. But what we can glean from three key cases she’s participated in suggests she agrees with former Justice Sandra O’Connor that the War on Terror “is not a blank check for the president.”
A Justice Sotomayor is unlikely to move in lockstep with the ACLU in this area. In Cassidy v. Chertoff (2006), she rejected a Fourth Amendment challenge to post-9/11 security searches conducted by a ferry operator acting at the behest of the Bush administration.
But in 2008’s Doe v. Mukasey, she joined two colleagues to strike down provisions of the Patriot Act related to National Security Letters (NSL). NSLs allow the FBI to seize private customer information from ISPs and other businesses, and place the recipient under a “gag order,” preventing disclosure of the demand.
Still before the Second Circuit is the case of Maher Arar, a Canadian citizen sent to Syria under the U.S. government’s extraordinary rendition program and tortured there. At oral argument last December, Sotomayor questioned the administration’s lawyer sharply: “So the minute the executive raises the specter of foreign policy, it is the government’s position that that is a license to torture?”
A thin record, but one more promising on these issues than Roberts’ or Alito’s. Incidentally, Clarence Thomas–who’s otherwise libertarians’ favorite Justice, and for pretty good reasons–is the worst of the worst on executive power issues. His dissent in Hamdi alone puts Scalia ahead of him as “least bad Supreme Court Justice.”
The Sotomayor nomination isn’t a week old yet, and I’m already bored with reading about it. I don’t see what people are so exercised about, pro or con. Yeah, I don’t like the comment about “wise Latina woman” making better decisions, and I don’t think it’s defensible (or at least I haven’t read any compelling defenses of it). Otherwise, I can’t see why this particular choice merits all the screeching. (Also, conservatives whose favorite justice is Clarence Thomas shouldn’t be heard to complain about Sotomayor’s lack of qualifications. No doubt her ethnicity was, as with Thomas, a but-for cause of her selection, but she has more experience on the bench and a more distinguished academic record than Thomas did).
As Ezra Klein points out “the Sotomayor fight” is a misnomer:
The last nominee to actually be defeated — Harriett Miers was withdrawn, remember, and withdrawn due to conservative unrest — was Robert Bork. And he was a conservative choice facing a Senate with 55 Democrats. Sotomayor is a Democratic president’s nominee who will come before a Democratic Senate. She won’t be “Borked” because, where Bork began 5 votes down, she begins 10 votes up. If Bork had enjoyed 15 more easy votes, he’d be Justice Bork today.
As such, there are certain safe predictions we can make: Barring imperfect vetting on the part of the majority, the final nominee will be pro-choice. Will be sympathetic to labor. Will be sympathetic to the federal role in regulation. Will be, in sum, the sort of Justice you’d expect from a left-of-center president and a left-of-center Senate.
I don’t like any of that stuff. And Richard Epstein provides reason to believe she may be worse than the average Democratic judicial nominee on property rights. That aside, the numbers in the Senate make it clear that, no matter what, we were always going to end up with a Justice who’d make conservatives and libertarians unhappy.
But there are other areas on which the average Democratic nominee is likely to be better than the average Republican, areas like criminal procedure and executive power. In those areas, from a libertarian perspective, maintaining a 5-4 conservative/liberal balance on the Court, is a good thing. I always thought that “getting more judges like Roberts and Alito” was a lousy reason to pull the lever for the Rs in November, particularly if you care about checks on executive power.
In his terrific book Takeover, Charlie Savage suggests that there was method behind the apparent madness of the Miers nomination:
why did Bush nominate Miers? The conventional wisdom was that the fiasco was simply the result of Bush’s feckless enjoyment of the power his office gave him to reward his friends. But in fact, Miers was a sound pick by the Bush-Cheney administration on an issue about which they cared deeply: executive power. Bush needed to pick a female justice for political reasons, but executive branch experience was almost nonexistent in the resumes of the female conservative appeals court judges and state supreme court judges favored by conservative legal activists. Miers, however, could be counted on to embrace Bush’s expansive view of presidential powers.
So too with Chief Justice Roberts. Savage reviewed an enormous trove of documents prepared by Roberts when he worked in the Reagan Justice Department, and found that Roberts was an even more enthusiastic supporter of executive power than one would naturally expect to find in Reagan’s DOJ. Tasked with analyzing the Presidential Records Act, the post-Nixon reform establishing that presidential documents are the people’s property, and allowing public access to such documents, Roberts “made clear that he loathed [the Presidential Records Act], believing it to be an unconstitutional infringement on the presidency’s power to keep information secret.” Savage writes that Roberts also
pressed to expand the president’s ability to govern in secret, pushing to roll back the Federal Advisory Committee Act… [and] warn[ed] against even appearing to endorse the idea of ‘freedom of information,’ lest it be construed as suggesting that the Freedom of Information Act was a good thing. He opposed issuing any presidential documents in connection with the War Powers Resolution that were worded in such a way as to concede that Congress had a role in deciding when military hostilities could begin or end.
There’s no denying that from a libertarian/constitutionalist perspective, McCain’s prospective nominees would have been better on some issues than either Obama’s or Clinton’s. McCain’s judges would likely have been better on campaign finance reform and the thus-far fruitless effort to restore limits on Congress’s power to regulate using the Commerce Clause. Despite Roberts’s vote in the Oregon Right-to-Die case, they would probably be better on federalism, depending on whose ox is getting gored.
There is little question however, that they would have been far worse than Democratic appointees on questions like, can the president carry out a wiretapping program in defiance of federal law, and forever shield the details of that program behind the State Secrets doctrine?
As Robert Schlesinger points out, the latter issue may well end up before the Supreme Court. We don’t know where Sotomayor stands on that issue, but I’m guessing she won’t be as bad on it as another Roberts or Alito.
In Tuesday’s Examiner column, I argue that if the current veep’s gaffetasticness leads to a rift between POTUS and VPOTUS, that would be a good thing. Excerpt:
A new book by Newsweek’s Richard Wolffe reports that President Obama is dismayed by “his vice president’s indiscipline.” Who can blame him? At the height of the Swine Flu panic, our excitable veep fanned the fear on NBC’s Today Show, squeaking that, “If one person sneezes, it goes all the way through the aircraft!”
A month before, at a dinner with journalists, Biden apparently let slip the location of the secret bunker used by Dick Cheney after 9/11. Last week, the Christian Science Monitor offered this sardonic headline: “Biden Speaks at Wake Forest—does not disclose nuclear launch codes.”
“Between brain and mouth there is no interlocutor,” Sopranos character Hesh Rabkin once said of matriarch Livia Soprano, and so it is with Joe. Are Biden’s gaffes leading the president to keep VPOTUS at arm’s length? We should hope that’s the case, and not just because of this particular vice president’s verbal incontinence.
The modern conception of the vice-presidency—where the veep serves as chief advisor and virtual copresident—is a dramatic departure from the veep’s constitutional role. Worse, it clouds responsibility and makes accountability more difficult. After eight years of Dick Cheney, the last thing America needs is another Imperial Vice Presidency.
Jonathan Mahler has a smart, informative feature on executive power in this week’s New York Times Magazine. I object only to the title, “After the Imperial Presidency.” As Mahler’s piece makes clear, the title could have used a question mark, at the very least.
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.
Some prominent commentators–Jack Goldsmith and Jeffrey Rosen among them–have noted the “irony” that an administration monomaniacally committed to the growth of presidential power has allegedly weakened the presidency with its unilateralism and contempt of Congress. Given the powers the office retains and continues to accrue, that’s an irony that’s hard to savor. As Mahler notes, “it’s worth keeping in mind that in the final year of Bush’s presidency — while facing a Democratic Congress and historically low approval ratings — he was able to push through a federal bailout bill that vested almost complete control over the economy in the Treasury secretary (who reports to the president), not to mention a major rewriting of the 1978 Foreign Intelligence Surveillance Act that will make it easier for the White House to spy on American citizens.”
Indeed, Mahler documents how political realities–and in Obama’s case, perhaps, the prospect of actually taking power–led both candidates to move away from their early criticisms of Bush-style “deciderism,” and flip flop on torture (McCain) and wiretapping (McCain and Obama).
In explaining the post-9/11 growth of executive power, Mahler properly focuses on the twin problems of congressional cowardice and poisonous partisanship. In the Bush years, all too many congressional Republicans put party unity over institutional responsibility. That’s a common vice under unified government, which may be why Mahler hardly sounds optimistic when he quotes Senator Levin: “When I asked Levin what needs to happen for Congress to take back the rest of the ground that it ceded to the executive branch during the Bush years, he replied predictably, ‘We need a Democrat in the White House.’”
Ah, the town-hall debate format: that wonderful Oprah-style arrangement in which a hand-picked audience of allegedly normal Americans gets to lob questions at the candidates, who perch awkwardly on directors’ chairs, trying to look warm and approachable. What could be phonier?
–The questions will be culled from a group of 100 to 150 uncommitted likely voters in the audience and another one-third to come via the Internet. Brokaw selects which questions to ask from written queries submitted prior to the debate.
–The Gallup Organization makes sure the questioners reflect the demographic makeup of the nation.
–An audience member isn’t allowed to switch questions and will not be allowed a follow-up either. His or her microphone will be turned off after the question is read and a camera shot will only be shown of the person asking — not reacting.
–The moderator may not ask followups or make comments.
–McCain and Obama will be provided with director’s chairs, but they’re also allowed to stand. They can’t roam past their “designated area” marked on the stage and are not supposed to ask each other direct questions.
Even so, these things occasionally give rise to memorable moments. My favorite, in terms of revealing how far we’ve drifted from the Framers’ modest, limited conception of the president’s role, was the “ponytail guy” incident from a 1992 town-hall-style debate. This chopped-up YouTube clip will give you a little sense of what that was like.
The demand for presidential salvation hit its rhetorical nadir in the 1992 presidential debates, when a ponytailed social worker named Denton Walthall rose to ask Ross Perot, Bill Clinton, and President Bush the following question:
“The focus of my work as a domestic mediator is meeting the needs of the children that I work with, by way of their parents, and not the wants of their parents. And I ask the three of you, how can we, as symbolically the children of the future president, expect the two of you, the three of you to meet our needs, the needs in housing and in crime and you name it….”
“You name it,” indeed. Walthall followed up by asking,
“Could we cross our hearts; it sounds silly here, but could we make a commitment? You know, we’re not under oath at this point, but could you make a commitment to the citizens of the United States to meet our needs, and we have many, and not yours. Again, I have to repeat that, it’s a real need, I think, that we all have.”
Denton Walthall came in for a fair amount of criticism on the op-ed pages and talk radio airwaves. Yet under the hot lights, none of the candidates risked chastising him, however gently, for having an overly capacious view of presidential responsibility. Instead, they accepted his premise. Ross Perot said he’d take Walthall’s pledge, “no hedges, no ifs, ands and buts.” Governor Clinton argued with Perot about who was more authentic and less dependent on “spin doctors,” and noted that as governor, he’d “worked 12 years very hard… on the real problems of real people.” “It depends on how you define it,” President George H.W. Bush stammered his reply to Walthall,
“… I mean I — I think, in general, let’s talk about these — let’s talk about these issues; let’s talk about the programs, but in the Presidency a lot goes into it. Caring is — goes into it; that’s not particularly specific; strength goes into it, that’s not specific; standing up against aggression, that’s not specific in terms of a program. So I, in principle, I’ll take your point and think we ought to discuss child care, or whatever else it is.”
It’s hard to blame H.W.’s stammering on the Bush family’s notorious difficulty with words. Sad as it is to contemplate, the Bush-Walthall colloquy accurately described what by then had long been the dominant conception of the president’s role in modern American life. That role contains multitudes.
It’s “not specific.” It’s “strength” “caring” “housing” “crime” “standing up against aggression,” “child care—or, indeed, “whatever else it is.” It’s a conception that’s fundamentally incompatible with limited, constitutional government.
IFILL: Governor, you mentioned a moment ago the constitution might give the vice president more power than it has in the past. Do you believe as Vice President Cheney does, that the Executive Branch does not hold complete sway over the office of the vice presidency, that it it is also a member of the Legislative Branch?
PALIN: Well, our founding fathers were very wise there in allowing through the Constitution much flexibility there in the office of the vice president. And we will do what is best for the American people in tapping into that position and ushering in an agenda that is supportive and cooperative with the president’s agenda in that position. Yeah, so I do agree with him that we have a lot of flexibility in there, and we’ll do what we have to do to administer very appropriately the plans that are needed for this nation. And it is my executive experience that is partly to be attributed to my pick as V.P. with McCain, not only as a governor, but earlier on as a mayor, as an oil and gas regulator, as a business owner. It is those years of experience on an executive level that will be put to good use in the White House also.
IFILL: Vice President Cheney’s interpretation of the vice presidency?
BIDEN: Vice President Cheney has been the most dangerous vice president we’ve had probably in American history. The idea he doesn’t realize that Article I of the Constitution defines the role of the vice president of the United States, that’s the Executive Branch. He works in the Executive Branch. He should understand that. Everyone should understand that.
And the primary role of the vice president of the United States of America is to support the president of the United States of America, give that president his or her best judgment when sought, and as vice president, to preside over the Senate, only in a time when in fact there’s a tie vote. The Constitution is explicit.
The only authority the vice president has from the legislative standpoint is the vote, only when there is a tie vote. He has no authority relative to the Congress. The idea he’s part of the Legislative Branch is a bizarre notion invented by Cheney to aggrandize the power of a unitary executive and look where it has gotten us. It has been very dangerous.
If I’d have known I could actually get a question into the debate, I’d have asked Joe Biden how many working class guys he meets riding the Acela up to Wilmington or had Sarah Palin name all the post-WWII presidents in order.
Biden made more of an attempt to answer the question Ifill asked, but his answer doesn’t make much sense. Uh, Joe, Article I covers the legislative branch. And the veep’s only power is legislative, presiding over the Senate and breaking tie votes. The Constitution doesn’t grant him any executive power.
And yet here’s Dick Cheney, co-president from at least 9/11/01 on, giving orders to shoot down planes, running large swathes of the War on Terror, and even exercising formally delegated executive powers over the control of information.
As Reynolds suggests, it’s constitutionally suspect for the president to delegate executive power to officials he can’t remove from office. He also notes that
there may be practical reasons to limit vice presidential involvement in day-to-day executive business regardless of whether we accept the characterization of the Vice Presidency as a legislative office or not. Whether or not the Vice President is seen as a legislative officer, the office of Vice President is something special. The Vice President is, after all, primarily meant to serve as a sort of spare President, and—as with spare tires or backup servers—it may be safest not to put the spare into ordinary service before it’s needed. Presidents are lost in three ways: death, resignation, and impeachment. Vice presidential involvement in policy has the po-tential to put the “spare” role at risk in at least two of these contexts. When Presidents resign or are impeached, it is often over matters of policy.
Although the risk that a Vice President will be involved in the precipitating events is hard to estimate, it is certainly higher for an activist Vice President than it will be for a Vice President playing a traditionally quiescent role. Though talk of impeaching the current occupants of either office is unlikely to come to anything, it illustrates the risks…. Had Carter been impeached or forced to resign as a result of the Iran debacle, Mondale’s public distance would have been important in preserving his ability to govern.
Whatever one thinks of the Bush impeachment talk of the last few years, two and a half impeachments over our entire constitutional history is probably fewer than we ought to have had. And impeachment becomes more difficult when the president’s replacement is deeply implicated in the activities considered grounds for impeachment.
And there are other problems with a Cheney-style vice presidency as well, problems that ought to be of particular concern to unitary executive fans. One of the more convincing arguments offered by Hamilton against the idea of a plural executive is that “it tends to conceal faults, and destroy responsibility.” He continues,
The circumstances which may have led to any national miscarriage or misfortune are sometimes so complicated that, where there are a number of actors who may have had different degrees and kinds of agency, though we may clearly see upon the whole that there has been mismanagement, yet it may be impracticable to pronounce to whose account the evil which may have been incurred is truly chargeable.
That’s certainly been the case over the last seven years. As Barton Gellman has recently shown, information about the so called Terrorist Surveillance Program was so tightly held among Vice President Cheney, David Addington, and their administration allies, that President Bush was unaware until the very last moment that the top echelon of his Justice Department was ready to resign over the illegality of the original program. When an activist vice president deliberately keeps the president in the dark, it can be difficult to discern where the buck really stops.
At the constitutional convention, when Elbridge Gerry objected to the veep’s legislative role, Roger Sherman made the salient point that “If the vice-President were not to be President of the Senate, he would be without employment.” Our early vice presidents didn’t play an important role in the executive branch. Washington kept John Adams at arm’s length from policymaking, and Adams was also frustrated in his attempts to actively manage the Senate as presiding officer. The best view of the vice-president’s constitutional role is that the veep really is supposed to be a bucket of warm [fluid] unless and until he or she is called upon to assume office. And there’s good reason for that. Here’s hoping that Vice President Biden or Vice President Palin will spend less time making policy and more time attending funerals.
Look ma, I’m in the New York Times, with a question for the aspiring veeps:
The claim by Dick Cheney that he was exempt from certain disclosure requirements because the vice president was a “legislative officer” has been greeted with outrage. But the main power the Constitution grants the vice president is a legislative one — breaking a tie vote in the Senate.
So, Governor Palin, Senator Biden, doesn’t Mr. Cheney have a point?
But, then, if the vice president is a legislative officer, how can he wield the vast executive powers that Mr. Cheney has exercised, including orchestrating and supervising a warrantless wiretapping program?
Can the vice president shift between branches at his convenience? If not, what, in your view, is the constitutional status of the vice presidency?
— GENE HEALY, the author of “The Cult of the Presidency: America’s Dangerous Devotion to Executive Power”
Giving credit where it’s due, I should mention this smart, short law review article by Glenn Reynolds, “Is Dick Cheney Unconstitutional?”
Friend and Blogfather Radley Balko has a good one for Joe Biden:
Senator Biden, you’ve been one of the Senate’s most ardent drug warriors. You helped create the office of “drug czar”; backed our failed eradication efforts in South America; encouraged the government to seize the assets of people merely suspected of drug crimes; pushed for the expanded use of racketeering and conspiracy laws against drug offenders; advocated the use of the military to fight the drug war; and sponsored a bill that holds venue owners and promoters criminally liable for drug use by people attending concerts and events.
Today, illicit drugs are as cheap and abundant as they were decades ago. Would you agree that the anti-drug policies you’ve championed have failed? If not, how have they succeeded?
— RADLEY BALKO, a senior editor at Reason magazine
I have a piece up on National Review Online today about Joe Biden’s sorry record on the Iraq War and what it means for the future of Congress’s (increasingly theoretical) power to declare war. The column’s hooked to tomorrow’s debate, but who knows if that’s going to happen.
This week, the Washington Post ran two excerpts from Barton Gellman’s new book Angler: The Cheney Vice Presidency, which describes the fight over warrantless wiretapping in greater detail than we’ve had before. We still don’t know the precise reach of the original (pre-2004) program, nor do we have the classified legal analysis prepared by John Yoo. But Gellman’s account makes you wonder just how far the program and the legal theory went, given that it horrified men like Attorney General John Ashcroft, Deputy A.G. James Comey, and Office of Legal Counsel head Jack Goldsmith–all staunch conservatives who were perfectly comfortable with ambitious theories of executive power, all of whom (along with FBI Director Robert Mueller and sundry other top Justice officials) were ready to resign over the original warrantless wiretapping program. (Marty Lederman made a similar point last year, when Comey testified before the Senate Judiciary Committee).
Ashcroft’s record on civil liberties and executive power is fairly well known. And keep in mind who Goldsmith and Comey are. Goldsmith says plainly that he’s “not a civil libertarian,” and he got the OLC job on John Yoo’s recommendation. And as a US Attorney in New York, James Comey was quite comfortable with pushing the law to its limits and beyond. He prosecuted Martha Stewart for misleading federal investigators about behavior that wasn’t a crime, and he even seriously considered pursuing mail and wire fraud charges against disgraced reporter Jayson Blair for the hitherto unknown crime of making stuff up in the New York Times (Bill Kristol, beware). But the original program was a bridge too far even for them.
Gellman describes a “come to Jesus” meeting orchestrated by David Addington, Alberto Gonzales and Dick Cheney, to get the Justice Department to reauthorize the surveillance program:
Comey, Goldsmith and Philbin found the titans of the intelligence establishment lined up, a bunch of grave-faced analysts behind them for added mass. The spy chiefs brought no lawyers. The law was not the point. This meeting, described by officials with access to two sets of contemporaneous notes, was about telling Justice to set its qualms aside.
The staging had been arranged for maximum impact. Cheney sat at the head of Card’s rectangular table, pivoting left to face the acting attorney general. The two men were close enough to touch. Card sat grimly at Cheney’s right, directly across from Comey. There was plenty of eye contact all around.
This program, Cheney said, was vital. Turning it off would leave us blind. Hayden, the NSA chief, pitched in: Even if the program had yet to produce blockbuster results, it was the only real hope of discovering sleeper agents before they could act.
“How can you possibly be reversing course on something of this importance after all this time?” Cheney asked.
“I will accept for purposes of discussion that it is as valuable as you say it is,” Comey said. “That only makes this more painful. It doesn’t change the analysis. If I can’t find a lawful basis for something, your telling me you really, really need to do it doesn’t help me.”
“Others see it differently,” Cheney said.
There was only one of those, really. John Yoo had been out of the picture for nearly a year. It was all Addington.
“The analysis is flawed, in fact facially flawed,” Comey said. “No lawyer reading that could reasonably rely on it.”
Gonzales said nothing. Addington stood by the window, over Cheney’s shoulder. He had heard a bellyful.
“Well, I’m a lawyer and I did,” Addington said, glaring at Comey.
“No good lawyer,” Comey said.
Bonus Angler revelation: Former House Majority Leader Dick Armey suggests that Cheney lied to him to keep Armey from going all wobbly on the Iraq War vote:
The threat Cheney described went far beyond public statements that have been criticized for relying on “cherry-picked” intelligence of unknown reliability. There was no intelligence to support the vice president’s private assertions, Gellman reports.
Armey had spoken out against the coming war, and his opposition gave cover to Democrats who feared the political costs of appearing weak. Armey reversed his position after Cheney told him, he said, that the threat from Iraq was “more imminent than we want to portray to the public at large.”
Cheney said, according to Armey, that Iraq’s “ability to miniaturize weapons of mass destruction, particularly nuclear,” had been “substantially refined since the first Gulf War.”
Cheney linked that threat to Hussein’s alleged ties to Al Qaeda, Armey said, explaining “we now know they have the ability to develop these weapons in a very portable fashion, and they have a delivery system in their relationship with organizations such as Al Qaeda.”
“Did Dick Cheney . . . purposely tell me things he knew to be untrue?” Armey said. “I seriously feel that may be the case. . . . Had I known or believed then what I believe now, I would have publicly opposed [the war] resolution right to the bitter end.”