Archives for the 'Executive Power' Category
There’s a new poll out from the Associated Press and the National Constitution Center that shows “Americans strongly oppose giving the president more power at the expense of Congress or the courts, even to enhance national security or the economy.” Which is certainly good news, but it doesn’t mean there’s deep public support for de-imperializing the presidency. As the survey itself shows, only a minority of Americans thinks our current, gargantuan presidency is “too powerful.”
Which is one reason why there’s been very little debate over presidential power in campaign over the last few months (I know, because I’ve been looking fruitlessly for op-ed news hooks). Even after the Bush years, presidential power is not a pressing electoral issue.
Last December, Charlie Savage did the electorate a service by getting all the presidential candidates to go on the record with their views on executive power. (Here are McCain, Obama, and Biden’s answers.) But the voters don’t punish candidates who break these promises like they do presidents who break a “no new taxes” pledge. If the voters did, the candidates would have worried more about flip-flopping on the wiretapping question, but both McCain and Obama felt they could do it with little difficulty.
So sure, around 2/3s of the respondents to the AP/National Constitution Center poll oppose further expansions of executive power. But how people answer broad, abstract questions about governance is one thing; what they actually demand from potential presidents is another thing entirely. If the rhetoric of this presidential campaign is any indication, voters continue to respond to the idea of the president as a combination miracle-worker-cum-national parent.
In his acceptance speech, John McCain professed humility, only moments after a video montage that suggested God rescued him from a carrier-deck fire so he could be president someday. And, judging by Rudy Giuliani’s keynote address, McCain will bridge the Mommy Party/Daddy Party divide, becoming a all-purpose national parent: “And we can trust him to deal with anything, anything that nature throws our way, anything that terrorists do to us…. and we will be safe in his hands, and our children will be safe in his hands.” He’s got the whole world in his hands.
This expansive vision of presidential responsibility is incompatible with limited government. And so long as it prevails, we can’t take much comfort in the fact that Americans tell pollsters they’d like limits on presidential power.
More bad news here.
Claremont Institute fellow Michael M. Uhlmann has a dismissive review of The Cult of the Presidency in the current issue of National Review: “It’s Not Just the Executive,” September 15, 2008. (Here it is if you get NR Digital, otherwise it’s available in the print edition). It seems to me that the review largely consists of inaccurate characterizations, unsupported assertions, and non sequiturs. But I’m understandably biased, so check it out and judge for yourself.
Uhlmann writes that “The bulk of Healy’s book is devoted to various sins, offenses and negligences of the Bush administration.” That’s a bizarre statement, given that the book has nine chapters and an introduction, and only three of those chapters cover GWB’s tenure. In fact, the “bulk of the book” is devoted to demonstrating that, as I write in Chapter Two, “the problems of the modern presidency did not begin when George W. Bush emerged victorious from 2000’s seemingly interminable Battle of the Chads” and that–despite what some on the Left seem to believe–those problems will not vanish in January 2009 when he heads back to the ranch to cut brush.
The book is a history of the presidency’s transformation from the important, but constitutionally limited office the Framers designed to an extraconstitutional monstrosity charged with moving the masses and saving the world. But by beginning his review with a discussion of “unhinged” Bush critics, and mischaracterizing the book’s contents, Uhlmann has undoubtedly left NR readers with the impression that The Cult of the Presidency is yet another partisan screed against the current administration. Move along, nothing to see here.
That’s a shame, because conservatives could surely benefit from reexamining their decades-long affinity for strong presidencies. There’s nothing particularly conservative about investing vast unchecked power in the hands of whichever professional politician manages to claw his way to the top in a modern presidential contest. As Russell Kirk put it, “Knowing human nature for a mixture of good and evil, the conservative does not put his trust in mere benevolence. Constitutional restrictions, political checks and balances, adequate enforcement of the laws, the old intricate web of restraints upon will and appetite—these the conservative approves as instruments of freedom and order.” And if principled reasons aren’t good enough, the fact that Republicans, let alone conservative Republicans, are unlikely to dominate the electoral college in the coming decades ought–like the prospect of a hanging–to concentrate the mind somewhat.
Uhlmann is willing to concede that the Bush administration’s claims of uncheckable authority over the detention and treatment of terrorist suspects “entail arguable legal propositions.” Which is gracious of him. But he provides very little argument for his view that the Framers envisioned a president with anything like the powers the current president–or others before him–have claimed. What arguments he provides often consist of offering innocuous and uncontroversial historical claims about 18th-century Americans’ views of executive power–as if those claims establish that the modern presidency is the constitutional presidency. In each case, he falls a few premises short of a syllogism.
Yes, the Federalist suggests, as Uhlmann notes, that “legislative excess is the danger chiefly to be guarded against in a republic.” But that was so, as Madison explains in No. 48, because the government the Constitution envisioned would be fundamentally different from one in which “numerous and extensive prerogatives are placed in the hands of a hereditary monarch.” Legislative power was more to be feared precisely because under the American Constitution “the executive magistracy is carefully limited, both in the extent and the duration of its power.”
Yes, the Framers sought to avoid some of the mistakes made in some of “the state constitutions adopted between 1776 and 1787″ and to create a relatively vigorous and independent executive. But there’s quite a distance between that fact and the current administration’s claims that Congress cannot restrain the president from ordering torture and that the president has the power to permanently imprison American citizens without charges or legal process. (Uhlmann treats these issues at greater length in an extensive essay on presidential powers in a recent edition of the Claremont Review, in which, it seems to me, the verbiage-to-evidence ratio is also fairly high.)
Then there’s Uhlmann’s painfully obvious argument that “It’s Not Just the Executive” that’s a problem in our modern welfare-warfare state. Well, yes. It’s not clear who Uhlmann’s arguing with when he points out “the size and arbitrariness of government in general” are intertwined with concerns about a powerful presidency, and that the growth of presidential power would not have been possible without the collaboration of Congress and the judiciary. I make the same points repeatedly and at length throughout the book.
But the book focuses on the presidency because the president has become the focal point of Americans’ dangerously unrealistic expectations about what government can deliver, at home and abroad. As the political scientist Theodore Lowi explained (and as I discuss in the book), the post-New Deal state pledged itself to the constant delivery of goods and benefits, with the public looking most of all to the president to meet the key test of the new regime’s legitimacy: “service delivery.” The emerging “Second Republic of the United States” was one in which, as Lowi sums up, “the system of government had become an inverted pyramid, with everything coming to rest on a presidential pinpoint.”
So the presidency is important. It merits special attention, perhaps especially from conservatives, given their longstanding myopia about the dangers of presidential power. For too long the Right has been wedded to the odd proposition that next to the “Imperial Congress” and the “Imperial Judiciary”, the executive branch–the branch with guns–is the least dangerous branch. I’m glad that NR reviewed the book, and I didn’t expect an uncritical embrace of my perspective. But I would have preferred a serious discussion of the issues the book raises.
I recently finished Jane Mayer’s excellent new book The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals. I thought I couldn’t read another thing about Addington, Yoo, and company, but Mayer’s book drew me in, and taught me a lot. There’s a lot I’d like to highlight from the book and blog about, but probably won’t have time to get to. But here’s an interesting detail she mentions in passing. You may recall this exchange between John Yoo and John Conyers when Yoo was called to testify before the House Judiciary Committee recently:
Conyers: Could the President order a suspect buried alive?
Yoo: Uh, Mr. Chairman, I don’t think I’ve ever given advice that the President could order someone buried alive. . .
Conyers: I didn’t ask you if you ever gave him advice. I asked you thought the President could order a suspect buried alive.
Yoo: Well Chairman, my view right now is that I don’t think a President . . . no American President would ever have to order that or feel it necessary to order that.
Conyers: I think we understand the games that are being played.
I took Conyers’ question to be (useful) hyperbole, intended to draw out the virtually limitless theory of presidential power Yoo’s perspective entails–much like Professor David Cassell’s earlier question to Yoo: “If the president deems that he’s got to torture somebody, including by crushing the testicles of the person’s child, there is no law that can stop him?” Yet in the course of discussing acting OLC head Dan Levin’s attempt to draft a replacement memo for Yoo’s repudiated August 2002 torture memo, Mayer writes:
“Levin refused, however to give the administration carte blanche. He had heard rumors that his predecessor, John Yoo, had orally approved especially questionable CIA practices, including the use of mind-altering drugs and mock-burials.” (Emphasis added).
“In no part of the Constitution is more wisdom to be found,” James Madison wrote in 1793, “than in that clause which asks the president to give Congress a courtesy call whenever he’s picked a new country to invade.” Well, no, that’s not actually what he said. It went more like this:
In no part of the constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department. Beside the objection to such a mixture to heterogeneous powers, the trust and the temptation would be too great for any one man.
How to check that temptation? In 1973, Congress tried the War Powers Resolution, a deeply flawed piece of legislation that has never so much as inconvenienced a president bent on war. Former Secretaries of State Jim Baker and Warren Christopher–and a bipartisan panel of DC bigwigs–have a new answer: semi-mandatory consultation with Congress backed up by a dread “resolution of disapproval” (that the president can veto!). Somehow I don’t think this is going to work.
I haven’t had a chance to read the full report yet, but judging from the coverage and the op-ed Baker and Christopher penned for yesterday’s Times, the Commission’s proposal seems like an exercise in High Broderism. For some serious attempts at putting teeth in the War Powers Resolution, check here and here.
However, as I explain in the Cult of the Presidency, I’m skeptical that any of these megastatute solutions are going to work. Because no Congress can truly bind a future Congress and no statute can force the courts to resolve separation of powers fights they’d rather duck, such legislative solutions tend to be about as effective as a dieter’s note on the refrigerator. Unless and until ordinary voters demand that Congress stand and be counted on issues of war and peace–and defund unauthorized wars–we’ll continue as before. Hey, maybe we are the change we’ve been waiting on.
Sam Tanenhaus has a sidebar in today’s NYT Week in Review section called “When Reining in an Imperial President Was the Conservatives’ Cause.” “Odd though it may seem, ideological conservatives used to be fierce critics of “executive supremacy,” he writes.
Tanenhaus, a longtime student of conservative intellectual history, is absolutely right. In Cult, I have a section entitled “How Conservatives Learned to Stop Worrying and Love the Imperial Presidency,” that covers the ideological shift in detail. For a taste, click here.
The right-wing intellectuals who coalesced around William F. Buckley’s National Review associated powerful presidents with activist liberalism: the New Deal, the New Frontier, the Great Society. Therre was a time when you could hear conservative heroes like Barry Goldwater say the sort of things that would get Sean Hannity to call for treason trials today. Goldwater wrote in 1964 that:
Some of the current worship of powerful executives may come from those who admire strength and accomplishment of any sort. Others hail the display of Presidential strength … simply because they approve of the result reached by the use of power. This is nothing less than the totalitarian philosophy that the end justifies the means…. If ever there was a philosophy of government totally at war with that of the Founding Fathers, it is this one.
Heck, it wasn’t too long ago that you could hear John Yoo complain about “The Imperial President Abroad” in the Clinton years.
Friend and fellow Hoya Jerry Russello has a nice review of Cult of the Presidency at InsideCatholic.com. Jerry’s the editor of the University Bookman, and the author of the highly praised Postmodern Imagination of Russell Kirk.
Anybody reading McCain’s answers to an executive-power questionairre published in the Boston Globe last December could be excused for thinking that a McCain administration would represent at least a slight departure from the Bush team’s extravagant theories of presidential prerogative. “I don’t think the president has the right to disobey any law,” he said when asked about FISA. Alas, it seems that McCain has lately discovered the wondrous penumbras and emanations that supposedly issue from Article II. Charlie Savage has the goods.
Jeremy Lott references the book in his column for the Politico this week: “Obama: Peacenik or Untested Warmonger?”
The NYT Sunday Book Review editors asked a gaggle of writers and intellectuals to recommend books for the candidates (and, by extension, the next president). The only one that stood out to me as particularly useful was a recommendation by Steven Pinker. He offers Mistakes Were Made (But Not by Me), in which “renowned social psychologists Carol Tavris and Elliot Aronson take a compelling look into how the brain is wired for self-justification. When we make mistakes, we must calm the cognitive dissonance that jars our feelings of self-worth. And so we create fictions that absolve us of responsibility, restoring our belief that we are smart, moral, and right—a belief that often keeps us on a course that is dumb, immoral, and wrong.” And that’s true–everyone else I know is exactly like that. Anyway, I thought I’d join others in blogland and offer my own recommendations.
It would be pompous to recommend my own book (which you’ll buy if you love America even a little bit). So instead I’ll offer a few in the spirit of the Pinker rec. These are books that influenced me a lot in writing my own. And there’s at least some chance they’d help anyone taking office to keep their bearings, assuming that person isn’t delusional, which is probably not a safe assumption because if so why are they running for president.
In any event, the first is Twilight of the Presidency by former LBJ aide George Reedy. Here’s what I wrote about it in my book:
In his 1970 book The Twilight of the Presidency, George Reedy warned that the environment surrounding the chief executive was enough to make even a well-grounded person delusional. Reedy arrived at that conclusion through close observation, having served as Lyndon Johnson’s press secretary from 1964-65 and later as special assistant to the president in 1968. It seems that Reedy did not entirely enjoy the experience. As a boss, Johnson was a “colossal son of a bitch,” oscillating unpredictably between sadistic abuse and kindness. Reedy has left us a painfully honest—and, at times, bitterly funny— depiction of the sociology of power. Former Nixon aide John Dean, who knows something about the darker side of the West Wing environment, calls Twilight “the best book on the presidency.”
As Reedy writes in Twilight:
There is no position in the United States in which the isolation from equals is so complete as the presidency. To be the absolute superior in status to everyone else encountered throughout the day is an effective form of isolation…. In many respects, it is an even more effective form of isolation than physical confinement. The prisoner doing a spell in solitary knows that he is cut off from other human beings. The president, however, is surrounded by large, adoring groups that give him the illusion of human contact when all they really do is act as an echo chamber for his thoughts.
Gerald Ford recognized that Groupthink and the Arrogance of Power were threats to a sanely administered presidency, and required that his top staffers read the book as a cautionary tale. Alas, given that two of his top staffers were Donald Rumsfeld and Dick Cheney, it seems not to have worked.
My second recommendation is hard to find: Bruce Buchanan’s The Presidential Experience: What the Office Does to the Man (1978). The psychological analysis in it is dated, long-distance, and not performed by a psychiatrist. But it’s an interesting exploration into/speculation about, the various pathologies that can accompany becoming “the most powerful man in the world” and still finding yourself powerless to meet expectations.
Finally, Theodore J. Lowi’s The Personal President: Power Invested, Promise Unfulfilled (1985). I hadn’t read Lowi’s book until halfway through my own, and discovered that he’d said almost everything that needed to be said about the modern presidency. Luckily he’d said it over two decades ago. Here’s a good summary of Lowi’s thesis:
In his new book Mr. Lowi shrewdly describes the Presidency as an increasingly ”plebiscitary” office. Its occupant uses television and polls to commune directly with the masses, bypassing such mediating institutions as Congress and the political parties. Having given our Presidents big power, we expect big things of them – especially in terms of ”service delivery,” which, Mr. Lowi writes, has displaced representation as the test of democracy and legitimacy. Despite the aggrandizement of the executive branch at Congress’s expense, though, there are still ”built-in barriers to presidents’ delivering on their promises.” The result is a dangerous cycle – substantive failure, followed by frantic White House efforts to create false images of success, followed by adventurism abroad, followed by further public disillusion – all of which forces the next President to turn the rhetorical heat up even higher.
Is it really too much to ask the candidates to check out these three books? I don’t think so. After all, our current prez reads around 90 books a year!
“It’s not for me to second-guess the president of the United States.”
–Rep. Tom Cole, chairman of the National Republican Congressional Committee, “reject[ing] the notion of a dramatic break with Bush.”
The Style section of today’s Washington Post features a terrific article about the National Security Archive, the nonprofit group dedicated to unearthing goverment secrets. The privately funded group, about 35 strong, uses the Freedom of Information Act to collect about 75,000 documents a year, which staffers analyze and then post on the website. The Archive’s greatest hits (see, e.g., here and here) demonstrate that as Patrick Henry put it, one should “never depend on so slender a protection as the possibility of being represented by virtuous men.” Don’t trust: verify.
One of my favorite documents on the site is the Operation Northwoods Memo, prepared by the Pentagon in the wake of the Bay of Pigs disaster:
titled “Justification for U.S. Military Intervention in Cuba” [the memo] was provided by the JCS to Secretary of Defense Robert McNamara on March 13, 1962, as the key component of Northwoods. Written in response to a request from the Chief of the Cuba Project, Col. Edward Lansdale, the Top Secret memorandum describes U.S. plans to covertly engineer various pretexts that would justify a U.S. invasion of Cuba. These proposals – part of a secret anti-Castro program known as Operation Mongoose – included staging the assassinations of Cubans living in the United States, developing a fake “Communist Cuban terror campaign in the Miami area, in other Florida cities and even in Washington,” including “sink[ing] a boatload of Cuban refugees (real or simulated),” faking a Cuban airforce attack on a civilian jetliner, and concocting a “Remember the Maine” incident by blowing up a U.S. ship in Cuban waters and then blaming the incident on Cuban sabotage.
Sounds like tinfoil-hat stuff, I know, but thanks to FOIA and the National Security Archive, you can check for yourself [.pdf]. But if Dick Cheney and Donald Rumsfeld had had their way, you couldn’t. As top aides to Gerald Ford 34 years ago, they urged the president to veto amendments strengthening FOIA (he did, and Congress overrode his veto). The Archive has the documents on that too.
John Derbyshire, author of, among other things, a very fine novel on a Chinese emigre’s obsession with our most Taoist of presidents, reviews Cult of the Presidency today on NRO. He likes it, and quotes from it liberally. Riffing off the book’s discussion of sycophantic White House staffers, he writes:
I have not so far heard that White House functionaries walk backwards away from the Presidential Presence, as is done in the royal courts of Britain and Japan, or get down on their knees and knock their heads on the floor in a full formal kowtow, as was the rule in Imperial China, but surely such protocols cannot be many years away.
That republican manners have decayed to a level of servility that would have embarrassed Elagabalus, is bad enough. That modern conservatives have accepted, even helped enable the process, is very depressing indeed. The belief in existential danger is no excuse. Even if we are all going to be murdered by fanatical terrorists, which I don’t for a moment believe, let’s at least die like free citizens of a free republic.
Derbyshire also writes
The thing most painful to recall is that when George W. Bush was running for the presidency in 2000, many of us believed and hoped that he would be an inconsequential president in the style of those bewhiskered late 19th-century snoozers. Bush’s affable mediocrity seemed well suited to another long spell of peace and prosperity.
I know exactly what he means. Part of me thinks there’s an alternate universe somewhere where the Twin Towers are standing, and George W. Bush became the sort of president about whom you could say, as Mencken did of Coolidge “he had no ideas and was not a nuisance”–that is, a great president.
…I’ve got a post on that voodoo that Yoo do so well.
After a half-year hiatus, I’ve relaunched my blog (with a spiffy redesign by Jerry Brito). One of the reasons for the relaunch is that I have a new book to promote, The Cult of the Presidency: America’s Dangerous Devotion to Executive Power, or, as I sometimes like to call it, “The Futility of Hope.” The official release date is May 1, but I got hard copies last week, and, after I got over being afraid to look at it for fear that “Presidency” would be misspelled on the cover, it was a great feeling (it’s my first book).
They say that when you’re writing a book, you should have a two-sentence answer at the ready in case people ask you what it’s about while you’re on the elevator. For a long time, mine was “it’s about the presidency. I’m against it.”
A somewhat longer and less flip answer is that when I started researching a couple of years ago, what I had in mind was a book about the post-9/11 Imperial Presidency. But the focus soon became much broader than that. The conventional narrative, which blames a cabal of neocons for the recent growth of executive power, seemed incomplete to me, however much I enjoy cursing neocons.
I realized early on that the story wasn’t that simple. George Bush, after all, is hardly the first president to centralize power in the face of a crisis or to take a messianic view of the presidential role: he stands on the shoulders of liberal giants in that regard. I started to think about the sorts of presidents our scholars and talking heads worship: activists and warriors almost to a man. I started to notice how current candidates talk about the job they’re applying for. Barack Obama told voters in South Carolina last fall that the president could “create a Kingdom here on earth.” John McCain holds out the execrable Teddy Roosevelt as a model because he “nourished the soul of a great nation,” as if soul-nourishing is part of the president’s job. And I started to wonder if maybe we’re getting the presidency we deserve.
The basic idea behind Cult is that Americans ask far too much of the presidency—and that’s a dangerous thing. From the academy, to pop culture, to the voting booth, Americans seem to believe that it’s the president’s role to teach your children well, protect your job, democratize the world, and save you from hurricanes. The public expects the president to be a superhero–and, apologies to Stan Lee, with great responsibility comes great power. That dynamic will continue to operate long after George W. Bush heads back to the branch to cut brush–and so long as it does, the Imperial Presidency will be a permanent fixture in American life.
The Constitution’s Framers never thought of the president as our national guardian angel. They thought of him as a constitutional officer with an important but limited job. Relimiting the presidency thus requires far more than throwing the bum out, or even passing a package of legislative reforms designed to cabin the president’s discretion. It requires recapturing the Framers’ vision–changing how we look at the presidency and what we ask of the office.
Is that possible? Beats me. But I hope that Cult makes a convincing case that it’s necessary.
Meanwhile, I’ll be using this blog to comment on the horror and hilarity of our current presidential race, the view of the office that’s on display, and what it all might mean for the future of the presidency. I hope you’ll keep stopping by.
So my dad, who, like me, is a fan of pulpy noir detective novels and shows, sends me an email telling me to set my Tivo for this. I click the link and read:
In the kitchen of a Chinese restaurant in Edinburgh, corrupt cop Brendan McCabe is being drowned in a tank of live lobsters.
That is perhaps the best sentence I’ve ever read.