Posted by Eric Posner:
Did Cheney Succeed?
http://volokh.com/archives/archive_2009_01_18-2009_01_24.shtml#1232475218
Dick Cheney famously advocated strong executive authority, ruing the
collapse of presidential power that he witnessed in the era of the
Ford administration and the post-Watergate Congress. One of his goals
as vice president was to �leave the presidency stronger than we found
it.� Did he?
Here�s Jack Goldsmith (quoted in Newsweek [1]article):
�The presidency has already been diminished in ways that would be
hard to reverse� and may be losing its capability to fight
terrorism, he says. He argues that Americans should now be "less
worried about an out-of-control presidency than an enfeebled one.�
And here�s Jack Balkin, [2]disagreeing:
With all respect to Jack, the pendulum hasn't even begun to swing
yet. Barack Obama hasn't even taken office. It is a little early to
be worried about an enfeebled Obama. Nor is this an accurate
assessment of the historical trends.
Indeed, as I've written elsewhere, Obama takes office as probably
the most powerful president in American history, in terms of what
he can do and how he can project his power both around the world,
in the economy and through the new forms of surveillance power that
Congress has given him.
And that's really the point: Cheney's mistake was assuming that
more power comes through unilateral action and through doing things
in secret-- like torture.
But if you want a strong executive, you don't really need to act
unilaterally or always in secret. All you have to do is to get
Congress to bestow power upon you, which recent Congress's have
been more than willing to do, in the AUMF, the Patriot Act, the
Protect America Act, the FISA Amendments Act and the Military
Commissions Act.
Barack Obama has the opportunity to be a very strong president, not
an enfeebled one, in part because he has enormous Congressional
grants of power and, given that his party controls Congress, has
the opportunity to ask for even more power.
The two Jacks are talking about different things. Jack Goldsmith means
the power of the president to act without the say-so of Congress; Jack
Balkin means the power of the president to act (that is, to change the
status quo) with the authority of Congress. Balkin also appears to
believe that Congress will give President Obama whatever he wants.
That view may be colored by recent events�the massive grants of power
to Ex-President Bush to conduct wars on security terror and financial
terror, in recent years by a Congress dominated by the opposite party.
But it is not persuasive if one considers the numerous conflicts
between President Bush and Congress, and indeed all the other
post-Nixon presidents and Congress. �All you have to do is to get
Congress to bestow power upon you� is like saying �if you don�t like
the people you work with, all you have to do is to get your boss to
bestow power upon you to fire them.�
This is not to say that Goldsmith is correct, either. In what way has
the presidency been diminished? Bush is very unpopular, but his
unpopularity doesn�t seem to have affected people�s attitudes about
the office. We need to think about the issue of presidential power
more carefully.
1. The constitutional scope of presidential power. Cheney and friends
sought to expand the scope of presidential power�in the Goldsmithian
sense of making it difficult for Congress, the courts, or other
political institutions to prevent the president from doing what he
wants to do. The strategy consisted of the making of broad claims
about executive power, the commander-in-chief power, the appointments
power, and the vesting clause, which, however, were grounded in
Clinton-era and earlier precedents. Many of these claims prevailed,
others did not, but in most cases�as usually happens�conflict was
avoided. The Supreme Court, for example, never got around to
repudiating various war powers arguments though it did (pointedly?)
ignore them. Congress objected to many of the administration�s
assertions while avoiding an impasse by providing legislative
authority for what the administration wanted or yielding.
We just don�t know yet whether these assertions of executive power
will have a lasting effect on the scope of the office. There are two
possibilities. First, the Obama administration may end up citing Bush
administration precedents�especially, one suspects, with respect to
executive privilege. Even if it does not, some future administration
may resurrect them. Second, the Obama administration will repudiate
the Bush administration precedents and future administrations will as
well. What does seem clear is that there is little public pressure, at
least at the moment, to repudiate the Bush administration
precedents�in contrast to the period after Watergate when the
presidency, not just the president, was brought into disrepute. What
is less clear is how much Congress and the courts are going to fight
back and whether they have the means and motivation to cut back the
powers of the presidency.
2. The willingness of the legislature to grant powers to the
president. The Balkinian idea may be interpreted as a claim that
Congress is increasingly willing to grant powers to the presidency. To
the extent that this is the result of Obama�s particular skills and
advantages, it says nothing about the power of the presidency per se.
But to the extent that Congress has come to realize that it can
accomplish little by trying to manage the presidency, and that it can
best satisfy the demands of constituents by yielding power to the
presidency, it all comes to the same thing. Presidential power rises
not because of a formal increase in constitutional powers but simply
because Congress, as a practical matter, has become weak. The supreme
irony of the last eight years is that Cheney was pushing on an open
door.
However, clearly, Congress did not give Bush everything he wanted, nor
did it give everything Clinton or Bush I or Reagan wanted. Perhaps
Balkin thinks that these presidents asked for powers they didn�t need,
or the implementation of policies that weren�t justified, but that is
at best a contestable judgment. When Clinton ignored Congress�s wishes
and launched an air attack on Kosovo in 1999, he exercised
Goldsmithian power, not Balkinian power. Obama is popular right now,
and maybe Congress will give him all he wants. But the honeymoon will
end and only then will we discover whether Cheney�s agenda has met
with success or failure.
References
Visible links
1. http://www.newsweek.com/id/178855
2.
http://balkin.blogspot.com/2009/01/enfeebled-presidency-not-very-likely.html
Hidden links:
3. file://localhost/var/www/powerblogs/volokh/posts/1232475218.html
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