Savage v. Goldsmith: Is presidential power a one-way ratchet? Has Cheney succeeded?

Charlie Savage

(This is Charlie Savage from the Boston Globe. I wrote this blog for TPMCafe's book salon and am cross-posting it here.)

Several people in the comments section yesterday questioned my contention that presidential power is not a partisan issue because future Democratic presidents will enjoy the same enhanced authorities that the Bush-Cheney administration has pioneered. They noted that the push to concentrate more power in the White House in recent decades has been largely the work of Republican administrations, and they argued that a future Democratic administration would behave differently. So this raises a question worth examining in more detail: Will the Cheney Project outlive the Bush-Cheney administration?

As many of you know, my new account of the Bush-Cheney administration’s efforts to expand presidential power, Takeover, is coming out alongside Jack Goldsmith’s new memoir of his 10-month tenure as head of the Office of Legal Counsel, The Terror Presidency. Our books complement each other in many respects: mine, based on interviews and documents, is a comprehensive overview of many different aspects of the project to expand White House power; Goldsmith’s, based on his own experiences, focuses on one particularly important component: the effort to free the commander-in-chief from a need to obey rules -- laws and ratified treaties – in national security matters.

In one important respect, our two accounts diverge. Goldsmith argues that the Cheney-Addington effort to expand presidential power has backfired, and the ironic result is that future presidents will be weaker. I argue that their push has been the administration’s most successfully implemented policy, and that future presidents will be stronger as a result. So what will follow after the Bush-Cheney administration passes into history?

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I haven’t read Goldsmith’s book yet because my pre-ordered copy has not arrived. But Goldsmith’s view is on display in several advance interviews and accounts of his book. When the administration wanted to do something – warrantless surveillance, harsh interrogations for detainees – that was apparently prohibited by a law or ratified treaty, it could have gone to Congress and asked lawmakers to change the rules. Instead, it asserted that presidents have an inherent and exclusive power to ignore laws and ratified treaties at their own discretion in national-security matters. By basing its policies on this shakier legal foundation, Goldsmith argues, the administration created a backlash that will leave a lingering mistrust of executive power in Congress and the Supreme Court. From the New York Times Magazine:

The Bush administration’s legalistic “go-it-alone approach,” Goldsmith suggests, is the antithesis of Lincoln and Roosevelt’s willingness to collaborate with Congress. Bush, he argues, ignored the truism that presidential power is the power to persuade. “The Bush administration has operated on an entirely different concept of power that relies on minimal deliberation, unilateral action and legalistic defense,” Goldsmith concludes in his book. “This approach largely eschews politics: the need to explain, to justify, to convince, to get people on board, to compromise.”

Goldsmith says he remains convinced of the seriousness of the terrorist threat and the need to take aggressive action to combat it, but he believes, quoting his conservative Harvard Law colleague Charles Fried, that the Bush administration “badly overplayed a winning hand.” In retrospect, Goldsmith told me, Bush “could have achieved all that he wanted to achieve, and put it on a firmer foundation, if he had been willing to reach out to other institutions of government.” Instead, Goldsmith said, he weakened the presidency he was so determined to strengthen. “I don’t think any president in the near future can have the same attitude toward executive power, because the other institutions of government won’t allow it,” he said softly. “The Bush administration has borrowed its power against future presidents.”

By contrast, I make a nearly opposite case in Takeover. As I write:

Yet even if the victor in the 2008 presidential election declines to make use of the aggrandized executive powers established by the Bush- Cheney administration, in the long run such forbearance might make little difference. The accretion of presidential power, history has shown, often acts like a one-way ratchet: It can be increased far more easily than it can be reduced. The annals of American history are now filled with new precedents in which a White House has claimed the power to bypass laws and then acted upon that claim, especially in matters of national security. The zone of secrecy surrounding the executive branch has been dramatically widened. The Supreme Court has been sharply tilted toward a sympathetic view of executive power, and the White House’s political control of the permanent government has been dramatically expanded. The federal statute books are now riddled with asterisks, thanks to the explosive growth of signing statements, which have made it clear that a president can routinely sign legislation while declaring himself free to ignore sections that restrain his own powers — a dramatic change that has the potential to take away from Congress its constitutional right to override a president’s decision to reject a new law.

The expansive presidential powers claimed and exercised by the Bush- Cheney White House are now an immutable part of American history -- not controversies, but facts. The importance of such precedents is difficult to overstate. As Supreme Court justice Robert Jackson once warned, any new claim of executive power, once validated into precedent, “lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes.”

Sooner or later, there will always be another urgent need.

In the short-term, I’m not as sure as Goldsmith about the backlash. Witness the Democratic Congress’ recent willingness to pass the White House’s preferred version of the Protect America Act, expanding its power to wiretap without warrants and providing for little in the way of oversight, even after-the-fact.

But whatever the short-term difficulties, in the long term it seems likely that Dick Cheney and his aide David Addington have succeeded. History has shown that backlashes against executive power are short-lived, and that precedents established during periods of expansion survive to resurface once political winds have shifted again. After Nixon’s “imperial presidency” fell, Congress began conducting vigorous oversight again and passed a series of new controls on the exercise of presidential power in order to prevent future abuses. For example, it passed the War Powers Resolution, which required presidents to consult Congress when sending troops into combat and to pull out of any military action after 60 days if it has not received explicit congressional authorization. It created an independent counsel who could investigate White House wrongdoing without being fired by the president. And it created many other controls, which I explain in greater detail in my book. But, as I wrote in the October issue of The Atlantic Monthly:

The erosion of these and other checks began even before the post-Watergate furor had fully subsided. As early as 1975, Gerald Ford, without consulting Congress, was sending marines on a bloody rescue mission to Cambodia; by 1999, Bill Clinton felt free to order the Air Force to bomb Kosovo and Serbia, which it did for 78 days—all without any explicit congressional authorization. After the Iran-Contra and Whitewater investigations, lawmakers let the independent-counsel law expire.

Administrations from both parties also continued to develop new powers. Jimmy Carter set the precedent for unilaterally scrapping a ratified treaty when he pulled the United States out of a mutual-defense pact with Taiwan. Ronald Reagan’s legal team invented the “Unitary Executive Theory,” which undercuts the authority of Congress to regulate the executive branch. The imperial presidency was largely restored before Bush took office. While Cheney claimed that he and Bush were filling in a valley of executive power, they were actually building atop a mountain.

It may be that this history will not repeat itself. But there is no reason to think that will be the case.

This brings us to why I say that presidential power is not a partisan issue, and that future Democratic presidents will be stronger because of the Bush-Cheney record. I do not mean to suggest that Democrats, in their modern form, are just as likely as Republicans to actively seek ways to expand presidential power beyond what they inherit. Nor do I mean to suggest that a Democratic president is certain to impose or continue the same specific policies of the Bush-Cheney record – Guantanamo, say, or harsh interrogations. A Democratic president will have his or her own policy preferences. But history has shown that all presidents, no matter their party, are willing to draw on all the tools available to them to achieve their policy goals – even if they only use what they have inherited, rather than trying to grow them.

For example, Bill Clinton was the first Democrat to become president after Reagan’s legal team had come up with the idea of frequently issuing signing statements as a tool to expand presidential power. Clinton kept issuing them, too – he made the second most challenges in history to that point. On the other hand, the Clinton administration was still relatively restrained. In 1996, for example, Clinton’s legal team declared that a president could decline to enforce or obey a law he had signed only if a court had already made clear that such a law was unconstitutional. (The context was a provision in a military bill requiring the Pentagon to expel HIV-positive but otherwise healthy soldiers from the military – a law Clinton’s legal team said was probably unconstitutional but which no court had reviewed yet.)

After the Bush-Cheney administration leaves office in 2009, and especially after another election cycle or two have passed, the White House will have a clean slate. The players and the political fights will be different. The mistrust will be gone, but the precedents will remain. So while the Cheney Project may end with the Bush-Cheney administration, future presidents will inherit the fruits of its labors.