Balkinization: Should President Hillary Give Up Executive Power?

Should President Hillary Give Up Executive Power?

Stephen Griffin

No way. In general, the excesses of the Bush II administration can be dealt with without permanently infringing on executive power. You don’t need provocative signing statements to be an effective president. And as Jack Goldsmith argues, referring issues like detainee treatment to Congress can actually enhance presidential authority. But what of a new Clinton administration’s (or any other Democratic candidate, for that matter) stance on executive power generally? The term “unitary executive” is now so toxic that it may have to be jettisoned. But adopting a cautious approach to executive power would simply repeat the mistakes of Clinton I.

The original Clinton administration had an ambivalent or negative attitude to some of the traditional sources of presidential power, such as the commander in chief clause. Bill Clinton did not pay enough attention to crucial cabinet positions such as Defense (Les Aspin) and Justice (Janet Reno). And Clinton I seemed to assume (like many Democrats of the time) that unified Democratic control of Congress would last forever. President Hillary may take office with a Democratic Congress, but it would be a serious mistake to make unnecessary concessions on presidential power that she might need later if Congress changes hands. There are cogent arguments in favor of righting the current balance in favor of Congress. But contemporary congressionalists seem to have forgotten the real abuses of congressional investigative power that occurred during Clinton I.

Because of the DOJ scandals, well-meaning establishment figures will urge President Hillary to appoint an independent minded Attorney General. Never mind this is just the sort of person least likely to be trusted by the Clintons, thus creating a dysfunctional situation at Justice from the beginning. Like Bush II, a new Clinton administration will try to run Justice from the White House counsel’s office. But the psychology of a new Clinton administration is a topic for another day. What’s more important is that DOJ and OLC will require staunch defenders of a reasonable scope for executive authority.

One story I haven’t seen the press cover is who is giving constitutional/legal advice to each Democratic candidate. There has been plenty of coverage of Democratic positions on the Iraq war. But what about the “real” war, the indefinite war created by the 9/11 AUMF? There are many issues here. What about intelligence strategies? Detainee policy? Compliance with human rights treaties and international law? The legal advisers to the next Democratic president will have a small mountain of issues facing them on the day after inauguration. So who are the chief legal advisers to each Democratic candidate? The press ought to be taking a look.

Posted 10:42 PM by Stephen Griffin [link]

Comments:

What’s more important is that DOJ and OLC will require staunch defenders of a reasonable scope for executive authority

I assume that you agree this is important not only for a potential "President Hillary" but for any other President as well. And the question is what is a "reasonable scope for executive authority."

This is why it is so important to try to analyze this question (and the related question of the reasonable scope of congressional authority) in an objective manner, and not merely pander to the partisan passions of the moment. Perhaps you could encourage your fellow bloggers to follow you in this endeavor.

# posted by

mls : 7:31 AM

Agreed w/ mis that details would help explain what exactly the poster is talking about.

For ex, should a President HRC continue Bush's practice of over-the-top "signing statements" that leave the enforcement of the statutes to the pleasure of the executive?

# posted by

Anderson : 9:15 AM

I don't know why you guys say Bush's signing statements are "provocative" and "over the top." To my reading, they are mealy-mouthed invocations of legalese that don't even bother to tell you what the President is declining to enforce - which, of course, is the whole problem.

The next President should reinstitute Clinton's practice where if a signing statement is to be issued, the President should say clearly what section of the statute he is declining to enforce and why. Here is a good example. This is the kind of transparency we need, as opposed to meaningless tripe like "the statute will be interpreted consistent with the President's power to supervise the unitary executive branch," which could mean anything.

# posted by

Steve M : 11:26 AM

If Hillary ends up being a Bill clone, she will do nothing to decrease executive power.

It appears that the TSP type programs and renditions were also a feature of Bill's Administration.

Clinton invaded Serbia and threatened to invade Haiti without bothering to obtain an AUMF or a declaration of war. He certainly did not bother going to the UN for approval.

DOJ was the furthest thing from being an independent body under Bill. Bill fired all of the US Attorneys and replaced them with friends of Bill and Reno was a loyal cipher who could be relied upon to stonewall the various criminal investigations of the Clintons.

Instread, Hill and Bill simply decline to exercise US military power if there is any risk whatsoever that the enemy will fight back and we will sustain poll lowering casualties. Bill would have surrendered in Iraq as he did in Somalia after only 19 KIA long before his popularity ratings fell to 50%.

# posted by

Bart DePalma : 11:50 AM

"Bart" DePalma, RW DittoBot:

DOJ was the furthest thing from being an independent body under Bill. Bill fired all of the US Attorneys and replaced them....

Response #29 (see Stock Responses To Endlessly Repeated RW "Talking Points", page 13):

Replacing U.S. atterneys at the beginning of a term is common practise, and was done by Dubya himself. No one complained about Dubya's doing that on taking orifice. What was not common practise was to fire a dozen or so USAs mid-term because they wouldn't carry Rove's political water.

But then again, I repeat my self repeatedly....

Do us a favour and just cut the cr*p, "Bart". If you think you need to paste this tripe over and over, do it on your own freakin' blog where everyone who gives a d*mn (all 0.0007 of them) can go and read it.

Cheers,

# posted by

Arne Langsetmo : 3:00 PM

"Bart" says stuff that is flatly untrue:

Reno was a loyal cipher who could be relied upon to stonewall the various criminal investigations of the Clintons.

No. She did nothing of the sort (see, e.g., the "Whitewater" fiasco, which cost $60M of taxpayers money and came up with nothing). That would be "Seedy Gonzales" et al. And "Dubya".

Cheers,

# posted by

Arne Langsetmo : 3:03 PM

Bart's dead wrong about the Clinton DOJ, but he's right that Bill Clinton loved executive power. Cosi fan tutte.

The only way executive power will contract again is with sustained pressure from the Democratic base to contract it. If we let up even a little bit, Hillary-- or anyone else-- will consolidate the "gains" of the Bush Administration.

# posted by

Dilan : 4:08 PM

"Replacing U.S. atterneys at the beginning of a term is common practise, and was done by Dubya himself."

Come on know, let's be accurate about what the charge here is. It is not that Clinton replaced all the U.S. attorneys. That is indeed SOP, especially when there's a change of party.

The charge is that, almost immediately on taking office, Clinton demanded the resignation of essentially all U.S. attorneys. Rehired the ones who weren't investigating his activities in Little Rock.. And then proceeded to replace the rest on a normal schedule.

IOW, the charge is that he conducted a targeted, defensive firing in the first few days of his administration, and disguised it as a mass firing.

NOT that he fired them all. Clear?

# posted by

Brett : 8:48 PM

The important question is whether the American People will *allow* Clinton to have executive power (or as mls, above, anyone who takes the position). The question of whether she should give it up is beside the point.

# posted by

Unknown : 9:43 PM

Come on know, let's be accurate about what the charge here is.

Arne is not the one who "mis-stated" the "charge". Arne's description of the "charge" is exactly the same way every wingnut post I've seen has ever phrased it. We've seen literally dozens of nearly identical posts here and at Volokh.

The charge is that, almost immediately on taking office, Clinton demanded the resignation of essentially all U.S. attorneys. Rehired the ones who weren't investigating his activities in Little Rock.. And then proceeded to replace the rest on a normal schedule.

I've NEVER seen this charge before. Ever. And from what I know, your statement of it is inconsistent with the facts. I'm going from memory here, but the Arkansas US attorney was NOT replaced immediately. Again from memory, Clinton did NOT "rehire" most of them, he appointed new ones.

All of which is irrelevant to the point of this post, about which I'd expect you to have something interesting to say. Repeating wingnut paranoia doesn't meet that standard.

# posted by

Mark Field : 10:47 PM

I think it safe to assume that the President, regardless of party, will inherently be a champion of executive power. Nothing per se wrong with that; it was part of the plan from the beginning. The President is supposed to be a champion of executive power. Exceptions tend to be ineffectual (see Jimmy Carter).

But it was also assumed that Congress would want to uphold its own institutional prerogatives and keep the President in line. As Prof. Levinson (quoting the other Levinson) is fond of pointing out, this is where it went wrong. The President's party in Congress also champions executive power and only the opposing party wants to restrict it.

Let's hear it for divided government!

# posted by

Essayist-Laywer : 12:23 AM

Enlightened Layperson makes a very good point. I would add that while part of the problem may lie in the nature of our political parties, there is another issue that has been less discussed.

There is an imbalance between the “legal firepower” (for want of a better term) available to the executive branch and that available to Congress. By this I am referring not primarily to the fact that the executive employs a lot more lawyers, but that the executive has (1) many gifted lawyers whose job it is to develop and refine legal theories that advance the institutional interests of the executive vis a vis the other branches (not just lawyers in the Office of Legal Counsel, but also the WH counsel, Solicitor General and other elements of DOJ), (2) the discipline and internal cohesion to advance and adhere to these theories over time, and (3) the advantage that many of these lawyers, once trained in the executive legal system, go on to populate the judiciary and legal academy. Congress has only a few lawyers dedicated to its institutional interests (Senate Legal Counsel, House Counsel and a handful of CRS attorneys, most notably Mort Rosenberg), and poor mechanisms to use these lawyers in a manner that advances its institutional interests.

I am convinced that this imbalance plays a role in the weakness of Congress when it confronts the executive branch on matters of the respective powers of the branches.

# posted by

mls : 8:13 AM

arne langsetmo said...

BD: DOJ was the furthest thing from being an independent body under Bill. Bill fired all of the US Attorneys and replaced them....

Replacing U.S. atterneys at the beginning of a term is common practise, and was done by Dubya himself. No one complained about Dubya's doing that on taking orifice.

Replacing all of the US Attorneys is a rare practice. Replacing the US attorneys investigating yourself and a major congressional leader in the midst of that purge makes the purge smell.

In any case, I am not the one advocating an independent DOJ. In reality, these men and women have a duty to advance the policies of the President and serve at the pleasure of the President. I am merely pointing out that the poster's objective to create an independent DOJ is hardly likely to come to fruition in a Clinton Administration.

BD: Reno was a loyal cipher who could be relied upon to stonewall the various criminal investigations of the Clintons.

No. She did nothing of the sort (see, e.g., the "Whitewater" fiasco, which cost $60M of taxpayers money and came up with nothing).

Whitewater was just one os several Clinton investigations. Reno had very little to do with the Whitewater matter. Rather, Reno was most infamous for derailing the FBI's investigation into the Clinton / Gore campaign cash operations. After Hillary's similar antics more than a year out from this election, she would need a similarly loyal AG.

# posted by

Bart DePalma : 8:40 AM

I'm surprised that Mr. (or Ms.?)Langsetmo thinks it appropriate to attempt to drive other commenters off this website. Wouldn't that be the prerogative of the blog proprietor?

Certainly at the Volokh Conspiracy, though they may be wingnuts according to some, you don't find the commenters telling Mr. Field to cut the cr*p and get out. That is, perhaps, the difference between left-wing and right-wing blog commenters.

# posted by

sean : 9:34 AM

I agree with "Enlightened Layperson" that it's the job of Congress to put the breaks on an executive who pushes its limits. I don't know what the solution is to one who defies Congress when it exercises its function of trying to check the expansion, at least if the courts are primed to back the executive if it comes to a showdown.

Happily--or "happily"--in Hillary's case, assuming she wins (it's too early to tell it's too early to tell it's too early to tell) the courts are unlikely to give her a big grin-with-thumbs-up.

But what about a Democratic Congress? The current incumbents seem focused only on scoring points to win a political advantage, not on representing the interest of constituents. If she pushes too far, and the outcome inures to the advantage of Congressional Dems---or if they cut a deal---I don't think we can count on them to rein her in if she exceeds.

As she will. And there's a part of me that is looking forward (well, a bit) to the writhings and squirmings of those who thought "unitary executive" was a good idea when Bush was president.

And can I just say that I--as a typepad user---would enjoy my commenting experience much more (and comment much more) if this blog's owners set the comments to allow users of other platforms to link back to their actual blogs?

# posted by

damozel : 1:55 PM

sean:

I'm surprised that Mr. (or Ms.?)Langsetmo thinks it appropriate to attempt to drive other commenters off this website. Wouldn't that be the prerogative of the blog proprietor?

"Bart" repeats this stuff interminably, and ignores (until the next time he just repeats it as if no one said anything) any responses or refutations he gets.

As for the proprietors, Prof. Lederman has asked people to keep to the topic, and to ignore the fire-starters like "Bart" that try to hijack or destroy the threads.

But that, in tossing in his Clinton-bashing, is just what "Bart" is doing once again.

As I said, if he thinks it worth repeating, he has his own blog to do so. Once is enough with this RW "talking points" tripe. We heard it the first time (and the second and the third and the fourth). We refuted it then. We aren't stoopid enough to swallow Limbaugh/Hannity/RNC cr*pola whole (clue fer ya: neither is "Bart"). Enough already.

Cheers,

# posted by

Arne Langsetmo : 7:35 PM

BTW, here's a refutation of the absurd claim (a/k/a "slander") that Clinton replaced the U.S. attorneys to avoid a Whitewater investigation.

For the forty-ninth time. But the RW Wurlitzer will keep trotting it out because they have nothing better than attempted tu quoque. The "true believers" will lap it up, of course. More here. And here. For a contrary view, see here.

Cheers,

# posted by

Arne Langsetmo : 3:26 PM