Are The Parties Dividing over Executive Power?

JB

This article by Charlie Savage of the Boston Globe, which Marty discussed last week, describes the positions of many of the major presidential candidates. For convenience, here are answers by Democrats Joseph Biden, Hillary Clinton, Chris Dodd, John Edwards, Barack Obama, and Bill Richardson, and Republicans Rudy Giuliani, Mike Huckabee, John McCain, Ron Paul, Mitt Romney, and Fred Thompson.

It is worth noting that while the Democrats answered almost all of the questions posed to them, Giuliani, Huckabee and Thompson, three of the front runners, essentially avoided answering any of them (Giuliani gave a general response to the first question and would not go into specifics). Mitt Romney essentially gave answers out of Dick Cheney's playbook. My guess is that Giuliani (almost certainly, given his previous public statements) and likely also Huckabee and Thompson would probably support a strong executive. McCain's answers seem more moderate in some respects (e.g., torture) but not in others. Ron Paul, a libertarian, wants a far less powerful executive.

What can we infer from these responses? First, the Democrats think that attacking Bush's assertions of executive power is good politics; conversely, Republicans like Giuliani and Romney probably think that pushing for strong executive powers is appealing to parts of the Republican base.

Thus, it might seem that the two parties are beginning to divide over issues of executive power, just as they once began to divide over issues like abortion. Before the 1980 election, neither party was strongly identified as pro-choice or pro-life (recall that Jimmy Carter was the more pro-life candidate in 1976). After the 1980 election, the parties became identified with different sides of the abortion question as they key symbolic issue in the culture wars.

Nevertheless, matters are rarely so simple, and especially when the division is over a structural question like executive power rather than a substantive policy question like abortion or gay rights. I tend to think that in many respects the divide we are seeing over executive power between the two parties is symbolic more than substantive, and it may not survive a Democratic Administration.

First, many of the issues on which the parties divide are not really about executive power per se: they are about immigration, the war on terror, privacy and civil liberties. If the next President uses his powers to promote the rights of immigrants and aliens, or protect civil liberties, many liberal Democrats will probably argue that the President is well within his constitutional authority in making such decisions. Right now the Democratic candidates are opposed to signing statements, but it is worth pondering what they will do when the first big appropriations bill comes their way.

Second, much will depend on the result of the 2008 elections. Right now Republican presidential candidates are arguing for a strong executive because they expect (or at least hope for) a Republican to be President in 2009. But if the Republicans lose the Presidency, they will be unlikely to continue to press for strong Presidential powers (they did not when Clinton was in office, for example); they are even less likely to do so if the Democrats control the Presidency and both Houses of Congress.

It is true that many Republicans (with the exception of Ron Paul) are hoping that the War on Terror will be a signature issue that binds their coalition together; they would like to establish themselves as the party that is more devoted to wiping out the threat of terrorism. That may lead them to support a strong executive when Republicans are in power, but it may not produce consistent support for presidential prerogatives when Democrats occupy the White House, especially if Democratic Presidents do not exercise these prerogatives in a way conservatives like. Republicans will probably continue to support domestic surveillance measures and laws that strengthen the Executive Branch's ability to detain and deport aliens. But they will not be particularly interested in protecting executive secrecy per se; indeed, as during the Clinton years, they may want to prevent a Democratic President from using claims of Presidential privilege to avoid embarrassing disclosures.

Conversely if the next President is a Democrat, he or she may make symbolic gestures toward a greater balance between the President and Congress, and will probably clean house at the Justice Department, but it is unlikely that the next President will actually cede most of the new powers that the Bush Administration grabbed for itself. Rather, the next Administration will likely offer a less pugnacious and bellicose tone while continuing many of the same policies, often through different legal methods.

In particular, if the Democrats control the Presidency and both Houses of Congress, the President may try to work with Congress to achieve many of the same things that the Bush Administration tried to do unilaterally. (Indeed, when Congress goes along, the President's power as commander-in-chief is enhanced under the Youngstown analysis, not diminished.). Assuming that the next President will have publicly ditched the Cheney/Addington/Yoo theory of the President as dictator, this will mean a less powerful Executive in theory but not necessarily in practice.

Indeed, one lesson of the Bush Administration may be that future Presidents learn that they can increase their practical authority by working with Congress with far less political resistance. ( The irony of the Cheney/Addington/Yoo theory was always that it created unnecessary pushback and thus actually undermined the quiet expansion of Executive authority.) Sandy Levinson and I have argued that we are gradually moving from a national security state to a national surveillance state, with greatly increased delegations of power to the executive to collect, collate, and analyze information for purposes of everyday governance. We also predict that all of the branches will participate in the creation of such a state; the real issue will be how the state will be constructed, whether there will be sufficient checks and institutional structures to protect civil liberties, and so on. An Executive who works with Congress to build up the national surveillance state is still a much more powerful Executive, even if from a theoretical perspective the President has given up the Cheney/Addington/Yoo theory of Article II.

Third, we must distinguish the party system, its politicians, and its political operatives from particular liberal or conservative intellectuals and legal theorists associated with the two major political parties. Party operatives, pundits, and politicians are used to changing their arguments about structural matters (Presidential power, federalism, judicial restraint) on a dime, with few worries about consistency over time. So it is possible that a Republican Congressman in 1999 could attack Bill Clinton for bombing Kosovo, flip to become an ardent defender of George Bush's powers in 2004 and then flip back to becoming a critic of Presidential power in 2009 under a Hillary Clinton Presidency. By contrast, legal theorists and intellectuals will have much greater difficulty doing this sort of flip because their professional reputations tend to be based on their intellectual consistency over time, although one expects there will be a fair number who will make the attempt.

A Clinton or Obama or Edwards Presidency will probably produce a number of liberal intellectuals who were quite happy making arguments for a strong executive during the Clinton years and would be happy doing so again. It is also worth remembering that Bill Clinton was no great friend of civil liberties during his two terms in office-- although George W. Bush has made him look good by comparison on that score-- and that Clinton engaged in one of the most significant acts of Presidential unilateralism in recent memory-- engaging in airstrikes on Kosovo in a war against Yugoslavia without Congressional authorization. All of these decisions were supported by lawyers in the Clinton Justice Department, which suggests that there are plenty of liberal Democrats willing and able to argue for fairly robust Presidential power if the occasion calls for it.

Readers of this blog presumably are aware that, all other things being equal, I would rather have a Democrat in the White House in 2009; I think the last seven years have been dreadful for the country and it is time to clean house. But precisely for that reason, I think it important to keep a new Democratic Administration honest when it comes to excesses of power and violations of civil liberties, because, for the reasons described above, it has every incentive to make only symbolic reforms.

Perhaps I am being too pessimistic: It is possible that the last seven years have really taught the Democrats something about the dangers of Executive authority. But it is also possible that once in office, they will forget many of those lessons.
Posted 11:02 AM by JB [link]