Balkinization: Has the Bush Administration weakened the Presidency?

Has the Bush Administration weakened the Presidency?

In a word, no.

It is true that the Administration's most extreme theories of the Presidency have been rebuffed both in the courts and in public opinion. But the more important question is whether the next President will find him or herself significantly limited in what he or she seeks to do because of the Bush Administration's failures. The answer to that question is: almost certainly not.

The events of the last eight years have demonstrated that Congress is quite willing to give the President wide ranging powers with very little oversight if he asks for it. The Authorization for the Use of Military Force against Al Qaeda, the AUMF for Iraq, the Patriot Act, the Military Commissions Act of 2006, and the Protect America Act of 2007 are all examples. In each case Congress gave the President new and in some cases considerable discretionary powers. These powers, moreover, once granted, are only taken back in exceptional circumstances, for example, in certain sunset provisions of the Patriot Act. Although the Protect America Act expires this year, the latest news is that it will be temporarily extended yet again by the Democratic Congress, and the final accommodation over FISA will probably give the President many new powers of surveillance over what he enjoyed in the original FISA.

Similarly, President Bush engaged in a systematic program of maximizing executive secrecy and avoiding oversight accountability. Very little of this program has been challenged, and almost none of it successfully. The next President can continue these policies, or, more likely, he or she can relax them only slightly to good public relations effect. The next President only has to appear a little more accommodating than than the intransigent George W. Bush to get a great deal of good will from Congress.

To be sure, President Bush and Vice President Cheney regularly bristled at the notion that they had to ask Congress (or anyone else) for authorization for anything. That is what tended to get them into trouble. But the next Administration will be unlikely to have an ideological devotion to promoting the Cheney/Addington/Yoo theory of Article II, which has largely been undermined by decisions like Hamdi and Hamdan. Instead, the next Administration will realize that it can do almost anything it wants if it asks Congress for broad authority in foreign affairs, and once that authority is granted, the President is vested-- as Justice Jackson pointed out in Youngstown-- with the full power of the U.S. government.

There are two additional reasons why we should not expect that the Bush Administration has placed the modern Presidency into any sort of eclipse. The first is that the modern Presidency is by now a large, powerful bureaucratic organization that runs a enormous number of programs and controls armies and navies around the world. Its programs must be kept going, no matter who is in office. After Andrew Johnson's impeachment and the scandals of the Grant Administration, the Presidency was less powerful during the Gilded Age, and Congress was the dominant body. But the executive was far smaller in those days and the day to day operations of government did not rely very much on an energetic executive. All that is different today. A century of state building has made the executive the preeminent branch of American government. That is not likely to change soon.

Second, it is worth noting, as I have before, that President Bush is likely to be a disjunctive president, that is, a president who presides over the dissolution over the Reagan coalition and its associated constitutional order. Generally speaking, presidents who find themselves in these unenviable positions are viewed as incompetent and/or weak. The last example was Jimmy Carter, who had the misfortune to be President when the New Deal/Great Society coalition was breaking down and the last example before him was Herbert Hoover, who presided over the end of years of Republican hegemony. The President who succeeds such a disjunctive president usually looks quite powerful in comparison. One need only compare Hoover to FDR, and Carter to Reagan. If the next President is a Democrat, and creates a new coalition and a new political order based on that coalition, he or she will seem quite powerful. Moreover, he or she will likely be supported by Democratic control of both houses of Congress, which will make him or her seem all the more influential.

If the next President is a Democrat, therefore, you should expect lots of press coverage in in a few years wondering why anyone ever thought that the Bush Administration had weakened the Presidency.

What if the next President is a Republican, however? That might be because there is another terrorist attack between now and the election, in which case the President will be given a great deal of authority once again. Indeed, if there is another terror attack, and even if the current Administration is blamed for it, one can expect that the next President will be given whatever tools he wants to deal with the threat. No weakened Presidency here, either.

Suppose, then, that the Republicans win the election without another terror attack. In that case, the President, facing a Congress likely still controlled by the Democrats, will be in a comparatively weak position politically. Yet just as in Bush's case, the next President will be able to get most of what he wants in the area of foreign affairs just by asking for it.

The bottom line is that we must see beyond the particular failures of the Bush Administration and look at the longer structural changes in governance that come with the rise of the National Surveillance State. That state features a robust executive, no matter who is in office. Presidents Clinton and Bush presided over the early growth and creation of that state; the next President will continue building it, making it far more powerful and pervasive.

All in all, the long term trend in American constitutionalism is toward greater executive power, not less. The great challenge for American constitutionalism is how to secure civil liberties and democratic accountability in this new state, not how to bolster a limited executive.

Posted 9:31 AM by JB [link]

Comments:

Of course I agree that we've long been trending towards executive power. But the character of the parties has been the most important specific factor lately.

The Republican Party is aggressive, whereas the Democratic Party is supine. In the 1990s, the GOP stood for executive weakness; thousands of congressional subpoenas resulted. In the 2000s, the GOP stood for executive omnipotence. All oversight was characterized by the GOP as de facto support for al Qaeda. Particularly in the 2000s, the Democrats did little to present the opposing side to either argument.

No Democrat is campaigning as a "radical" in the way that Reagan and FDR did. Well, maybe Edwards is, but he's probably not going to win.

A Democratic president with a Democratic Congress will face an intensified version of the record-breaking filibustering record that the Senate GOP has racked up in the past year. A Republican president will face a supine, Harry Reid-led Democratic Senate.

The current character of the parties, not the experiences of FDR and Reagan, will determine what happens with executive power in 2009.

# posted by

Elvis Elvisberg : 10:16 AM

I think I have to second Elvis's point, which is that that your post completely ignores the party dynamic at work. Even assuming a Democratic president with a reconstructive orientation, I don't see how he gets a filibuster-proof majority in the Senate. Even assuming no loss in SD or LA and pickups in CO, NM, NH, ME, OR, and VA and the Dems are still only at 57--and that's if you count Joe Lieberman (I don't--esp. not on things like this). One need only compare the craven Democratic minority under Clinton and Bush to the current Republican minority to see the difference. Even if we had a Democratic president right now, it would make little difference (except on things like S-CHIP) because the Republicans have been able to keep things from passing the Senate. Even now, Bush has only had to use his veto 8 times--and that's double-counting two vetoes each for S-CHIP and stem cell research.

You also ignore the nature of the Presidential powers sought. To the extent any Democratic president is going to be a reconstructive one, he will not be trying to reconstruct the national security (or, as you will, national surveillance) state. Rather, the Democrat would probably be reconstructive mainly in areas of domestic reform (principally, but hopefully not limited to, health care and the environment). Most of the expansions of executive power during Bush 43 have been justified by fear--the war on terror requires X. This is the dynamic that has caused the Congress to give the President whatever he wants: "Give me power to spy and torture, or the next mushroom cloud will be on your head!" I can't help but feel that "give me power to refashion America's health delivery system, or health care prices will spiral ever higher!" will be somewhat easier for Congress to resist, even if Republicans spontaneously start playing legislative politics like Democrats.

Having said that, I think the Republican minority will resist any further encroachment on even the national surveillance state under a Democratic president. Can you imagine the Republican congressional minority--let alone the D.C. or Fourth Circuits--giving Hillary Clinton the authority to kidnap and torture Americans at will? It's hard to cast one's mind back, but you remember the paranoia on the right (not just the NRA/John Birch/militia right, but in Congress) after Waco and Ruby Ridge? As surely as the sun rises in the east, a Democratic presidency will cause Republicans, in Congress and the courts, to rediscover the importance of limits on executive power, even in the national security arena.

In short, I foresee a dynamic resembling the first two years of the Clinton presidency. None of this, of course, will have anything to do with our experience under Bush. So, in that sense, I think you're right...Bush has not weakened the Presidency. Rather, we'll just have come full circle.

# posted by

Andrew : 11:11 AM

Hmmm.

If the problem is the effect of bank robbery on banking, the most effective response is not subject to a filibuster in the Senate.

# posted by

Charles Gittings : 11:45 AM

Congress is quite willing to give the President wide ranging powers with very little oversight if he asks for it

I think the bigger point is what Congress and the courts will fail to do if the President just goes ahead and assumes and asserts those powers. A Democratic Congress will tax itself to accomodate Congress to the positions of power a Republican President has staked out, because there is a real element of fear of any confrontation with a Republican President who is very willing to use the Dept of Justice, military and intelligence agencies as extensions of his sole authority and quite simply defy both Congress and courts.

The courts are similarly stacked with those who are not willing to have the showdown when the most directly supervised elements of enforcement are all aligned on the Executive Branch's side of the equation - or with those who ideologically are willing to play the game of granting support to displays of Executive power based on partisan ideology.

Dissimilarly, Republicans and Democrats in Congress and on the courts have a greater confidence that a Democratic President will not command, by personal conviction or by the unquestioning ideologic servitude, the same kind of unwavering alignment to disregard Congress and the courts, and so they will dig in and pusback more because they have a degree of certainty that a Democratic Executive Branch will acquiesce to law and to constraints to protect governance and comity.

IOW, it's really about a situation where you have power aligned disproportionately on the side of the Executive, especially during times when military force is being exercised. And Congressional power in such a situation is all a matter of that most fragile of things, belief.

If Congress believes that the Executive branch will conform to law, or that there are good men and women within the Executive Branch who will not put partisan politicking and unwavering devotion to the Executive above their individual beliefs in and responsiveness to the rule of law and Constitutional principles, then Congress will act with independence, to assert oversight, to demand information, to place limits, and to threaten and pursue avenues such as impeachment.

Where Congress and America lack a belief that the denizens of the Executive Branch will voluntarily comply with the perogatives of Congress and the courts, then Congress rushes to avoid the confrontation and to not only hand over power whenever asked, but to retroactively immunize and provide amnesty for any and all in a long assortment of crimes and to appease. Whether they hide from the issue, or attempt a pretense at responding to it, they spout rhetoric as a placeholder for the spots where actions, conscience and responsibility should reside.

In the end, so much boils down to the nature of the individuals involved and by nature, what we have seen over and over, it is the Republicans who will fight for power, while the Democrats will not. And the Republicans are very attuned to the fact that power can be generated from either being an effective opposition or from being an all powerful party in power, and that they can reliably expect that any Democratic lines in the sand are just the grainy beginnings of an effort that will end, shallow and shakey, with a fully etched:"surrender"

# posted by

Mary : 12:18 PM