The Imperial Presidency is Here to Stay

And Obama, Clinton and McCain seem fine with that

Steve Chapman | February 21, 2008

After the United States won its independence from Britain, some soldiers had the idea that America should have a king of its own—namely George Washington, their commander. Washington promptly scotched the idea. But if he were to see some of the powers asserted by his successors, he might wonder why he bothered.

Few presidents have interpreted their authority more broadly than George W. Bush. He has claimed the right to defy a federal wiretapping law, used "signing statements" to nullify provisions of law that he dislikes, ordered Americans arrested on U.S. soil to be held as enemy combatants without access to the courts, and generally taken a view of his power that echoes Buzz Lightyear: "To infinity ... and beyond."

He has had fervent support from legal thinkers who worship at the altar of a strong executive branch. The United States signed an international convention banning torture, which is also against federal law, but former Bush Justice Department official John Yoo, asked in 2005 if the president could encourage a suspected terrorist to talk by crushing his child's genitals, didn't say no. He said, "I think it depends on why the president thinks he needs to do that."

This indulgent approach contrasts with the thinking of conservatives 50 years ago, who thought the presidency was evolving toward virtual dictatorship. A lot of today's conservatives agree, but wish it would evolve faster.

For those who think government powers need firm limitations, the good news is that all three prospects to replace Bush say he has overreached. The bad news is that whoever wins, things probably won't change much.

Hillary Clinton, Barack Obama and John McCain are on the record rejecting the supersized presidency. All three say they would curtail or abandon the use of signing statements. They believe Bush's detainment of American citizens as enemy combatants was wrong.

They agree that the president may not authorize torture. All, asked by The Boston Globe if the president could bomb Iran without congressional authorization in the absence of an imminent threat, said no.

But can they be trusted? Clinton raises doubts because her husband did not shrink from claiming the right to do as he pleased. His Justice Department insisted that the president may refuse to enforce laws he regards as unconstitutional, much as Bush has done. Clinton sent troops to Haiti, which posed no military threat, without bothering to ask Congress.

Worse still, he went to war in Kosovo even though Congress had voted down a measure authorizing it (a decision his wife urged him to make). Cato Institute policy analyst Gene Healy, in his invaluable new book The Cult of the Presidency, writes that "when it came to presidential prerogatives, Bill Clinton behaved little differently—and in some ways, more aggressively—than his Republican predecessors."

McCain doesn't always sound skeptical of executive authority. When I asked his director of foreign policy and national security, Randy Scheunemann, if McCain agreed that Bush has the right to ignore the Foreign Intelligence Surveillance Act to engage in warrantless eavesdropping, he replied, "I haven't ever heard him publicly challenge the president on bypassing FISA." Asked by the Globe if he thought Bush had violated constitutional restrictions on his power, the pilot of the Straight Talk Express took a detour, declining to answer.

Pledges of a less imperial presidency are a welcome change, and some, like those on torture and the detention of U.S. citizens, will most likely be kept. But it may be too much to hope that any of the candidates will really shrink the office. Presidents want to be able to do what they want to do. Sharing responsibility with Congress sounds palatable only until Congress demands something different from what the White House wants.

So the reflex of any administration is to keep—if not augment—existing powers. The terrorist threat can only strengthen that tendency, since any attack will be blamed on the president.

Even a leader who wishes Bush had less authority may easily rationalize the status quo once in office: "I wouldn't use those powers unless I really need to, so what's the harm in keeping them?" Ceding authority would be especially hard for McCain, who would face fierce opposition within his party.

But even the Democrats would be bucking history as well as self-interest. It would take a special president to voluntarily relinquish powers that could someday prove useful. And George Washington isn't coming back.

COPYRIGHT 2008 CREATORS SYNDICATE, INC.

Comments

|2.21.08 @ 3:10PM|#

Who was the last president to reduce the power of the presidency? Has there been one?

|2.21.08 @ 3:13PM|#

George Washington.

|2.21.08 @ 3:19PM|#

John Yoo, asked in 2005 if the president could encourage a suspected terrorist to talk by crushing his child's genitals, didn't say no. He said, "I think it depends on why the president thinks he needs to do that."

John Yoo, you are cordially invited to my home, where we will engage in a lively discussion about political matters. Dinner will be served, and the evening will conclude with a demonstration of fisticuffs, followed by an intriguing application of traditional clog-dancing.

Kolohe|2.21.08 @ 3:21PM|#

GW increased the power (heck he personally led troops against the Whiskey Rebellion)

The last one was probably Andrew Johnson, but that was due to political circumstances, not by design

NoStar|2.21.08 @ 3:23PM|#

Warty,
Gerald Ford earned some respect when he rescinded some "Executive Powers" granted by congress to the president, some dated back to Franklin Roosevelt.

I don't recall any other president giving executive order powers back.

|2.21.08 @ 3:26PM|#

Who was the last president to reduce the power of the presidency? Has there been one?

Jerry Ford.

|2.21.08 @ 3:29PM|#

IMRO, as the years have passed, Gerald R. Ford's reputation has acquired somewhat of a shine.

Teenage Prostitute|2.21.08 @ 3:35PM|#

It's not so much that Bush the lesser is an imperialist that rankles (part of) the populous. It's that he's so damned ineffective at it. If his Iraq adventure had played out anyplace near how it was pitched on the frontside, there'd be nary a peep about his imperialistic ways.

Hell, the (too many) Reasonoids who whored for the Iraq invasion would be nigh on thrilled, instead of still nibbling on the crow.

|2.21.08 @ 3:40PM|#

Jack Boone:

When, and in what context, did John Yoo say that?

|2.21.08 @ 3:41PM|#

Teenage Prostitute, you are, unfortunately, probably right. I'd just like to say, for the record, that I was against this war from the beginning.

Bingo|2.21.08 @ 3:43PM|#

Gee, Daniel, I can't think of any context where torturing a child is appropriate.

Maybe you can enlighten us.

jj|2.21.08 @ 3:44PM|#

Jim Forsythe, a Ron Paul-endorsed Republican candidate for congressional seat from New Hampshire is having his big money-bomb day today. It will be interesting to see how well he does...

I'm donating and I encourage others who are able to to throw in a buck or two.

www.jimforsythe.com

|2.21.08 @ 3:45PM|#

I don't want my presidents imperial, effective or not. Unfortunately, we collectively don't seem to care. And Congress and the media don't help one bit--the former by not exercising its power to check executive authority (or assertions of authority the executive doesn't legally have), the latter by spreading the false image of the president as the face and the principal power in the federal government. It's just like equating a company with its CEO--easier to build a narrative around, never mind that it's false.

|2.21.08 @ 3:51PM|#

It is of course an old story. Please consult Ex parte
Quirin, Ex
parte Endo, Korematsu
v. United States, Youngstown
Street & Tube Co. vs. Sawyer, and Johnson v.
Eisentrager for a few of the historical claims of
Presidential power that I disagree with. (not that the President won every matchup.)

|2.21.08 @ 3:52PM|#

Also Ex parte Merryman, Ex parte Milligan, and Worcester v. State of Georgia

It's part of why separation of powers is a good thing.

Episiarch|2.21.08 @ 3:56PM|#

The more power the president has, the more the position is worth. That means people will fight even harder to occupy it, and once they get there, they will sure want to use those powers they fought so hard for.

Self-fulfilling, really.

|2.21.08 @ 3:59PM|#

When, and in what context, did John Yoo say that?

Daniel,

It was December of 2005, in a debate with Doug Cassel of Notre Dame over Yoo's "Unitary executive theory."

Wikipedia reports the exchange in question as going like this:

Cassel: If the President deems that he's got to torture somebody, including by crushing the testicles of the person's child, there is no law that can stop him?
Yoo: No treaty.
Cassel: Also no law by Congress. That is what you wrote in the August 2002 memo.
Yoo: I think it depends on why the President thinks he needs to do that.

(Also, it's "Jake," not "Jack." No worries; it's a common mistake 'round these parts.)

|2.21.08 @ 3:59PM|#

John Thacker,

My National Security Law class spent 90% of the time talking about the expansion of presidential powers, 5% of the time talking about the failure of presidents to get their way, and 5% of the time wondering when Congress and/or the courts were going to remember to check executive actions.

|2.21.08 @ 4:08PM|#

I my opinion,FDR's internment of the Japaneses-Americans was worse than anything Bush has done.Wilson was no saint during WWI either.It seems most war time presidents have over stepped their bounds including John Adams and Honest Abe.I think Truman tried to take over the steel industry.

economist|2.21.08 @ 4:14PM|#

Wilson was worse than "no saint". He was a self-righteous, domineering, destructive prig with no grasp on reality.

|2.21.08 @ 4:17PM|#

economist,Very true.I was being nice.

economist|2.21.08 @ 4:34PM|#

While we're on the subject, I also think Theodore Roosevelt gets off way too easy. I think he was probably the first president to enthusiastically embrace an imperial role (Lincoln accepted the role without enthusiasm and in desperate times).

|2.21.08 @ 4:38PM|#

Believing that Bush has done anything "Caesarian" compared to the average American President requires impressive historical ignorance. You really have to work to be that stupid.

At the absolute worst, he's the most average President ever.

|2.21.08 @ 4:38PM|#

lol economist, they should make that a bumper sticker

economist|2.21.08 @ 4:43PM|#

John Q,
What, the part about Wilson, the part about TR, or the part about Lincoln?

|2.21.08 @ 4:49PM|#

Wilson..and the revolution of 1913 lol

Peter|2.21.08 @ 4:56PM|#

Calvin Coolidge didn't give up any powers, but God love him for barely using any either.

I was having a conversation with a liberal friend on who we considered to be great presidents - He naturally rattled off a list of big imperialists and dictator types - TR, FDR, Wilson. I said Coolidge, and he replied, "What?! Silent Cal'? He did nothing." or something to that effect. Which is a gross oversimplification, but I imagine is to say that Coolidge didn't use the power of the executive office to improve the country (or dare we say the world, as most others did). What caused me to give up the argument right there was the fact that it is nearly impossible to convince a died-in-the-wool liberal of the virtue of leaving the country's mechanism's alone.

|2.21.08 @ 4:57PM|#

Since when do people take on jobs with the goal of relinquishing power so as accomplish less?

|2.21.08 @ 5:04PM|#

This is why I backed Dodd and Richardson.

And why I dismissed Clinton and Biden so early.

|2.21.08 @ 5:20PM|#

One could argue that Nixon reduced the power of the president quite a bit, albeit unintentionally.

Mike M.|2.21.08 @ 5:33PM|#

Believing that Bush has done anything "Caesarian" compared to the average American President requires impressive historical ignorance. You really have to work to be that stupid.

At the absolute worst, he's the most average President ever.

However one may feel personally about Iraq and all the rationalizations and how the war got started, it should never be forgotten that the Iraq war was in fact authorized by both branches of Congress with a fair amount of bipartisan support, no matter how much the elected Democrats today would like to collectively pretend that either they didn't REALLY support the war or that they were just duped by the dummy.

duster|2.21.08 @ 5:54PM|#

since any attack will be blamed on the president

I don't get that at all. It certainly didn't happen with 9/11.

|2.21.08 @ 5:56PM|#

"However one may feel personally about Iraq and all the rationalizations and how the war got started, it should never be forgotten that the Iraq war was in fact authorized by both branches of Congress with a fair amount of bipartisan support, no matter how much the elected Democrats today would like to collectively pretend that either they didn't REALLY support the war or that they were just duped by the dummy."

Which brings us to the question;

Who is more foolish?

The fool on his errand (war on terror)?

or

Those who aided and abetted the fool while he sold the cow country out for some magic beans security theatre?

The idea that GWB all of a sudden assumed some great amount of power ignores the fact that the Congress was playing along the whole time.

Peter|2.21.08 @ 6:01PM|#

"Since when do people take on jobs with the goal of relinquishing power so as accomplish less?"

The goal isn't to relinquish power. At one point the job was less rife with power to be abused. We've come far enough away from that point that I think a little relinquishing would do the country some good.

I think it's worth mentioning on a libertarian blog that most of the progress we've seen in this country has been made in spite of the power of government, not because of it, and I'd also say that most of our greatest ills as a society have come about as a result of zealous policy-making. By that rationale, the only way we can truly make any economic or social progress in this country from this point on is for our government officials to cede their power, especially at the executive level.

|2.21.08 @ 6:10PM|#

At the absolute worst, he's the most average President ever.

I still rank him above Buchanan. But he's not done yet.

Gene Berkman|2.21.08 @ 6:20PM|#

I sincerely believe George W. Bush to be the worst President in my lifetime, and that is after living through Lyndon Johnson (a Texas warmonger) and Richard Nixon.

Bush has pushed the limits even of the expanded Presidency that Johnson, Nixon, Carter, Reagan & Clinton left him.

But the problem also lies with Congress, that has gone along with Presidents when they start wars and create new government programs. And the fault lies with the average American, who looks upon the President as the entire federal government, and as a personal problem solver. Even Libertarians seem to think the President should have lots of power, just that he should use it to cut back the government.

We need to elect people to Congress who will oppose the President's power grabs, regardless of partisan consideration. Go to www.libertycongress.org for some candidates who might be worth supporting.

Joel|2.21.08 @ 6:20PM|#

The more power the president has, the more the position is worth. That means people will fight even harder to occupy it...

Does this mean we can look forward to a time when presidential elections will be fought with guns? By the candidates in person, that is.

Because that would certainly increase my enthusiasm for the ritual.

Joel|2.21.08 @ 6:23PM|#

Incidentally, the most horrifying phrase I think I've ever heard regarding the presidency, and I've heard it several times in connection with this election, is "Commander in Chief of the United States."

And nobody ever gets up and punches the guy who says it.

|2.21.08 @ 6:46PM|#

One reason why I'm for Obama. He's at least put himself on the record that he wants to bring habeas corpus back.

I think the drain of power towards the Presidency is probably unstoppable until we figure out a way to deal with the agency capture problem. The Founders thought that there would be a nice balancing act of powers among the Legislative, Judicial, and Executive branches, but the Legislative and Judicial branches haven't done that much to maintain their power. (Also when you've got people like Bush with his Executive Signing statements, there's a question what good are laws anyway.)

I'd really, really like to build a time machine and dump Yoo back into pre-Revolutionary France. Maybe then he'd understand why "L'Etat c'est moi" isn't all that great an idea.

|2.21.08 @ 6:49PM|#

Mike M,

You are correct that the invasion of Iraq was not a case of George Bush stretching the powers of the presidency. But then, it's not generally criticized as such.

The same people certainly do criticize Bush for invading Iraq, and for throwing out the system of checks and balances, but those are two different critiques.

Tangentially, it's nice to have two housed of Congress sniping at each other again. The Republicans were so disgustingly lockstep that we might as well not even HAVE a bi-cameral legislature.

|2.21.08 @ 6:58PM|#

The depths of the Bush years may never be fully understood. Firing US Attorneys for going after guilty GOP Congressmen (Cunningham, Lewis, Doolittle) and sicking them on innocent Dems (see 60 Minutes on Sunday) is not only criminal, but is just one many impeachable offenses by itself.

economist|2.21.08 @ 7:33PM|#

Wow, joe's actually for a Congress that's less inclined to legislate than before. I thought joe favored a unicameral, proportional-representation legislature?

|2.21.08 @ 7:36PM|#

Also when you've got people like Bush with his Executive Signing statements, there's a question what good are laws anyway.

And yet it would have been interesting enough to see Ron Paul use them after bills were passed over his veto but he insisted that they were unConstitutional anyway and ordered the Executive Branch to implement them in the narrowest way possible (or ignore them outright), contrary to Congressional interest. We would see how far Chevron deference went.

|2.21.08 @ 7:53PM|#

economist,

I prefer one house that's PR, and one that is single-member-district.

This "2 per state, no matter how big or small" thing is a relic.

|2.21.08 @ 8:04PM|#

Who was the last president to reduce the power of the presidency? Has there been one?

Thomas Jefferson. He campaigned against the Alien and Sedition Acts, and cut spending by 50%, enough to completely eliminate all internal taxation.

Heinrick|2.21.08 @ 11:26PM|#

"Believing that Bush has done anything "Caesarian" compared to the average American President requires impressive historical ignorance."

Funny, no one attached their name to that comment.

|2.22.08 @ 1:28AM|#

If by imperial presidency you mean a president who promotes "empire" then Obama is very different.

|2.22.08 @ 3:30AM|#

So does this leave us with Obama as the only libertarian-ish choice in November?

I must confess that I heartily approve of many of his initiatives to drive governmental transparency (and thus at least the possibility of accountability). Things like the search-able public databases of government contracts and entitlements strike me as fairly vital steps to get at least a few of the nation's immune systems functioning again and warm my heart.

I also have a great deal of respect for his stands towards civil liberties. Some of his key legislative achievements in Illinois are pretty damn encouraging (particularly the mandatory videotaping of complete interrogation sessions for all capital crimes).

On the other hand, he's certainly not a small-government type. But, since it seems we will have ourselves a choice between two big-government types this November, I suppose I can bring myself to vote for the man who at least wants to bring back some measure of transparency.

It's a start, at least.

|2.22.08 @ 10:04AM|#

Dan M, I just can't buy the argument that vastly larger and more intrusive, but more transparent, government is a move in a libertarian direction.

|2.22.08 @ 10:19AM|#

RC Dean,

No disagreement here on that point.

My point is simply that increased transparency and accountability allows the increasingly well-informed chunk of the citizenry who cares about these things to highlight corruption and waste. It won't magically make our lives better, but it will strengthen this nation's political immune system, for the first time in the Bush/Clinton/Bush years.

For instance, although it's a small gesture, I really like Obama's plan to have a 5 day waiting period between the passage of a bill and his signature so that the American people can read the bill and holler at him about it.

As far as government size goes, I couldn't call any of the remaining candidates even slightly libertarian. They all seem set to expand it in one way or another. But if it is a choice between big and secretive or big and open, I still think big and open is ultimately friendlier to libertarian concerns.

At a minimum, it is slightly less unfriendly.

|2.22.08 @ 11:35AM|#

I'm pretty tired of the executive branch getting the blame for everything, and congress ALWAYS getting a free pass. They call it "balance of power" for a reason. It's not up to the executive branch to balance it's own power. The legislative branch is content to let the president have the power, so that he can take all the blame that comes along with it. Why shouldn't they. No one in the media calls them on it. The media is the entity that created the king because it's cheaper to have a coorespondent at the white house asking one person what he's going to do about all of the problems in the world, then it is to send people to every congressional district, or God forbid focus on State and Local governments responsibilities on these issues.

|2.22.08 @ 12:32PM|#

Obama's name is in the lede, but he is not mentioned in the article. Why is that?

|2.22.08 @ 3:55PM|#

In other "imperious presidency" news, a motorcycle policeman in Dallas died after crashing his motorcycle while escorting Candidate Clinton's motorcade.

Why do these worthless fucks think they need a high-speed police escort everywhere they go? Could it be they fear those whom they would subjugate?

William W. Wexler|2.23.08 @ 7:17AM|#

This article is and should be a hit piece on Clinton and McCain.

However, you stop short of explaining how a Barack Obama presidency will continue expanding presidential powers. Good for you, because if you tried, you'd have to lie.

Obama is on record saying that he will review every signing statement for Constitutionality and rescind those that are unconstitutional. That same test would be applied to his own signing statements, if he should ever choose to use them, which I don't believe he would. At least any signing statement would pass the test; it would be within the limits of presidential power as it is defined.

Obama has also been adamant on the necessity of 100% transparency in government as well as involving parties from all sides of the issues to have an opportunity to provide input into the decision processes. If that isn't power sharing, I don't know what is.

So you are correct to point out that we should expect an imperial presidency fromt the other two; however, Obama is a Constitutionalist.

-Wexler

JB|2.23.08 @ 2:23PM|#

Most presidents start with a limited approach to the powers of the office and a commitment to collegial decision-making. That humble approach goes out the window re: foreign policy, due to the modern presidency's typically broad interpretation of the commander-in-chief clause and the constitutionally limited role for the president in domestic affairs. Legislative government made a comeback after Nixon's resignation, but has more often than not followed the executive's lead in foreign policy.

|2.23.08 @ 11:49PM|#

Did this author endorse Ron Paul? Wouldn't his concerns regarding the growth of governmental power be more credible if he had, or if this article appeared instead in the pages of a magazine less hostile to the only candidate who actually would reduce the power of the presidency?

|2.25.08 @ 12:45PM|#

"""Obama is on record saying that he will review every signing statement for Constitutionality and rescind those that are unconstitutional."""

Well I'll guess this isn't your first election. They will tell you anything to get elected, all of them. Except maybe Ron Paul, which is one of the reasons he can't get votes.

I seriously doubt that a signing statement is constitutional, for the same reason the line-item veto was unconstitutional. A President approves of a bill by signing it, disapproves by veto. The President can not approve only parts of a bill.

|2.25.08 @ 5:02PM|#

I don't get all the fuss about signing statements; who reads those things anyways?

It's not like the courts are somehow bound by them.

|3.4.08 @ 8:20PM|#

I Agree with you John Thacker on the fact that the seperation of powers is a good thing. However, it appears that all three branches have got together and determined to usurp the constitution together.

The congress refuses to check the power of the president and give him a blank check every time he asks for it.

Meanwhile, the supreme court is deciding that it would be a great thing if some local political hack decided to take your home for a fraction of what it is worth and hand it over to his developer buddies.