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Will Attorney General Eric Holder Restrict or Expand Executive Power?
The Nation's John Nichols has a good question for Attorney General-designate Eric Holder, who faces Senate confirmation hearings tomorrow:
Shortly after the USA Patriot Act was signed into law, at a point when the Bush administration was proposing to further erode barriers to governmental abuses, you argued that federal government officials who questioned the wisdom of eliminating established protocols and lines of separation between federal agencies--many of which were designed to protect against the concentration of executive power and the abuses that flow from it--should be fired. Specifically, you said in 2002 on CNN, "We're dealing with a different world now. Everybody should remember those pictures that we saw on September the 11th. The World Trade Centers aflame, the pictures of the Pentagon, and any time some petty bureaucrat decides that his or her little piece of turf is being invaded, get rid of that person. Those are the kinds of things we have to do." Why should you be trusted to uphold the Constitution and serve as the nation's chief law-enforcement officer--as opposed to a mere legal extension of the unitary executive?
Elemenope|1.14.09 @ 7:18PM|#
That quote is "Yikes!"
OTOH, it is hard to find politicians at that time who didn't speak
idiocies as a result of the 9/11 lobotomy.
|1.14.09 @ 7:39PM|#
Just about anyone other than Dick Cheney, John Yoo, and Alberto
Gonzales would restrict executive power compared to how the Bush
administration has asserted it to date.
Dialing it back to where it was under Clinton would be a huge deal,
and Clinton was no slouch on the asserting-executive-power front,
either.
I think the question needs to be phrased as "Will Eric Holder
restrict executive power as much as is needed?"
|1.14.09 @ 7:51PM|#
Sure, Elemenope, that quotes points to no. Holder seems like an
authoritarian, like all of the other recent AGs.
Dawn Johnson at OLC is a good sign.
|1.14.09 @ 7:51PM|#
I was afraid Hillary would get AG. Attorney General Holder: better or worse than Hillary?
Elemenope|1.14.09 @ 7:52PM|#
Dawn Johnson at OLC is a good sign.
True. If she lasts, I'll relax. If she gets bumped, like I said in
a previous thread...canary in a coal mine.
</|1.14.09 @ 8:02PM|#
Why have hearings? Holder is a shoe-in to run The Ministry of Love although not quite the lock Geithner has on the Ministry of Plenty.
|1.14.09 @ 9:07PM|#
Just about anyone other than Dick Cheney, John Yoo, and
Alberto Gonzales would restrict executive power compared to how the
Bush administration has asserted it to date.
Don't bet on it. Democrats love to bitch about abuses of power when
they don't have the white house, but they always shut up about it
when they get their guy in the big chair.
-jcr
tarran|1.14.09 @ 9:47PM|#
Let's say you are Barack Obama, convinced that you face an
economic crisis akin to foreign invasion. Are you going to limit
your power? Or are you going to keep as many arrows in your quiver
as you can get away with?
I don't expect anything other than a revolt by Congress will do
anything to reign in executive power.
MJ|1.14.09 @ 10:01PM|#
Well if Holder does what Nichols wants, I hope to hear nothing
from him when the next crisis comes and it comes out that the
situation would have been prevented or mitigated if the federal
agencies could play better together.
On the other Nichols should not get what he wants because he does
not understand the structure of the US government.
"The executive Power shall be vested in a President of the United
States of America." - US Constitution, Art. II Sec. 1
"But in a republic, where every magistrate ought to be personally
responsible for his behavior in office the reason which in the
British Constitution dictates the propriety of a council, not only
ceases to apply, but turns against the institution. In the monarchy
of Great Britain, it furnishes a substitute for the prohibited
responsibility of the chief magistrate, which serves in some degree
as a hostage to the national justice for his good behavior. In the
American republic, it would serve to destroy, or would greatly
diminish, the intended and necessary responsibility of the Chief
Magistrate himself."- Federalist No. 70
mag·is·trate (mj-strt, -strt)
n.
A civil officer with power to administer and enforce law
Just so we are clear, the President of the United States is the
Chief Magistrate of the Federal Government. He is the nation's
chief law enforcement officer, the Attorney General is merely
number one subordinate he delegates that authority to. Anyone who
has a problem with the notion of a unitary executive is arguing
against upholding the Constitution, not for it.
|1.14.09 @ 10:51PM|#
John C. Randolph, I kinda think joe dealt with your 9:07pm point with his "Clinton was no slouch on the asserting-executive-power front, either" at 7:39pm.
Mad Max|1.14.09 @ 10:55PM|#
Having a unitary executive means we have one president, not
several, who supervises the executive branch. It doesn't mean he
gets to make new laws, or ignore existing laws, or to set aside the
laws based on inflated notions of executive prerogative which would
make George III blush.
I mean that seriously - George III got Parliamentary permission
before attempting to suspend habeas corpus or detain people without
trial.
Contrast to Bush and his courtiers, who claimed that Presidents can
American citizens without trial in the face of a statute preventing
precisely that.
Nor do I think George III used his 'inherent royal authority' as a
'unitary king' to authorize torture, certainly not in the face of a
Parliamentary ban on the practice.
Seward|1.14.09 @ 11:13PM|#
tarran,
Well, more to the point, what sort of incentives does an incoming
President (it doesn't matter who it is) face? And what is the most
likely outcome in light of those incentives? That sort of question
is rarely asked I think. I think it highly unlikely that any person
- in light of the current incentives faced by the U.S. executive
branch - in that role is going to devolve power to any other branch
or level of government.
MJ|1.14.09 @ 11:26PM|#
I believe during the time of George III things such as drawing and quartering were still legitimate options, so I'm not sure what the point is. What the Bush administration authorized was not "torture" outside of unreasonably broad partisan defintions of torture that do not fit any recognized legal standard.
Mad Max|1.14.09 @ 11:32PM|#
MJ,
I was talking about George III's claims of royal prerogative to
override Parliamentary statutes. So I'm not sure what *your* point
is.
And when the Bush Administration held that applying the torture ban
to its activities would be *unconstitutional,* they weren't
contemplating torture?
And when prisoners died in detention, it was from being denied
cable TV, huh?
Seward|1.14.09 @ 11:38PM|#
Mad Max,
I would note that during WWII apparently torture was used by the
British military. Furthermore, corporal punishment was a common
practice in the British navy well into the 19th century. It was
only in the 20th century that some human societies began to see the
infliction of physical pain as a punishment or a truth telling
device as problematic.
Seward|1.14.09 @ 11:41PM|#
Mad Max,
I was talking about George III's claims of royal prerogative to
override Parliamentary statutes.
Well, as many scholars have noted, the devolution of power from
crown to Parliament (let's place it for convenience sake with the
glorious revolution - William and Mary and the sausage eaters that
followed the end of the Stuarts were willing to be weaker monarchs
for a number of reasons) actually made the "British" government
more intrusive and more powerful.
Mad Max|1.14.09 @ 11:44PM|#
Seward,
The humanitarian movements you reference could be traced to the
19th century - at least in the U.S., where they got rid of flogging
in the navy.
And of course corporal punishment was inflicted on those
*convicted* of offenses against military order. In the case of the
British navy, without the lash, naval service had lost 33% of its
fun. (There was still rum and sodomy).
But my main point was about George III following the law - he did
it better than *our* King George. To be sure, there are
constitutional limits on the power of Congress, but a Presidential
right to torture and detain isn't one of those limits.
Mad Max|1.14.09 @ 11:47PM|#
Separation of powers isn't the *only* constitutional principle
which safeguards liberty, but it's an important one. It means that
before you can even look at whether a person's unabridgeable
constitutional rights have been violated, you first have to look to
see if Congress authorized the procedure in question, or if (in the
case of torture, and of detention of U.S. citizens without trial)
Congress has specifically forbidden it.
Once the executive strikes out on the matter of statutory authority
for abridging life, liberty or property, then no further questions
need be asked - human rights prevail.
|1.14.09 @ 11:51PM|#
Obama won't limit executive power as it relates to the national
security and civil liberties in any meaningful way for one reason:
his own self-interest.
If he does so, and there is another attack on American soil, his
political career is over. Dead. Done. Kaput.
If, on the other hand, he keeps all the powers arrogated by Bush in
place and there is another attack, he hasn't given his opponents
their best line of attack on him, and has at least a chance to
survive.
Seward|1.14.09 @ 11:53PM|#
Mad Max,
I guess that depends on how one interprets his efforts concerning
the India Bill; I guess one could view it as just good politics,
but he was clearly trying to dominate and run roughshod over the
Parliament and was successful at it too by getting Pitt in and the
collapse of Portland.
Mad Max|1.15.09 @ 12:09AM|#
It's not so much that I'm trying to praise George III as I'm trying to insult George W.
Seward|1.15.09 @ 12:27AM|#
Mad Max,
That's fine. I didn't vote for the guy and there are few things
that he did that I supported.
I just don't think George III was the greater respecter of
Parliament that you seem to be claiming that he is.
As with most things, I really think it depends on what a person in
political power can get away with. Poorly checked power corrupts
and unchecked power corrupts absolutely. One historical example I
recently encountered (I didn't come up with this in other words)
was a comparison of Leopold III of Belgium and his treatment of
Belgians (checked power) and people in the Congo Free State
(unchecked power).
Kolohe|1.15.09 @ 1:41AM|#
I with Max on his original point. "Unitary Executive" is a verbal boogeyman much like "Assault Weapon". There are two elected officials in the executive branch, only one of which really 'counts'. So, as far as a 'unitary executive' means that the executive branch has a single voice with a single agenda, that's not really a problem. It's up to the other branches to make sure that this single voice within a single branch is operating in accordance with the law - and the article one branch does this by writing laws with specificity, and stop keep putting in "the Secretary shall determine..."the Secretary shall decide..." etc. And of course, by having the federal government do less, you defenestrate executive power at it's source.
nobody u no and big fan of joe|1.15.09 @ 5:59AM|#
this is a silly argument. holder will be fine. obama will only use the power he feels necessary to continue the revolution.
|1.15.09 @ 9:15AM|#
John C Randolph,
I think it's fine rule of thumb to note that the out-party always
wants to restrict the power of the President, but by any objective
measure, this particular administration has gone above and
beyond.
Look at this "unitary executive" crap. Think about what it means to
declare someone, even an American citizen, and "enemy combatant"
with the stroke of a pen. An order of magnitude more signing
statements than any other president.
Sometimes you have to go beyond "he said she said."
|1.15.09 @ 9:19AM|#
What the Bush administration authorized was not "torture"
outside of unreasonably broad partisan defintions of torture that
do not fit any recognized legal standard.
That is factually incorrect. Japanese military officers were
convicted and executed for war crimes for ordering torture using
the same practices that the Bush adminstration utilized, such as
waterboarding and keeping people in "stress positions" for long
period of time. A police officer in Chicago was convicted and
jailed for using waterboarding to get confessions.
Seward|1.15.09 @ 9:45AM|#
joe,
Think about what it means to declare someone, even an American
citizen, and "enemy combatant" with the stroke of a pen.
Those are not unusual acts in war time U.S. history. At the very
least the administrations of Lincoln and FDR did similar things. So
in the context of warfare it is "he said, she said."
An order of magnitude more signing statements than any other
president.
That was just the current end point of a long trend.
|1.15.09 @ 9:53AM|#
Seward,
World War 2 was, literally, a lifetime ago. The Civil War was 2-1/2
lifetimes ago.
They used to segregate the military, throw people into camps for
their ethnicity, and incinerate entire cities a lifetime ago - and
that was when we were in all-out war for our survival.
I don't care what happened in a more barbarous era. You might as
well tell me that spying and assassinations are no big deal because
J. Edgar Hoover used to order them. I don't care.
That was just the current end point of a long trend.k Not
really. Bush expanded the practice exponentially.
Seward|1.15.09 @ 10:05AM|#
joe,
World War 2 was, literally, a lifetime ago. The Civil War was
2-1/2 lifetimes ago.
The fact that states repeat past practices ought to tell you
something about the general nature of states no matter who is in
charge.
They used to segregate the military, throw people into camps
for their ethnicity, and incinerate entire cities a lifetime ago -
and that was when we were in all-out war for our
survival.
What, do you think those practices are somehow gone forever? Were
folks thrown into Gitmo merely for their ethnicity? That seems like
a distinct possibility?
I don't care what happened in a more barbarous era.
I do. Because it as often as not a rough approximation of what will
happen in the future.
Bush expanded the practice exponentially.
So, from my reading on the subject I'll note the following:
Bush (mid 700s) roughly doubled what Clinton did (upper 300s).
Clinton nearly did the same in comparison to Reagan (mid 200s). GHW
Bush would have likely doubled Reagan's if he had stayed in office
more than one term. Basically it was the Reagan administration that
started using them more aggressively (there had been less than a
100 by all Presidents prior to his administration), not the
outgoing Bush administration. All Presidents following Reagan
followed suit and used this practice more and more. So Bush is not
unique as far as the four Presidents are concerned.
Seward|1.15.09 @ 10:08AM|#
The past four Presidents that is.
Anyway, the general point is that you are wrong about Bush being
some sort of outlier on signing statements - well, at least in
regard to the past four Presidents. Bush is part of a distinct
trend that started with the Reagan administration.
|1.15.09 @ 10:42AM|#
Seward,
If it was, indeed, just "the general nature of states" to do as
Bush did, we wouldn't be having a conversation about his expansions
of executive authority. If the actions I listed were just a normal
baseline, they wouldn't have disappeared, or be viewed with such
regret and horror.
What, do you think those practices are somehow gone
forever? No, we must remain vigilant against them, and not
stike some fatalist pose as if they were inevitable, because they
could well come back.
Were folks thrown into Gitmo merely for their ethnicity? That
seems like a distinct possibility? No, that's a little nuts,
actually.
I do. Because it as often as not a rough approximation of what
will happen in the future. Only if they come to be viewed as
normal, expected, ordinary, run-of-the-mill exercises in governing.
As opposed to treating them as barbarous violations of our ideals
and laws.
So Bush is not unique as far as the four Presidents are
concerned.
There was a great article in the Boston Globe last year, that was
linked to here in Reason. It wasn't just the number of such
statements Bush signed - which was, itself, unprecented, but the
breadth of the powers and judgements he reserved to himself in
those statetments went well beyond what was done before.
Don't get me wrong, I realize that the imperial presidency didn't
beging with Bush. He just took it to a whole new level.
Fluffy|1.15.09 @ 11:09AM|#
If this thread isn't dead, I'd like to note this:
Eric Holder just testified that waterboarding is torture, and
testified further that the President can't order waterboarding
regardless of the Bush administration's Constitutional theories to
the contrary.
This is by necessary implication a statement that senior Bush
administration officials, including the President, have broken the
law.
This means that if Holder is confirmed, the Obama Justice
Department would be required to charge Bush administration
officials, including Bush himself, with crimes. Anything
less will show that the Obama Justice Department does not care
about the rule of law.
|1.15.09 @ 11:14AM|#
"I don't care what happened in a more barbarous
era.
I do. Because it as often as not a rough approximation of what will
happen in the future."
Especially if so-called progressives hold the keys to the
kingdom.
Seward|1.15.09 @ 11:23AM|#
joe,
If it was, indeed, just "the general nature of states" to do as
Bush did, we wouldn't be having a conversation about his expansions
of executive authority. If the actions I listed were just a normal
baseline, they wouldn't have disappeared, or be viewed with such
regret and horror.
They are the normal baseline in times of war. Which is why I've
mentioned the importance of context a couple of times. States
expand their scope, become more abusive, etc. in times of war as
compared to times of peace. Look to the incentives that states face
during such periods. It is something that has been lamented (or
praised) since at least the age of Thudydides.
No, that's a little nuts, actually.
Why? Weren't there definately people in Gitmo who merely landed
there because of the bounty that was being offered and they
happened to either be in the wrong place or the personal enemy of
the people turning them? And what made that claim seem likely?
Surely much of it was the language that they spoke, their
ethnicity, etc.?
Only if they come to be viewed as normal, expected, ordinary,
run-of-the-mill exercises in governing. As opposed to treating them
as barbarous violations of our ideals and laws.
Amazingly in wartime what was once barbarous now becomes
acceptable. Its one of the many myriad reasons why wars are
dangerous to free people.
...which was, itself, unprecented...
Clinton signed nearly four hundred of them. Bush signed in the
mid-700s. Both were unprecedented in comparison to say the second
Harrison administration, not in comparison to one another.
...but the breadth of the powers and judgements he reserved to
himself in those statetments went well beyond what was done
before.
Well, at that point things become a lot more subjective. I can look
at the raw numbers though and see that since Reagan we've seen a
dramatic rise in their use, but that Reagan started the trend that
little seperates either of the past four administrations on the
subject as far as the raw numbers go.
He just took it to a whole new level.
As far as the imperial President is concerned, Bush merely
continued a trend that started at least with FDR. It is merely a
difference in degree, not in kind.
|1.15.09 @ 12:14PM|#
Seward,
They are the normal baseline in times of war. Vietnam?
Panama? First Gulf War? Kosovo?
I understand your point quite well that the the government, and the
executive in particular, seeks to expand its power during wartime,
and that this has in the past led to montrous abuses. It's a fine
point, a good warning, but at bottom, this is just a description of
the criminals' motives, not a justification for their crimes.
Metaphorically speaking. Expanding executive authority beyond
proscribed limits, even during wartime, is bad and should be
resisted, even if the desire to so expand the executive's power is
motivated by war.
And what made that claim seem likely? Surely much of it was the
language that they spoke, their ethnicity, etc.? No, not
realy. The people turning them in for the bounty were Muslims who
spoke different languages from us as well, and were often of the
same ethnic group as the people they brought to our bases for
bounty.
Amazingly in wartime what was once barbarous now becomes
acceptable. Yes, this does tend to happen. We all understand
the motives of those who do this, and you probably can stop
"explaining" this motive to me now. That doesn't make the behavior
any more acceptable, or legal, or Constitutional.
Clinton signed nearly four hundred of them. Bush signed in the
mid-700s. Ergo, Bush signed an unprecedented number of
them.
Well, at that point things become a lot more subjective.
No, not subjective, just complex. Ascertaining the implications of
a legal argument is, indeed, more complicated than making a tick
mark; that doesn't necessarily make it any more subjective.
Seriously, that Boston Globe article is worth digging up if you're
interested in this subject.
It is merely a difference in degree, not in kind. Oh,
certainly, which is why Damon Root, and I, and others interested in
this subject use quantitative terms like "expand," "reduce," "roll
back" and "limit" when discussing it.
I will note one thing, though - it has not been a constant trend
since FDR. Executive power has waxed and waned. When it waned, it
did so because of efforts to stuff the Imperial Presidency back in
the box, which meant dealing legal, political, and intellectual
defeats to people like Dick Cheney.
TofuSushi|1.15.09 @ 12:26PM|#
Expanding executive authority beyond proscribed limits, even during wartime, is bad and should be resisted, even if the desire to so expand the executive's power is motivated by war. Especially in non-progressive nations.
Seward|1.15.09 @ 1:17PM|#
joe,
Well, I've stated my point about as well as I can (and I am sure
you have done likewise); we'll just have to disagree where we
disagree and leave it at that.
Seward|1.15.09 @ 1:44PM|#
joe,
On second thought...
I still maintain that what was "unprecedented" was Reagan's use of
signing statements; what followed was merely a ratcheting up of the
volume. The break clearly comes with the Reagan administration's
use of signing statements, not with W. I realize everyone wants to
heap as much blame on W these days, but the use of signing
statements as a major area of presidential power clearly didn't
start with him and I doubt that it will end with him either. Once
power is arrogated to a specific branch of government it becomes
difficult to pry it away.
The people turning them in for the bounty were Muslims who
spoke different languages from us as well, and were often of the
same ethnic group as the people they brought to our bases for
bounty.
And again, much of the reason many of them were held likely had to
do with their ethnicity; it made the story about them seem more
believable.
...it has not been a constant trend since FDR.
Congress has vested more and more power in the Executive since his
administration started. Indeed, even efforts to check that power
have basically been ignored by the Executive; and that is
particularly true in the area of foreign policy. The President
becomes an ever more powerful figure over time since that time,
invested with more and more power. What has happened are efforts to
get the President to exercise that power more wisely, but that is a
fool's game. Divest the government of power and you start to chip
away at the imperial presidency; until then it will just grow and
become ever more problematic no matter how one tries to "reform"
it.
|1.15.09 @ 2:00PM|#
Seward,
I don't disagree that Reagan's use of signing statements represents
a meaningful break; I'm saying that Bush's ratcheting up of the
practice represents yet another break. I still recommend you dig up
that Boston Globa article. Taking into account both the volume and
the substantive significance of Bush's signing statements, it
demonstrates quite convincingly that he put the practice on
steroids.
As for FDR, are you claiming that Eisenhower was a more powerful
Imperalist President than FDR? That Carter was a more powerful
Chief Executive than Nixon? Ford than Johnson?
Heck, are you claiming that even Reagan was a more power Chief
Executive than FDR?
|1.15.09 @ 2:04PM|#
I take your point about opening doors that others will walk through, Seward. It's a good one.
Seward|1.15.09 @ 2:34PM|#
joe,
Yes I am claiming that. I'm not the first person to argue that the
Congress since the New Deal has given the President far too much
power with far too little oversight. Some of this depends on one's
theory of government, but the general Hayekian view (which is my
view) is that elected officials should be making policy and working
out its details and not bureaucrats.
And yeah, Reagan (or at least his Presidency and all the attendant
folks underneath him) was far more powerful than FDR. Reagan
delegated more perhaps, but he had far more power to
delegate.
I'll try to dig up the article; I'm kind of engrossed in
Schumpeter's Capitalism, Socialism and Democracy right now
though. I think folks across a wide spectrum of ideology could
benefit from it.
Kolohe|1.15.09 @ 2:39PM|#
Heck, are you claiming that even Reagan was a more power
Chief Executive than FDR?
By some measures, yes. As much as he wanted to, FDR couldn't use
offensive military force in a direct manner until Congressional
authorization was obtained, and then only after 12/7. Reagan did
not require this for Grenada, Libya, or the tanker war*
*Actually what Reagan did during the tanker war is nearly exactly
what FDR did in 40 and 41, so that might not be a good example.
Kolohe|1.15.09 @ 2:52PM|#
And then there's stuff like the 21 year old drinking age, which represents an end around federalism that even FDR didn't try (he always went for direct action). And the courts ratified all of Reagan's federalism dodges (unlike FDR's)
ChrisO|1.15.09 @ 3:21PM|#
Divest the government of power and you start to chip away at
the imperial presidency; until then it will just grow and become
ever more problematic no matter how one tries to "reform"
it.
That's the bottom line right there, not which party the president
comes from. The executive is the one who actually, well, does
stuff. The more stuff he/she is tasked with doing, the more power
he/she is going to assert in doing so. I don't like vague
legislation granting the executive much leeway, but to have the
regulatory state that the lefties here like, it's almost
unavoidable. The ugliness is a feature, not a bug.
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