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.
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