Will Attorney General Eric Holder Restrict or Expand Executive Power?

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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? 

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  1. Didn’t Hitler have an attorney general?

  2. 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.

  3. Will Damon Root keep his porn star buffont hair style?

  4. 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?”

  5. You gotta admit, joe, that quote points to “No”.

  6. ROFLMAO! Of course not!

  7. 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.

  8. I was afraid Hillary would get AG. Attorney General Holder: better or worse than Hillary?

  9. 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.

  10. I thought that was a smart comment, btw.

  11. 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.

  12. #,

    Who will keep the proles in line if not Holder and his minions?

  13. Holder should not be confirmed under any circumstance, imho.

  14. 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

  15. 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.

  16. 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.

  17. 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.

  18. 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.

  19. *detain* american citizens without trial

  20. 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.

  21. 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.

  22. 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?

  23. 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.

  24. 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.

  25. 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.

  26. 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.

  27. 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.

  28. 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.

  29. It’s not so much that I’m trying to praise George III as I’m trying to insult George W.

  30. 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).

  31. 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.

  32. this is a silly argument. holder will be fine. obama will only use the power he feels necessary to continue the revolution.

  33. obama wants to capture binladen too.

  34. 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.”

  35. 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.

  36. 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.

  37. 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.

  38. 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.

  39. 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.

  40. Holder must be stopped, even if it takes a filibuster.

  41. 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.

  42. 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.

  43. 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.

  44. 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.

  45. The Impearilist Presidency is over with the election of Obama.

  46. 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.

  47. 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.

  48. 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.

  49. 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.

  50. 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?

  51. I take your point about opening doors that others will walk through, Seward. It’s a good one.

  52. 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.

  53. 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.

  54. Didn’t FDR have his own “little wars” down south in the 30s?

  55. 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)

  56. Except for appearing off the coast of cuba,we took the 30’s off

  57. 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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