WHITE HOUSE SEPTEMBER 4, 2013
Bush-Cheney Administration alumni have risen from the ashes to denounce President Obama’s decision to force Congress to play its constitutional role in a decision to use military force in Syria. It is, they insist, yet another surrender of power by a feckless President presiding over the degradation of the Executive Branch itself, the empowerment of which was one of their central goals.
This is wrong on two dimensions: First, despite their aggressive efforts, the Bush-Cheney administration left the Presidency weaker, and not stronger. And second, far from degrading the power of the Executive, the Obama administration has steadily, and significantly built up and exploited presidential power.
While it is too early to know if Obama’s Syrian plan will continue this trend, there are powerful reasons to think it will.
The Bush-Cheney administration famously asserted that when it came to foreign policy and national security, the President possessed nearly unlimited, autonomous, and unreviewable power. They insisted that the President could seize and hold prisoners at Guantanamo Bay; that the President alone could decide what and how much due process they were entitled to seek and that together with Congress, they could deny the independent federal courts, the third branch of government, the right to review their decisions. And they declared that the administration had the authority to redefine the meaning of torture.
All these claims and more were built on novel and poorly supported constitutional theories. When they were challenged in Court, far from enshrining the administration’s and permanently shifting formal power to the Executive branch, these theories and claims were rejected, and what had once been ambiguous and contested questions about the allocation of power was settled, not by assigning it to the Executive but, in fact, by ruling that it belonged exclusively to Congress.
Jack Goldsmith, the head of the Office of Legal Counsel in the Bush-Cheney Justice Department, would later write that the administration advanced broad and unsupportable claims and arguments because “the President and Vice President wanted to leave the presidency stronger than they found it.” But, he concludes, “the approach they took achieved exactly the opposite effect. The central irony is that people whose explicit goal was to expand presidential power have diminished it.”
Consider: In 2004 the Supreme Court ruled that the Executive could not independently order the detention of prisoners at Guantanamo, but could do so in this case because Congress had implicitly delegated this power to the President through the very open-ended language of the 2001 Authorization for the Use of Military Force. This was, in short, a power that now explicitly was assigned to Congress.
2004 also was the year in which Goldsmith had to repudiate and withdraw a series of legal opinions his office had released—many authored by John Yoo—including the infamous memos ostensibly offering a legal rationale for the use of torture in interrogations.
The Bush-Cheney legal dream team failed again in 2006 in Hamdan v. Rumsfeld when the Supreme Court rejected their assertion that those same detainees could be tried by military commissions established by Executive Order. Commissions were possible, the Court ruled, but only if they were the produce of explicit congressional authorization. Another win for Congress. Another loss for fans of Executive prerogative.
But this dance was far from over. In Boumediene v. Bush in 2008, Justice Anthony Kennedy delivered a stinging blow to the Bush-Cheney project, ruling that prisoners at Guantanamo Bay had the right to file petitions for habeas corpus; that Congress and Congress alone could suspend habeas, but had to do so explicitly and could not simply forbid the Courts from hearing these appeals. A question that had been left in some shroud of ambiguity since Lincoln suspended the Great Writ in the Civil War was now clear: The power belongs to Congress alone.
John Yoo, one of the Bush-Cheney administration’s leading lawyers, realized in 2006 that the Supreme Court would actually be a major barrier on their path to the constitutional fortification of Executive power.
After the Court handed the administration a defeat in the military commissions decision in Hamdan v. Rumsfeld, Yoo told the New York Times that the Justices were “attempting to suppress creative thinking.” The 2006 Hamdan decision, Yoo said, could undercut the entire legal edifice that had been built by the Bush lawyers.
What Yoo failed to acknowledge then (and fails to acknowledge even now) is that it was the Bush-Cheney overreach, their “creativity,” that had pressed even a conservative and friendly Supreme Court to undercut the administration’s claims to power, leaving the Executive weaker than it had been when Bush and Cheney walked into the White House in January 2001.
And Obama? While the Bush claims actually eroded and undercut Executive power which had built up steadily since World War II, it was the administration of Barack Obama that actually, quietly, efficiently and with unerring focus has expanded, embedded and solidified Executive power. And it has done so not by making “creative” constitutional claims, but instead by steadily (and aggressively) building and exercising Executive power—but doing so by pressing existing statutes and judicial rulings, rather than unsupportable constitutional theories.
Turning to Congress now for formal authorization to use military force in Syria could well be another example of this effort—and it may yet have the same effect.
As I wrote in 2009, less than six months into the new administration, in areas ranging from the assertion of the State Secrets privilege in efforts to shut down lawsuits over warrantless wiretapping and extraordinary rendition to those concerning lawsuits over detention and treatment in Guantanamo, and the reach of habeas corpus to Bagram Air Force Base in Afghanistan, Obama’s legal team was building up a far more impressive, far stronger and far more difficult to reverse set of precedents—winning in court after court—a trend that has continued ever since, including memos defending the legality of drone strikes targeting U.S. citizens, and the sweeping authority for the electronic surveillance among many others. Even in their defense of the use of force for limited strikes in Libya, the Obama administration seemed to state that Congress must have a role in major military actions.
These are aggressive claims. They are significant. They are new assertions of power—but they rest far more squarely on statutes, statutory interpretation and interpretations of judicial rulings than did the military rationale offered by Bush and Cheney.
So—we have two models. The Bush-Cheney model, full of sound and fury which ultimately left the Executive branch weaker and not stronger, and the Obama model, which builds its case for executive power on the back of statutory authorization and judicial rulings.
And so, what are we to make of Obama’s decision to force Congress to play a role in a decision to use military force in Syria? Are the Bush apologists right? Is this—though a very difficult needle to thread—of a piece with Obama’s successful efforts to build executive power on a vastly firmer foundation than the constitutional “creativity” of the Bush legal team?
It may be, and here’s why:
Presidents in the modern era have turned to Congress for a fig-leaf of authorization before—in the 1964 Tonkin Gulf Resolution, or the 2001 Authorization for the Use of Military Force. But these were passed in the shadow of what was perceived to be a genuine emergency. There was no time for deliberation, no time to inspect the evidence. A vote for these authorizations was one that was all too easy for a regretful Congress to abandon as the wars they had ostensibly authorized dragged on and on.
This time there is time. Despite withering criticism from the Bush-Cheney apologists, Obama refused to call Congress back for an emergency session. Rather than giving them just hours to support the Commander in Chief in time of crisis, he has assured the nation that the military is confident that a few weeks will make no difference in our ability to achieve our military objectives.
A yes vote under this scenario means Congress fully shares the ownership of this policy (and its results). It means that whatever horror comes next in the Middle East, America’s policy there will be just that—America’s policy: The product of Congress acting together with the President, under the traditional rules and process laid out by the U.S. Constitution.
And if Congress votes no? Then we have one of two scenarios: The blame for the next atrocity, or the next deployment of chemical weapons in the Middle East or elsewhere is as much their heavy burden as it is Obama’s or, to prevent that, Congress will be compelled to actually deal with a serious policy issue and not simply vote a few dozen more times to repeal Obamacare.
Turning to Congress in this fashion is very much in Obama’s self-interest. But is also in the national interest, and quite possibly in the best interest of those concerned about preserving and enhancing Executive power. Future Presidents who will no doubt face complicated and risky security challenges, will require the full force of a nation united behind them and may now be more willing to follow the precedent Obama has set.
Gordon Silverstein is Assistant Dean and Lecturer in Law at Yale Law School, and author of Law’s Allure: How Law Shapes, Constrains, Saves and Kills Politics (Cambridge University Press) and Imbalance of Powers: Constitutional Interpretation and the Making of American Foreign Policy (Oxford University Press).