Bush's Leviathan state.

by Jeffrey Rosen | July 24, 2006

One of the defining principles of the Bush administration has been a belief in unfettered executive power. Indeed, President Bush has taken the principle to such unprecedented extremes that an ironic reversal has taken place: A conservative ideology that had always been devoted to limiting government power has been transformed into the largest expansion of executive power since FDR. Often criticized as mere political opportunism--a cynical rationale devised after September 11 to allow the president to do whatever he likes in the war on terrorism--Bush's embrace of the "unitary executive" is in fact the culmination of an internal debate among conservatives that dates back to the Reagan administration. The initial idea--born out of efforts in the 1980s to limit government expansion--was that a strong dose of presidential power was necessary to constrain the burgeoning federal power of Congress. But, with Bush's excesses, conservatives are reaping the consequences of the Leviathan state that they once warned against: Once executive power is viewed as absolute, centralized, and indivisible, it tends inevitably to grow. The White House's vision of an unfettered presidency was dealt a crucial blow at the end of June with the Supreme Court's ruling in Hamdan v. Rumsfeld. But, although the administration lost, one could trace in the justices' opinions the evolution of conservative thought on executive power over the past few decades. Concurring with the majority, Anthony Kennedy wrote that the administration's use of military tribunals in the war on terrorism "is not a case ... where the Executive can assert some unilateral authority to fill a void left by congressional inaction. It is a case where Congress, in the proper exercise of its powers as an independent branch of government ... has ... set limits on the President's authority." Clarence Thomas, joined by Antonin Scalia and Samuel Alito, filed an emotional dissent, calling the idea that Congress could second-guess the president's authority as commander-in-chief "antithetical to our constitutional structure." The generational divide is telling: Kennedy represents an older wave of conservatives who never served in the executive branch and who associate the presidency with the liberal nationalizing excesses of the New Deal and the Great Society. By contrast, the unitary executive proponents-- Thomas, Scalia, Alito, and possibly Chief Justice John Roberts (who recused himself from the Supreme Court case, because he had ruled against Hamdan on the D.C. Circuit)-- all served in the Ford or Reagan administrations. And, during that time, all came to see a strong presidency as the only way to defend conservative ideals from the encroachments of a Democratic Congress, liberal courts, and obstreperous bureaucrats. "Conservatives who came of age in the '70s and '80s viewed the presidency as a friendly institution," explains Steven Calabresi, who founded the Federalist Society and went on to serve as special assistant to Attorney General Ed Meese and teach law at Northwestern University, "while those who came of age in the '50s"--such as William Rehnquist "viewed it as harmful." The crucible in which the unitary executive theory was forged was the Reagan- era Office of Legal Counsel (OLC) at the Justice Department. During the Reagan years, the OLC--which provides legal advice to the president about the limits of his powers--became known as a center of conservative intellectual thought, and as such attracted lots of bright, young, true believers. Having grown up in the shadow of the New Left, they had a more combative view of politics than some of their elders, and that combativeness led to the idea that the only way to tame federal power was with a strong dose of federal power. Under the leadership of Ted Olson and Charles Cooper, with the help of deputies like Alito, the OLC vigorously asserted the constitutional powers of the unitary executive. As Calabresi recalls, "`Unitary executive' was a phrase that was commonplace around the Justice Department when I was working there, although I was the first to defend it in a law review article in 1992. The inspiration for the phrase was Alexander Hamilton's call for `unity' in the executive." The initial purpose of the unitary executive theory was to strike a blow at the heart of the regulatory state. The idea was that the president needed complete control over the executive branch; therefore, he needed the power to fire executive officials--including the independent counsel and the heads of independent agencies like the Securities and Exchange Commission--who didn't share his vision. While Reagan did not launch a full-out assault on the regulatory agencies, as some conservatives had hoped he would, he did issue an executive order requiring the Office of Management and Budget to review a cost- benefit analysis before any major regulation could go into effect. As Alito recalled in a speech to the Federalist Society in 2000, when he was at the OLC in the 1980s, "We were strong proponents of the theory of the unitary executive, that all federal executive power is vested by the Constitution in the president. And I thought then, and I still think, that this theory best captures the meaning of the Constitution's text and structure." The effort to shore up presidential authority pervaded the Reagan Justice Department. Though he never worked at the OLC, Calabresi came up with the idea of using presidential "signing statements" as a way to record the president's interpretation of laws to ensure that they didn't infringe on his constitutional prerogatives. "I think a great deal of it was a response to the fact that Congress was in Democratic hands," says Terry Eastland, whose 1992 book, Energy in the Executive: The Case for the Strong Presidency, remains the best intellectual history of the conservative embrace of executive power. "There were conservative instrumentalists who wanted to assert executive power because they hated Congress--although they would become very pro-Congress when they had Clinton in the White House." In his book, Eastland, now the publisher of The Weekly Standard, tried to move beyond this political opportunism, arguing that conservatives erred in shunning Hamilton's original vision that a strong executive was necessary to tame legislative excesses. Like Hamilton, Eastland argues that the president should vigorously use the veto power to defend his office against congressional attacks. "I was trying to interest conservatives in the argument that, if limited government is your goal, you need a strong presidency to effect that end," Eastland says. "If you have a presidency that's simply passive, given the inertial tendencies of Washington, the central government will only grow." Eastland was director of public affairs in the Reagan Justice Department, and, in his book, he drew on ideas that had percolated in the department throughout his tenure. Other conservative thinkers were coming to similar conclusions about executive power at the time as well. In 1988, the American Enterprise Institute held a conference on "The Fettered Presidency," later published as a book that began: "The office of the president of the United States has been significantly weakened in recent years and ... Congress is largely, but not entirely, responsible." That same year, the Supreme Court rejected the Reagan administration's claim that the independent counsel law was unconstitutional--by a decisive 7-1 vote. (The decision was written by Rehnquist, who came of age in the '50s hating the centralizing excesses of FDR; the only dissenter was Scalia, a former head of the OLC under President Ford.) Nevertheless, when Bill Clinton took office, his Justice Department did not entirely reject the broad vision of executive power asserted by Reagan and the first President Bush. During the '90s, the OLC was relatively cautious in its assertion of executive power, with a little more respect for congressional prerogatives, but it still mostly embraced the Reagan and Bush administrations' views of the unitary executive. "I strongly upheld executive power and handed it on largely intact," recalls Walter Dellinger, who took over the OLC in 1993. In particular, Dellinger recalls, he opposed "many proposals that emanated from the Clinton White House that would have been harmful to the executive. One said a president couldn't propose a treaty unless he'd had an environmental impact statement and waited 60 days. I went ballistic. " Dellinger wrote important OLC opinions defending the authority of the president to decline to enforce laws he believes are unconstitutional. And his successor, Randy Moss, defended Clinton's right to send troops to Kosovo without explicit authorization from Congress. "There's nothing wrong with the phrase `unitary executive,'" Dellinger tells me. "What's wrong is the way the second Bush administration interpreted the phrase." Dellinger agrees that the president has "inherent authority in the absence of any congressional legislation.... Their view is that, whatever the president has inherent authority to do, Congress can't override it." How did the idea of the unitary executive morph from a defense of the president's ability to control the administrative state to an assertion of unchecked presidential power during wartime? Credit the evolution to Dick Cheney, whose suspicion of Congress predates even the Reagan-era attorneys who developed the unitary executive theory. In the mid-'70s, young conservatives working in the Ford administration--including not only Cheney, then chief of staff, but also Scalia at the OLC--felt besieged by the post-Watergate laws that Congress had passed to restrain the president, in particular the War Powers Resolution, which requires the president to withdraw troops if Congress hasn't passed a resolution authorizing them within 60 days. When Congress voted to cut off funding in South Vietnam in 1975, they felt it had undermined Ford's foreign policy and usurped power from the executive branch. When Cheney went on to serve as a Republican congressman from Wyoming in the '80s, the Iran-Contra scandal only reinforced his view that presidential power needed to be defended. Cheney commissioned the minority report to the Iran- Contra hearings--drafted with the help of a young aide named David Addington-- arguing that most of what Reagan had done was legal. As Jane Mayer noted recently in The New Yorker, Cheney cited the Iran-Contra minority report and the legal limitations of the postWatergate era as a threat to Hamilton's vision of executive power. "I believe in a strong, robust executive authority," he declared, "and I think the world we live in demands it." When George W. Bush took office in 2000, the various threads of pro- executive power conservatism--the Watergate-scarred Ford veterans, the Reagan OLC team--united with younger members of the Bush OLC to embrace aggressively the idea of the unitary executive. With Cheney's encouragement, Addington (his longtime legal adviser) combs legislation in search of infringements on the president's power. As The Wall Street Journal reported in January, Bush used the phrase "unitary executive" in 110 signing statements and other executive documents between 2001 and 2005, compared with Reagan (one), George H.W. Bush (six), and Clinton (zero). The Bush administration's most dramatic expansion of the unitary executive theory came in memos drafted by Addington and John Yoo at the OLC concerning the war on terrorism. An OLC memo drafted by Yoo two weeks after the September 11 attacks insisted the president, rather than Congress, had "plenary constitutional power to take such military actions as he deems necessary and appropriate to respond to the terrorist attacks upon the United States on September 11, 2001." Another memo, influenced by Addington, claimed that there were essentially no legal limits on the CIA's treatment of foreign prisoners held outside the United States. Yoo's initial view that the president could use force abroad without congressional authorization was not especially radical: It stemmed from a scholarly article he had written in 1996, expanded last year into a book called The Powers of War and Peace. In the book and article, he argued that, although the president doesn't need Congress's approval to send troops, Congress can control the president by cutting off funds for wars of which it disapproves. But the OLC memos and executive orders defending torture, warrantless wiretaps, indefinite detention, military tribunals, and those insisting the Geneva conventions do not apply to the war on terrorism went much further: They argued that Congress can't control the president in the war on terrorism, even if it wants to. In a forthcoming book, War by Other Means, Yoo defends the president's ability to interpret (critics would say ignore) federal laws in the war on terrorism so they are consistent with his vision of his constitutional authority. "Throughout much of the war on terrorism after 9/11, President Bush has said to Congress, `I don't require or need detailed statutory authorization for some things.' His power as commander-in-chief already gives him that authority," Yoo tells me. He argues, for example, that the president can conduct surveillance without using the procedures mandated by the Foreign Intelligence Surveillance Act based on his constitutional authority as commander-in-chief. "When wars occurred abroad, no one raised problems about the president conducting surveillance abroad," Yoo tells me. "Because 9/11 is a war occurring just as much here as abroad, that means we have this push to have presidential power exercised at home that's different from the previous American experience." But, according to Democratic and Republican critics, Yoo has converted the president's authority to act unilaterally in the face of congressional silence into the authority to act unilaterally in the face of congressional opposition. "There is a strain of legal reasoning in this administration that believes, in a time of war, the other two branches have a diminished role or no role," Republican Senator Lindsey Graham declared after the Hamdan decision. As Dellinger tells me, "They conflate what the world was like before Congress has acted" with the one after Congress has made its views clear. In the Supreme Court's Hamdan ruling, Stevens's majority opinion explicitly rejected the Bush administration's most extreme view of executive unilateralism. Citing Justice Robert Jackson's famous opinion striking down President Truman's effort to seize the steel mills in 1952, John Paul Stevens declared, "Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers." Stevens added, "The Government does not argue otherwise." (In fact, in an earlier hearing before the appellate court, the government did argue otherwise, asserting the president's power to ignore unambiguous congressional limitations or to stretch ambiguous congressional authorizations beyond the point of plausibility.) Hamdan was an example of the Court doing what it does best: not imposing a contested constitutional vision of its own, but forcing the president and Congress to define a shared constitutional vision by working together. If anything, Bush's radical unilateralism may have provoked the Court to overreact. In Hamdan, the Court did not merely hold that the administration needed to get Congress's approval to set up military commissions. It also held that any commissions established by the president had to comply with the Geneva conventions. According to Jack Goldsmith, former head of the OLC under Bush, "The argument that the Geneva conventions apply to transnational terrorists in wartime contradicts 50 years of executive branch understandings." In their eagerness to repudiate Yoo's vision of the unitary executive, in other words, the justices have constrained the executive branch even more tightly than it was constrained before. In this sense, Bush's extremism may have ultimately weakened executive power in the same way Clinton did when the Supreme Court rejected his sweeping assertions of executive privilege in the Monica Lewinsky investigation. By taking implausibly aggressive positions before the Supreme Court, both presidents precipitated a judicial backlash that left their own authority diminished. And that may be the ultimate irony that both sides failed to anticipate.

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