A Properly Powerful Executive
Bush has done a solid job of safeguarding presidential
prerogatives
MATTHEW J. FRANCK
How fares the constitutional presidency after eight years of George W. Bush? Bloodied but unbowed, I think. Over two terms notable for overheated partisan fears and attacks on the president’s use of the Constitution’s executive power, the Bush administration has made some ill-considered tactical choices and suffered some setbacks, but by and large has vigorously and successfully defended the constitutional boundaries of the office.
From the beginning, President Bush appeared to understand the constitutional basis of his authority. After a 537-vote victory in Florida gave him a just-enough 271 electoral votes, Bush entered on the duties of his office with a blithe unconcern for the size or even existence of a “mandate” springing from the American people — more of whom across the nation had voted for Al Gore. Evidently recognizing that winning the office, by however narrow a margin, provides all the “mandate” one needs, straight from the Constitution, he vigorously pressed his agenda in Washington just as though he had won a landslide. This sent his impassioned opponents even farther round the bend. But Bush should be thanked, and not just by his supporters, for using his power without hesitation. It was good for him, for the presidency as an institution, for the Constitution, and for the country.
America is not well served by a shrinking violet in the Oval Office. The framers of the Constitution rescued republicanism, a form of government that had historically swung back and forth between tyranny and anarchy, by introducing a number of institutional innovations. One of the most significant was the “energetic executive,” with independent constitutional power concentrated in one individual, who is thereby made more powerful and more responsible than any shared-power arrangement would be, and who can act as a counterweight to an otherwise too-powerful legislature. The Constitution is built on an expectation of friction in the separation of powers, and its purposes are advanced by presidents who see their policy ambitions as bound up with an expansive notion of their office’s powers. “The interest of the man must be connected with the constitutional rights of the place,” said James Madison in The Federalist. These rights include reining in Congress when it overreaches, exercising vigorous leadership in foreign relations, and waging war with sufficient latitude to protect the nation from destruction.
So how should we assess George W. Bush’s maintenance of the “constitutional rights of the place”?
The veto. President Bush will leave office having vetoed fewer bills than any president in modern times — just twelve vetoes so far, of which Congress has overridden four. His first term ended with an astounding zero vetoes, a record last seen in a completed four-year term when John Quincy Adams was president. But is a record of few vetoes a sign of passivity, or of strength on Capitol Hill? In Bush’s case, it may be a little of both. Conservatives have chafed at Bush’s willingness to sign all manner of spending bills, but when one’s party controls the Congress, fiscal restraint should be accomplished before the bills pass in the first place. That didn’t happen. What the president got from congressional Republicans while they jointly spent all that money was their general support of his wartime presidency. Judged not on fiscal or electoral grounds, but on constitutional ones, this may not have been a bad bargain. Eleven of Bush’s twelve vetoes, some in direct defense of presidential power, have occurred since the Democrats took over Congress after the 2006 elections.
Signing statements. While President Bush was signing all those bills, he continued a practice that dates back to James Monroe but gathered steam under Ronald Reagan: the “signing statement,” which can explain the president’s understanding of a law’s limited reach under the Constitution — especially marking off the encroachments on his power that he will not countenance. Bush signed scores of such statements, but not outlandishly many compared with Reagan, Clinton, or his own father. And if one such statement is legitimate, what is wrong with a hundred?
Still, given so many, one wonders: Was this Bush’s substitute for the veto he was so chary of using? Perhaps, but in the contemporary legislative environment, with its multi-subject authorization bills and massive spending resolutions (some up against the fiscal calendar in wartime), it is hard to fault a pattern of decisions to accept any legislation that can reasonably be interpreted in a friendly fashion. With little historical understanding and less constitutional warrant, the president’s critics tried to gin up a sense of crisis about his signing statements. But the practice has been ably defended through administrations of both parties, and will doubtless continue under President Obama. Perhaps Bush’s enemies will belatedly discover that the president is a constitutional officer and not the legislature’s errand boy.
Commander-in-chief. In the elite media and the legal academy, one hears the constant cry that, under the rubric of war powers, “Bush is shredding the Constitution!” Historic practice and jurisprudence make such claims hard to credit. Jack Goldsmith, the former head of the Office of Legal Counsel (OLC) in the Bush Justice Department, rightly notes in his 2007 memoir The Terror Presidency that Bush has been the first war president to face “a hornet’s nest of complex criminal restrictions on his traditional wartime discretionary powers.” Unquestionably these restrictions make warfighting harder, with the president pulled between the imperatives of safeguarding the national security and respecting sometimes ambiguous legal obligations. President Bush has fortunately had very able lawyers in the executive branch who have helped him navigate these waters and advocate the cause of a vigorous commander-in-chief.
Goldsmith was one of those advocates, and his sympathy for the president’s purposes makes him one of the administration’s most cogent and balanced critics. He slams what he sees as its “open chest-thumping about the importance of maintaining and expanding executive power,” criticizes its “go-it-alone approach” when it might have accomplished more by working more cooperatively with Congress, and concludes that on some matters the desire of administration officials to “leave the presidency stronger than they found it” was pursued in ways that “seemed to have achieved the opposite.” With the evidence of some arguably improvident (and subsequently leaked) memos on interrogation techniques, some losses at the Supreme Court in the Guantanamo detainee cases, and the continuing lack of any comprehensive legislation for dealing with the terrorist threat, Goldsmith has a pretty good case.
On the other side, however, are the arguments of John Yoo, a former deputy at OLC who served before Goldsmith’s time, the unapologetic drafter of the interrogation memos Goldsmith withdrew, and perhaps the legal academy’s most forceful advocate of expansive executive war powers under the Constitution. In his 2006 book War by Other Means, Yoo argues that while “no grand statute” has been enacted for terrorist detentions and trials, nevertheless “congressional support for the war is a fact of life,” with the entire war effort resting on Congress’s funding, its authorization of the use of force, and the oversight of its leaders and committees. Beyond this minimal congressional involvement, he says, the president does not need any specific authorization; asking for it would only weaken the presidency. Yoo thinks we are better off in wartime with an active presidency and a largely hands-off Congress, due to the legislature’s “size, disorganization, and unwillingness to take political risks,” as well as the inherently less flexible nature of legislative efforts to pursue war aims.
Both men’s views have merit, and together they summarize the conundrum of executive power. Every president, especially in wartime, must weigh how much to claim unilateral power and how much to work with Congress. But two things are striking about the Yoo–Goldsmith debate.
The first is that their disagreement takes place almost entirely on the terrain of political science and not constitutional law. They differ on how well the Bush administration pressed its case in Congress, the courts, and the public arena, but agree that as a constitutional matter, the administration’s position was virtually unassailable. When Goldsmith describes the Supreme Court’s first habeas corpus ruling on the Guantanamo detainees, Rasul v. Bush in 2004, as “turning somersaults” with the law, prompted more by “extralegal factors” than by “controlling legal precedents,” Yoo would agree. And when Yoo remarks that the Court that decided Hamdan v. Rumsfeld two years later “displayed a lack of judicial restraint that would have shocked its predecessors,” Goldsmith could have said as much. But if Goldsmith is right in his assessment of the “extralegal factors” in play in the modern judiciary, then the presidency’s approach to the Supreme Court must be of essentially the same kind as its approach to Congress, the public, and the media. This is a truly alarming development, suggesting that what matters in the Court is not legal arguments and precedent but rhetorical appeals and the flattering of prejudices. The judge becomes just another low sort of politician.
