Executive Power & People Power

A forceful executive branch certainly did not start with the G. W. Bush administration.

The application of the Constitution evolves over time, and most Americans alive today have witnessed the increasing power of the executive branch. The expansion of executive power has come in spurts, and often at the hands of presidents who we revere today -- but never without opposition and debate. Today, Americans are once again bitterly divided on the question of the constitutional limits of presidential power, and many are turning back to the Constitution for answers.

• Desperate Times… - The President as Commander-in-Chief
• Inherent Powers of the Presidency
• A Unitary Executive & the “Sole Organ” doctrine in foreign policy
• Executive privilege: secrecy v. public information
• Constitutional conflict and the 2007 Intelligence law
• Legal theory & presidential power - The Court reasserts itself
• What about Congress?
• The President and US
• Presidential power – not just a partisan issue

A Government of Laws

"The executive shall never exercise the legislative and judicial powers, or either of them, to the end that it may be a government of laws and not of men." -John Adams

Our constitutional system is based on a combination of cooperation and competition among the three branches of government.

In a constitutional system that emphasizes checks and balances, it is natural that presidents throughout history have sought to expand their power at the expense of Congress. Throughout history, the balance of power has ebbed and flowed.

What many find troubling about the Bush administration’s particular take on executive power is that it seems to leave no other branch with recourse to challenge its claims.

Open for Interpretation - Presidential Power in the Constitution

The Constitution is short; it cannot and does not attempt to cover every possibility. The definition and limits of presidential power it actually spells out are vague and imprecise, leaving leeway for subsequent generations to interpret the role as they saw fit – and requiring us to do so continuously. The founders debated and disagreed about presidential power. James Madison was very concerned with the idea of a king with elite powers, while Alexander Hamilton conceived of an executive with much broader powers. But the delegates faced a practical problem: they had come to the constitutional convention to create a new system of government, and they were determined to do so.

The Constitution that was ultimately ratified does not grant imperial powers to the president. The president is empowered to execute the laws, not to create them or to deviate from them.

But the dispute over presidential power was never really resolved – and the result has been an ongoing tug-of-war between Congress and the executive, and a continuing debate about the relationship between the president and the people, especially during times of war.

While the Constitution deals explicitly with checks and balances among the three branches of government, what it doesn’t spell out is the critical role that the electorate plays in determining and shaping presidential power. But that’s not to say that the Constitution doesn’t touch on the vital role that the people can and must play in mediating between the executive and legislative branches.

In our system, our representatives in Congress have few incentives and many disincentives to challenge the president – but they do have to listen to their own constituents. That’s one reason that the Constitution specifies short terms and frequent elections, particularly in the House. In the interest of patching together a working government from a diverse pool of opinions about what leadership should look like, the framers left out some critical details – but what is clear from the Constitution that emerged is that we can and must affect national policy, by applying pressure on the president through our representatives in Congress.

Desperate Times… - The President as Commander - in - Chief

During war times, a President assumes the role of Commander-in-Chief of the armed service as well as political leader of the nation.

But while the Framers clearly did intend the president to be Commander-in-Chief of the army and navy, “what they meant by that was not that he would be Commander-in-Chief of the nation,” according to Professor Geoffrey R. Stone, Law Professor at the University of Chicago

Even in war, the Constitution divides and separates the powers between the Congress and the president. A president cannot declare war by herself or himself. The Constitution gives Congress the power to declare war in Article 1, Section 8. But there has always been a tension between this power and presidents’ constitutional role as Commander-in-Chief.

The president must always get backing from Congress, who also controls war funds or “has the power of the purse”. The House plays an important part in passing the foreign affairs budget and overseeing the executive by investigating how that money is used.

The Senate has particular influence on how U.S. foreign policy is conducted because it must advise and consent to all treaties and all nominations of the key foreign policy officers who represent the United States around the world.

Like wartime presidents before him, George W. Bush has stretched previous limits of executive power –sometimes at the expense of the other branches- in the name of fulfilling his constitutional role and securing the safety of the nation.

Inherent Powers of the Presidency

Almost from the beginning, the sparse description of executive power in the Constitution has been interpreted to include powers that are not explicitly mentioned, but are considered to be built in, or “inherent” to the office.

The impreciseness of our Constitution makes interpretation and extrapolation necessary. In the case of foreign policy, which is frequently unpredictable, and requires quick, informed decision-making, assuming additional inherent presidential powers is particularly useful.

Since 1936 it has been recognized by both Congress and the Supreme Court that the president has “special and pronounced” power in foreign policy – but that doesn’t necessarily mean free rein (and certainly not free reign).

A Unitary Executive & the “Sole Organ” doctrine in foreign policy:

"The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.” -statement made in 1800 by John Marshall.

The Constitution designates foreign policy roles to the executive and legislative branches that are different, but overlapping. One of Congress' key roles is oversight: monitoring the military and diplomatic activities of the executive to keep mistakes from happening or from spiraling out of control once they do.

In some cases, of course, it makes good sense to consider the President the “sole organ” of foreign relations – imagine all 535 members of Congress partaking in delicate negotiations with a foreign leader.

The idea of the President as the sole organ of foreign policy becomes problematic when it is used to assert an inherent right that is not subject to legislative or judicial constraints, effectively placing the president above the law.

The current administration has come under fire for claiming inherent rights and asserting that they are exclusive to the executive, and therefore not subject to legislative scrutiny. These include the right to collect intelligence by any means the President orders (including from American citizens and on American soil).

Perhaps most troubling is the assertion of a right to disregard provisions of International treaties, signed by previous presidents, or U.S. laws that hinder the president’s ability to conduct the so-called “war on terror" as he sees fit. This new claim of executive power was demonstrated in the administration’s decision not to apply the Geneva Conventions to certain persons. A 2003 memo on torture from the Department of Defense states that “criminal statutes are not read as infringing on the president’s ultimate authority” as Commander-in-Chief, and that established prohibitions on torture cannot apply to interrogations.

In other words, Administration has the authority to decide what is or is not the law by virtue of the executive assuming his military role. Congress, on the other hand, has been criticized for abandoning its responsibility for oversight and ceding its authority to the executive for fear of being labeled “unpatriotic” after 9/11.

For example, although the CIA has been banned from conducting or participating in assassinations since 1976, Congress did not respond when the CIA used an unmanned plane fitted with a missile to kill a senior al Qaeda leader in the Yemeni desert, also killing a naturalized American citizen.

Executive privilege: secrecy v. public information

Although the Constitution does not refer to executive privilege at all, presidents since George Washington have insisted that in order to exercise their constitutional authority, they need to be able to withhold information from the legislative and judicial branches by the President or by one of the executive departments.

Most times, executive privilege is asserted for national security reasons, to make sure that presidents can speak candidly with their closest advisors, what President Bush calls the need for "crisp decision-making."

A problem arises when secrecy precludes oversight, particularly in an area where the president already has special power. Plus, thanks to its enormous intelligence apparatus, the executive branch also has another advantage: the ability to create secrets. Executive privilege exists to protect the public good, not the political interests of a president and his staff. The ability to withhold information from the branches responsible for keeping presidential power in check is, by definition, vulnerable to abuse. Richard Nixon's use of executive privilege to conceal his crimes in Watergate is the most infamous example.

In U.S. v Nixon, 418 U.S. 683 (1974), Supreme Court ruled that the Constitution does give the president a privilege against mandatory disclosure of his communications when he is speaking with his closest advisers, but that it can be overcome when "weighty and legitimate competing interests" are at stake.

Since then, lower courts have struggled to define what a congressional committee must show to overcome privilege, and to whom (besides the president) the privilege should be extended.

The courts have made it clear that when Congress or the courts demand information and the president claims executive privilege, there has to be a balancing of the needs of the different branches.

The Bush administration asserted executive authority and added a new twist to the debate over privilege, saying that the Justice Department will never be allowed to pursue contempt charges initiated by Congress against White House officials once the president has invoked executive privilege. More than just a claim to privilege, they are also claiming the courts have no jurisdiction to decide whether the claim is valid. The bold new assertion comes as a response to contempt charges initiated by Congress against current and former White house officials in an attempt by to find out information about the suspicious firings of nine U.S. attorneys.

In the current controversy, Bush may be overreaching: Congress has a clear constitutional right to investigate and the president will have to make a strong case that divulging information would cause some harm to the public good

The Supreme Court has made clear that executive privilege is not simply what the president says it is. New claims must be evaluated case by case by a court, balancing the need for accountability against the national interest in keeping the president’s decision-making process private. Critics contend that the claim comes dangerously close to allowing the executive to define the scope and limits of its own powers, undermining the system of checks and balances outlined in the Constitution by making oversight impossible.

Constitutional conflict and the 2007 Intelligence law

Despite an escalating battle between the legislature and the president on the crisis in Iraq, Congress approved broad new surveillance powers in August, 2007. They could extend executive power further by allowing the Bush administration to conduct spy operations that go well beyond wiretapping, and which previously required court approval if conducted inside the United States. By removing nationality as a condition for spying on individuals, the act reflects and entrenches a critical element of the ‘Bush Doctrine’: the policy that if you harbor a terrorist, you are as culpable as the terrorist – a proposition that many believe has contributed to disastrous foreign policy decisions

The new powers and the direction in which they could take US foreign policy are considered troubling by some congressional Democrats and constitutional experts. There is still heated debate over how much power Congress gave to the president, how the law will be applied, and how swiftly it was pushed through Congress and passed.

Though many Democratic leaders opposed the final version of the legislation, they did not work forcefully to block its passage, largely out of fear that they would face criticism for being soft on terrorism.

The ambiguous wording may be fixed, but it is still unclear how the law will actually be enacted. The legislation gives the Director of National Intelligence, and the Attorney General broad discretion in enacting the new procedures and approving the way surveillance is conducted. At the heart of the debate over executive power is the question of whether the administration will consider the legislation legally binding, or simply ‘advisory.’ Senior Justice Department officials refused to commit the administration to sticking to new legislation, and left open the possibility that the president could again claim what they have described in the past as his constitutional authority to do whatever it takes to protect the country, regardless of any action Congress takes.

Legal theory & presidential power - The Court reasserts itself

The Supreme Court reasserted its constitutional role in forming foreign policy with its decision in Hamdan v. Rumsfeld. The ruling rejected the Bush administration’s assertion that they have the power to hold and punish suspected terrorists, whom they labeled as enemy combatants.

The Court dismantled the administration’s legal theory that the Commander-in-Chief has the right to conduct the "war on terror" as he sees fit, as if it were a declared war between nations. The ruling also challenged the administration’s use of Congress’ authorization to "use all necessary and appropriate force" against individual terrorists after September 11th. Some legal scholars say that the administration’s domestic surveillance program would have been limited or prevented by a more precise Congress. However, some legal theorists argue that the Hamdan decision does not affect the surveillance program at all, pointing to a 2002 appeals court decision that found that Congress could not infringe on the president’s executive responsibility to obtain foreign intelligence. At issue is presidential power and Congress’ influence on war activities. We see that the Supreme Court can also affect war, holding to the constitutional definition of the president’s Commander-in-Chief role.

What about Congress?

Congress has been widely criticized for abdicating their constitutional power for oversight, and capitulating to the president’s demands to conduct the “War on Terror” as he wishes. The Supreme Courts agrees: in Hamdan the Court explicitly encouraged Congress to reassert its right to be specific about what the president can and cannot do.

Since the beginning of the twentieth century, Congress has made sporadic attempts to limit presidential power. In response to the Vietnam War, the Watergate scandal, and revelations of domestic spying on American citizens, Congress passed laws such as the War Powers Act, which sought to curb the president's authority to wage war without congressional approval.

In practice, however, Congress did not make great strides in reclaiming its control over war power, and actually gave the president more authority over foreign policy.

Some say that the administration’s extreme interpretation of executive power and privilege, and Congress’s failure to act sooner could lead to a constitutional crisis.

Congress has the authority to hold a person in contempt if the person's conduct or action obstructs the proceedings of Congress or an inquiry by a congressional committee.

Under long-established procedures and laws, the House and Senate can each pursue two kinds of criminal contempt proceedings, and the Senate also has a civil contempt option. Contempt power has generally been used to compel witnesses who have refused to appear before committees and answer questions. Under statutory contempt, following a contempt citation, the presiding officer of the chamber that issued the citation refers the matter to the U.S. Attorney for the District of Columbia. Although the U.S. Attorneys work for the Justice Department, and are technically members of the executive branch, it is their "duty" under the law to refer the matter to a grand jury for action. Both the House and the Senate also have an "inherent contempt" power, recognized by the Supreme Court as inextricably linked to Congress’s constitutional power to investigate. Under inherent contempt, the individual is brought before the House or Senate by the Sergeant-at –Arms, tried in-house, and can even be imprisoned if found in defiance of Congress. Although widely used during the 19th century, the power has not been invoked since 1934.

Inherent contempt has been described as “unseemly,” cumbersome, time-consuming and relatively ineffective,” and disruptive, especially to a modern Congress with a heavy workload of legislating.

If the administration refuses to follow laws passed by Congress, and continues to assert that the Justice Department cannot pursue contempt charges once the president has invoked privilege, Congress will face a difficult choice – and our input will be critical. The result would be a direct constitutional show-down, unprecedented in modern times.

The President and US

"The executive power is more easily confined when it is one… it is far more safe there should be a single object for the jealousy and watchfulness of the people” -Alexander Hamilton, Federalist Paper No. 70

Our constitutional system is set up so that our representatives in Congress are most directly accountable to the people - if they do not represent our preferences in national politics, they will be penalized in local elections.

Presidents, however, possess a unique claim to represent the entire American people, by virtue of being elected by the nation as a whole.

Claiming more presidential power, presidents throughout history have reiterated this connection to the people and pointed to the strong executive described by Alexander Hamilton Federalist 70 – a conception that didn’t make it into the constitution, but which never went away.

Theodore Roosevelt, often called the first modern president, described himself as “a steward of the people” and claimed a constitutional right and responsibility to take any action on behalf of the people, unless expressly prohibited by the Constitution.

Moreover, Roosevelt articulated the aspect of the presidency that he called "the bully pulpit," the president’s unique ability to raise issues and policies to the public consciousness, just by speaking about them publicly. His words and actions created strong precedent for future presidencies.

Presidential power – not just a partisan issue

Particularly since the rise of mass media, presidents have appealed directly to the people to get Congress to pass their proposals, and carefully cultivated public opinion in order to make these appeals more useful.

A close direct relationship between the president and the people does not guarantee more responsive policy making on the national level. Cutting Congress out ignores a fundamental reality of our system – no matter their party affiliation, members of Congress are most directly accountable to their constituents.

The current face-off between a Democratic Congress and a Republican president may appear partisan on the surface, but history has shown that it is easier to change the party in control of government than it is to undo claims of greater executive power once they have been made.

Particularly now, in the Brave New World created by September 11, security and freedom live in considerable tension with each other. We the people must decide if we are willing to allow the president to do what he (and someday she) feels is necessary in order to protect the country or should we instead rely on laws set by Congress to guide the president through the maze of security and freedom.

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