Presidential Power Grows: Will You Love Every Future President?

Presidential power has been on a pathway of expansion beyond what the Constitution outlined, and what a government of, by, and for the people requires, since George Washington was president. That expansion, which hit the highway after World War II, got a turbo boost during the co-presidency of George W. Bush and Dick Cheney.

Some of the new powers that those two stole from Congress, the courts, the states, and us the people are being abused less severely in this new age of Obama; others, more so; but far more crucially, in a pattern followed by recent presidencies, all are being maintained, if not expanded, and thus more firmly cemented into place for future presidents to use. Wherever you fall on the political spectrum, you are likely to strongly oppose some major decisions of some future presidents. So it shouldn't be hard to envision some pretty undesirable consequences that might flow from presidential power that increasingly approaches the absolute.

Our television news and newspapers don't seem terribly interested in this story, despite scraping its surface with reports on the many "czars" Obama has appointed or lectures on the importance of renewing, or only marginally amending, the PATRIOT Act. And Congress seems, if possible, even less interested. That's not so surprising, given that we've replaced the three branches of government with the two parties, so that at any given time roughly half the members of Congress take as their leader a president who is theoretically supposed to execute the will of Congress. And the other half usually obey their party's "leaders" in Congress, whose primary interest is in electing one of their own as the next president. Both parties continue to value presidential power itself either for its uses in the present, or for when their candidate is elected. Everyone wants to inherit the imperial presidency, not constrain it.

Under these circumstances, bills to create commissions investigating presidential abuses, to place a judicial check on claims of "state secrets," limit the use of presidential signing statements, or to allow more than eight members of Congress to be given "security" briefings by the executive branch prove not to be priorities for either party.

These days, the old-fashioned idea of checking executive abuses of existing laws through the issuance of subpoenas or by impeachment is, in Washington, widely considered a scandalous proposition. Congress impeached a judge this year who had groped his employees, but Jay Bybee, who signed secret memos purporting to legalize aggressive war and torture, and who now holds a lifetime seat on the Ninth Circuit Court of Appeals, is protected from such a step by his recent membership in the executive branch (and the displeasure Fox News would express toward his impeachment).

In April, Senator Patrick Leahy, chairman of the Senate Judiciary Committee, asked Bybee to testify, and the judge refused, just as many of his former colleagues in the Bush administration had in 2007 and 2008. Leahy may be unwilling to follow up by issuing a subpoena that even the new Department of Justice might refuse to enforce. The current department, for instance, allowed the White House Counsel to negotiate partial compliance with a House Judiciary Committee subpoena by former presidential advisor Karl Rove. And if Leahy is like most members of Congress, he will not even consider the option of using the Capitol Police to enforce a subpoena himself -- something that no committee has done in 75 years.

All Power to the President

Any quick survey of the powers the presidency now claims would have to include the power to make laws, the power to make wars, the power to spend money, the power to make treaties, the power to grant immunity for crimes, the power to operate in secrecy, the power to spy without warrants, the power to detain without charge, and the power to torture.

Laws are still made by Congress, but they can be rewritten via signing statements; that is, statements announcing a president's intention to violate particular sections of the very bill he is signing into law. Neither Congress nor President Obama has thrown out all of Bush's extensive signing statements that did indeed alter laws. In fact, Obama has announced that his subordinates will review his predecessor's signing statements only as the need arises.

This policy might please those imagining that the Obama administration will always make the right decision about whether to maintain or reject a Bush-made amendment to a law, but it does nothing to strip the presidency of the power to use the mechanism of the signing statement to re-make or amend or alter new laws. As it happens, Obama has already published his own law-making signing statements.

Presidents now also routinely determine national policy through executive orders and, in doing so, run the country out of the White House rather than through departments headed by officials approved by Congress. They also increasingly dictate a legislative agenda to Congress -- and both members of Congress and members of the public generally accept without comment or opposition that inversion of our constitutional system. And then there are the secret memos.

In those secret memos, Bush's lawyers in the Department of Justice dutifully "legalized" numerous illegal acts, including aggressive war and torture. Despite years of public back-and-forth between the White House and the Congress over the question of whether to ban torture, any act of complicity in torture was already a felony in the U.S. code under the Anti-Torture Act, which enforced the Convention Against Torture signed by President Ronald Reagan. However, the secret Justice Department memos were taken as the final word in legality, no matter what the law said.

Obama has directed the Justice Department not to prosecute those at the highest levels responsible for producing those memos, though he has permitted consideration -- whether seriously intended or not -- of the possibility of prosecuting a handful of low-ranking staffers who strayed beyond the illegal policies outlined in the memos. Not only does this bestow immunity on the most prominent criminals, reversing the approach -- starting at the top -- that the U.S. took at the Nuremburg war crimes trials after World War II, but it has the potential to create a terrifying precedent for the future. If a president can use his justice department to legalize a crime simply by asking a lawyer to write a memo, then who can doubt that a president has something approaching absolute power?

Presidents, not Congress, do indeed make wars now, whether or not they consult Jay Bybee's memo on the subject. They make wars without congressional declarations of war, using instead vague bills to maintain a pretense of congressional involvement -- and then they don't even comply with the terms outlined in those authorizations. Illegal (as well as unconstitutional) as they may be, these wars can be expanded into apparently permanent occupations that include the construction of gigantic military bases from which additional wars may be launched. In the process, mercenaries often take the place of soldiers, and as "private contractors" they then operate even further from congressional oversight or the law.

To invade Iraq, President Bush spent money not appropriated for that purpose. He also gave himself the power to transfer money into "black budgets" beyond the purview of all but a few members of Congress, and so use it for secret tasks signed off on by his officials. Of course, massive secret budgets under the control of the president are nothing new, though they've grown through the years. Neither are they constitutional or sustainable.

On October 6th, the leaders of the two parties met with President Obama and, by Senate Majority Leader Harry Reid's account, let him know that he could end, decrease, maintain, or escalate the war in Afghanistan and Pakistan as he saw fit. The Senate had voted the previous week not to call on war commander Stanley McChrystal for public testimony about that ongoing war until after the president determines his war policy, which of course means a war policy for all of us. Two days later, in a surprising flicker of dissent, House Appropriations Committee Chairman David Obey released a statement suggesting that, contrary to everything he'd said for years, he recognizes that Congress has the power to choose not to fund those wars and thereby to end them.

As his presidency was winding down, George W. Bush concluded an unofficial treaty (though it was called a Status of Forces Agreement) with the government of U.S.-occupied Iraq for three more years of war there without feeling the slightest need for it to be ratified by the Senate. Ever since, the U.S. military has actually violated the terms of that document, while its key commanders continued to publicly state their intention to remain in Iraq beyond the end of 2011, a clear violation of the agreement. In the meantime, this White House has used the treaty as cover for an ongoing illegal occupation of Iraq with, at this point, 120,000 U.S. troops and tens of thousands of private contractors.

Is Congress Broken?

When many feared that Bush might pardon his subordinates for crimes he had himself authorized, the consensus among members of Congress and scholars was that he could, in fact, do such a thing. In some ways what both Bush and Obama have actually done is worse. With a big assist from Congress in the form of bills like the Military Commissions Act and the FISA Amendments Act, they have worked to grant immunity for crimes without even naming the criminals or revealing what they have done. Obama's Department of Justice is now arguing, appealing, or re-appealing in various court cases to keep secret the abuses of government officials and corporations involved in torture and warrantless spying. Recently, the Justice Department even argued that, when it comes to denying information to a court or the public, telecommunication corporations must be considered a part of the executive branch of the federal government, and earlier this year the administration threatened the British government with an end to intelligence sharing if it revealed evidence of torture.

President Obama announced that he will only claim the right to hide information from a court on the grounds that important "state secrets" are involved after careful review by lawyers at the Department of Justice. This may be an improvement over the Bush years -- not exactly a hard standard to reach -- but notably this decision still cedes not an ounce of power to any branch other than the executive, even as Obama's lawyers make radical "state secrets" claims in attempts to block entire court cases, rather than over particular pieces of information.

While this president is ceding modest amounts of territory claimed by the previous one, he is ceding nothing when it comes to presidential power itself. For example, the president said he would release White House visitor logs (as the Bush administration had not), just not those already recorded, including the ones that held records of the visits of deal-making health insurance executives, nor any future logs that he thinks would endanger "national security." That offers change of a sort, however modest, but leaves it entirely in the president's hands to decide which logs to release.

This administration has indeed released some of the secret memos that Bush's Department of Justice used to justify torture and never shared with the public, but only when compelled by courts. The Justice Department has, in fact, fought fiercely against their release and has redacted significant sections of them before making them public.

Bush claimed for the presidency the power to detain people without charge or legal process -- and then used it. Obama stood in front of the U.S. Constitution in the National Archives in Washington and asserted the same power, in violation of the right of habeas corpus found in that torn and tattered document. Director of Central Intelligence Leon Panetta and presidential advisor David Axelrod have similarly made clear that the president still claims the power to engage in "harsh interrogation techniques" but chooses not to use it. Torture in this way has been transformed from a crime into a policy choice, with the intended message apparently being that we can stop torture temporarily by choosing to elect Democrats. This is perilous territory.

Perhaps presidents simply cannot be expected to give back powers gained by the executive branch, but shouldn't we expect Congress to work to take them back on our behalf? When Alberto Gonzales resigned as attorney general, he did so because a rapidly growing list of members of Congress signed onto a one-sentence bill directing the House Judiciary Committee to investigate possible grounds for his impeachment. Such an approach toward Judge Jay Bybee could begin to restore the power of Congress to assert itself in other areas as well, while pressuring the Justice Department to enforce the law, and potentially making public a great deal of information through the subpoenas involved in any impeachment hearing, which does not permit claims of "executive privilege." Information subpoenaed in an impeachment hearing must be produced, or the failure to produce it can become another impeachable offense.

Many of us probably consider our current president a much nicer guy than our local congressional representative. That doesn't change the fact that influencing a president, or even a senator, via grassroots pressure is infinitely more difficult than influencing a member of the House of Representatives.

This is not a new discovery. After all, isn't this, in part, why the House was given the power of the purse and the power of impeachment? Being closer to the ground, that body is, by its nature, going to be more amenable to democratic pressure and direction. If we want once again to have a real hand in making our nation's policies, our best shot -- admittedly still a distinctly uphill course -- is to focus on the person who represents us in the House.

Unfortunately, we have to compel each of them to do something they have come to collectively fear: taking back the power originally bestowed on them and not on behalf of their party, but of their branch of government, of the Constitution to which they've sworn an oath, and of the proper sovereigns of this nation: we the people. Otherwise the chief legacy of the Obama years will, like those of his immediate predecessors, be the slide from republic into empire and the continuing growth of an imperial presidency.

David Swanson served as press secretary for Kucinich for President in 2004, runs the AfterDowningStreet.org website, and is the creator of Impeachbybee.org. His new book is Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union (Seven Stories Press). He is now touring the country for the book. You can find out when the tour will be in your town by clicking here.

Copyright 2009 David Swanson

 

Comments

[bipolar2]

** ship of fools sailing to Byzantium

A Senator can be bought by the top two health insurance providers at less than $1.00 per $1,000 dollars of profit. Most people expect nothing better.

Obama flails where Bush II failed. Headed by an ill-willed administration or a good-willed one, the trajectory of the US has kinked sharply downward.

Failure to cooperate and rampant avarice are symptoms of decline, not its causes. Once in power, its possessors strive to retain it regardless of damage inflicted on the people, on infrastructure, on civil liberties.

Obama inherits powers usurped by a rogue VP and arrogated by figurehead. Obama does not reject those illegitimate internal war powers. He welcomes them as any Caesar would.

He dare not reject the sunk-cost fallacy of continuing external warfare — he must appear strong although he alienates the people and lower ranks of the military.

Everything is choreographed for 2012 — Obama cannot be seen in public except surrounded by adoring, pre-screened crowds. His administration is already byzantine.

The logic of retaining power as an end is totally different from using power as the founders intended “for the general welfare.” Obama imagines that he is moving towards the latter even as he is dictated to by the former.

The Romans understood the behavior of all ensnared by the logic of power as an end — “Those whom the gods wish to destroy, they first make demented.”

[pajoly]

A benevolent dictator is still a dictator, though I'd hardly call Obama a dictator; he is not able to get passage of anything substantial (unless it is a gimme to big finance).

Congress is the real problem. We do not have a loyal opposition. We have a system where the opposing sides are now expected by their voters not to cooperate on ANYTHING with the other party, no matter the national importance.

But the fixes required are monumental, even Constitutional amendment level stuff, and this country is not capable of marshalling itself to action unless it feels an external threat. Even during the Great Depression, Americans were timid as lambs and apathic as stone in terms of domestic changes.

Some major changes needed, even if it requires Constitutional amendments:
1. Redefine Freedom of Speech to only include political speech.
2. Publicly finance ALL campaigns for Congress and the presidency. Forbid even spending ones own money.
3. Revoke the tax exemption for all churches. Period.
4. Require all advocacy groups, non-profit too, to reveal their funding sources.
5. Eliminate the ruling that makes corporations efffectively people.
5 more below

[pajoly]

6. Require passage of a basic citizenship test to gain voting eligibility.
7. Require a two-thirds vote of Congress before troops beyond the size of a battalion can be sent to foreign soil.
8. Require publishing of the visitor logs of all members of Congress and the president monthly, including private meetings outside the official halls of power unless permitted by a court to be withheld for national security reasons or the privacy considerations of an individual voter.
9. Establish a national law that make total compensation of any American (includes athletes, owners, entertainers, corporate execs, etc.) higher than 100x it's lowest paid hourly and/or salaried employee, part time of otherwise, whichever is lower, taxable at 91% (Eisenhower era top progressive rate).
10. Increase the numbers of senators to 1 per every 2 million of population, but with a minimum of 1 senator per state so the sparsely populated states can no longer dominate the power of the senate.

[Gidster]

Excellent ideas!!!

[quiviran]

Good ideas

[olympus6]

Power corrupts.

The only way this stuff ends is when it gets so bad that it has to. Of course, we could get a 'leader' of an even more imperial mindset. Then what...

[williamwilliam]

Congress, and therefor our system of government,
has been broken since at least Iran/Contra.

Back then I couldn't figure out why the legislative
branch had determined to abdicate its
Constitutional duties and prerogatives and
roll over for B movie actor and ad pitchman from the 1950's.

It smelled bad, but I chalked it up to some strange fluke.

Having no interest in politics, I had no idea back then how deep the rot was.

[serena1313]

The expansion of executive power under Bush was alarming; It is still equally alarming under Obama. However there is a fundamental difference between acting legally vs acting illegally. Bush's contempt for the law repeatedly violated the law. Although his positions were challenged in the courts Bush did manage to get some laws partially changed wrt: 1) indefinite detentions 2) states secrets in addition to amending FISA all of which retroactively legalized what he had done illegally. As a result the policy positions Obama adopted now have a legal foundation.

Bush, having argued the president has the inherent authourity to indefinitely detain anyone (whereas Obama defers to Congress for that authourity), partially won US vs. Hamdi in 2004. The Court ruled that the president could detain a US citizen, deemed an enemy combatant, indefinitely (or until the end of Afghanistan war).

After the SCOTUS rejected Bush's argument (3 times) that independent courts had no authourity to review the legality of detentions at Guantanamo, Bush evoked the states secrets law and it worked: numerous cases were dismissed by the federal courts on those grounds.

Bush was heavily criticized because he acted outside the law. Now that the laws have changed, Obama is acting within the law. So it is up to the House to change those laws and restore the check-and-balance system. Because regardless who occupies the WH, "power corrupts and absolute power corrupts absolutely­."

[TheHandyman]

Finally! I've been posting this thesis here since before Obama was elected. There is nothing surprising here in this article. And that is how it should be. What is surprising is that it took someone of notability to finally write about it. I'm just a dumb Handyman so what do I know? Anyone who stayed awake during history or studied the Roman Empire could have seen this one coming. Of course Obama is just so darned smart and he is playing tri-dimensional chess while the rest of us are playing checkers that we can't see his game plan. His game plan is as obvious as the end of our noses. So far he is batting zero. He has blinded People and the World with Hope and Change so that even before he actually does something, he is given a Nobel Perace Prize!

[3fingerbrown]

You're right about the Romans. They learned that you can have a republic, and you can have an empire, but you can't have both. The president who began the transition from the American republic to the American empire was FDR-- "our Augustus," as Gore Vidal refers to him.

[SolarPowerGuy]

Mr. Swanson, the most relevant paragraph in your fine article -- at least as it pertains to this week's news -- is the one that begins thus: "Obama has directed the Justice Department not to prosecute those at the highest levels responsible for producing [the] memos" which authorized the use of torture.

And that, in my view, is exactly why the Nobel Peace Prize rings so false to progressives.

[colah]

While Bush was signing away like a madman & changing the power structure of the Executive Branch, my conservative friends were like kids in the candy store, huge smiles and high-fives for how we were so much safer because the Pres had taken charge.
Now, when I remind them that all those powers have been passed on to Obama, they get a very unfomfortable look and talk about it being an Obama plan to socialize America. (like he was somehow influencing Bush).
I had hoped Obama would roll back some of this power but so far to no avail. In the end, if they arent repealed a REAL threat will arise when somebody like (or worse) than Bush takes office & we find we are only one executive order away from suspended elections and marshall law.

[twofish]

??? We already are one executive order away from martial law. I forget the number of the signing statement, but basically, the president can declare it any time he deems it necessary.

[Yermammy]

Nice going David. I haven't posted in a long time at your AfterDowningStreet.org blog, but I still read it.
Your boy Chip thought I was taking advantage by posting artwork so I said "I'm done". I still pull for ya, though :)

[SewaneeLeftist]

Extremely good article, Mr. Swanson, although quite depressing, too. The old saw, "power corrupts, and absolute power corrupts absolutely," seems to come into play here.

It's VERY worrisome that our President is continuing these extralegal or to me illegal activities, and I condemn it just as I would if Shrub were still in there continuing the assault he and 5-Deferment Dick Cheney started.

I do believe that our President is doing this more for the office than for the policies, but that really doesn't matter if it perpetuates these abuses. Democracy works when citizens hold elected officials accountable and everyone makes certain that the checks and balances from the separation of powers and duties are actually checking and balancing those powers.

I don't agree with Mr. Swanson that the two party system has replaced the three branches, however, simply because neither party is monolithic enough or unified enough to substitute anywhere. The factions and sects in both parties add up to about six parties, depending on the issue being discussed.

Eternal vigilance is the price of democracy, someone said, Churchill, Twain, or Dorothy Parker, I'm not sure which, but the disproportionate spread of power needs much vigilance from the public to slow its spread.

[viper234]

2010 is a starting point. It's time to send third party candidates to Congress. If the people can change the make up of Congress, then the people have a chance to start taking back their government, and Congress in turn will be pressured to perform one of its most important functions -- to check the powers of the executive branch, and in this case, scale back the powers of the executive branch. Fracture the two party system in 2010!

[MrBadger]

I think this article is spot on! The genius of our founding fathers was the separation of powers. They were sacred to death of creating a system which could be taken over by a despot. And yet, as the author pointed out, this system hash been eroding slowly since the beginning, but has been accelerating rapidly since WW II. Yet neither "side" seems concerned about it. Both sides just want to get their hands on it and keep it out of the oppositions hands. No one seems willing to suggest that the "ring of power" be not used and instead destroyed in the fires from which it was made.

And the congress seems only to happy to abrogate its responsibilities (as envisioned by the founding fathers, it was the congress in which the real power was suppose to be vested) so that it doesn't have to make the hard decisions and take the blame. I know it has become a bit of a cliché to compare us with Rome, but... isn't that exactly what happened with the Roman Senate? It prefered to hand power over to Caesar rather than take responsibility itself. It is time we woke up to the fact that, as former Supreme Court Justice Sandra Day O'Connor noted - our current trends could lead to dictatorship. We could loose our Republic on this path!

[ResidualSelfImage]

The last President I loved was JFK he was shot when I was 9.

Now the NWO is in control.

http://www.infowars.com/obama-poised-to-cede-us-sovereignty-claims-british-lord/

[TrekBear]

Without a massive rebellion, the likes of which I do not foresee any time soon, America,as a Constitutional Republic, is dead.

[FirstShirt]

Hang in there bud. Just don't believe either the leftist or rightest rap. Most are trying to fill their own pockets with money or power.

FDR created Social Security and incarcerated thousands of japanese citizens for their race and without due process of law and he is considered a great progressive.

Nixon was loved by many conservatives and he opened up China diplomatically while claiming to want to end the war in Viet Nam. Then he showed how flawed he was in Watergate.

As Churchill said, deocracy is a very bad form of government but the others are so much worse.

[marignymitch]

Lots of Obama apologists remain. I suspect they're OK with the growing police state. Because this time it's Obama reading their mail and listening to their phone calls and preemptively detaining them without charges. What could go wrong?

[Gidster]

Growing police state????? Get back on the meds....Bu­sh created it, Obama, to my chagrin has not rolled them back, but the idea that this is a "Growing police state" is just so much paranoid ranting...­.