Tag: presidential power

Obama Allows Congress to Participate in Lawmaking

This headline appeared in Thursday’s Washington Post:

Obama allows Congress a voice in NSA

The story reports that President Obama “will call on Congress to help determine the [NSA surveillance] program’s future. Which is good because Article I, Section 1, of the Constitution of the United States provides that:

All legislative Powers herein granted shall be vested in a Congress of the United States.

Deciding the scope and extent of any federal surveillance powers is clearly a legislative matter. Subject to the constraints imposed by the Constitution’s limits on federal powers, legislative powers are vested in Congress, not the president. How can reporters (and headline writers) write so cavalierly about the president “giving” Congress a chance to “weigh in” on matters of fundamental law? This headline should be as jarring as one reading, “Obama plans to give Supreme Court a say in fate of NSA program.” It isn’t up to the president. The legislative branch is empowered by the Constitution to make law, and the judicial branch is empowered to strike down legislative and executive actions not authorized by the Constitution. The president’s job is to “take Care that the Laws be faithfully executed.”

Arthur Schlesinger Jr. wrote that the rise of presidential power ‘‘was as much a matter of congressional acquiescence as of presidential usurpation.’’ It’s time for Congress to stop acquiescing. And for journalists to remind readers of the powers granted to presidents in the Constitution.

Readings for Presidents’ Day

As government workers – though only about a third of private-sector office workers – get a day off for Presidents’ Day, I thought I’d offer some reading about presidents.

First, my own tribute to our first president, the man who led America in war and peace and who gave up power to make us a republic:

Give the last word to Washington’s great adversary, King George III. The king asked his American painter, Benjamin West, what Washington would do after winning independence. West replied, “They say he will return to his farm.”

“If he does that,” the incredulous monarch said, “he will be the greatest man in the world.”

Then, of course, Gene Healy’s book The Cult of the Presidency, which argues that 200 years after Washington, “presidential candidates talk as if they’re running for a job that’s a combination of guardian angel, shaman, and supreme warlord of the earth.” Buy it today, at a 50 percent discount!

Gene updated that argument with a short ebook, False Idol: Barack Obama and the Continuing Cult of the Presidency. As they say, start reading in minutes!

And then you can read my short response to Politico’s question, who were the best and worst presidents? I noted:

Presidential scholars love presidents who expand the size, scope and power of government. Thus they put the Roosevelts at the top of the list. And they rate Woodrow Wilson – the anti-Madisonian president who gave us the entirely unnecessary World War I, which led to communism, National Socialism, World War II, and the Cold War –8th. Now there’s a record for President Obama to aspire to! Create a century of war and terrorism, and you can move up from 15th to 8th.

Hmmm, maybe it would be better to just read a biography of George Washington.

 

Harold Koh and the Temptations of Power

So for three months now, we’ve been at war in a country that the president’s own secretary of defense admits is “not a vital interest for the United States.” Turns out, it’s also a war that the president’s own attorney general believes to be illegal.

That’s what I get from Charlie Savage’s recent reporting on how the White House “forum-shopped” its way to its current position on the War Powers Resolution, to wit, you’re not engaged in “hostilities” if you’re hitting someone but they can’t hit you back.

As the WPR’s 60-day deadline approached, the Pentagon’s general counsel and, more importantly, the head of the president’s Office of Legal Counsel, Caroline D. Krass, advised Obama that bombing Tripoli—even if done remotely, with little risk of immediate retaliation—counted as engaging in “hostilities” under the WPR, which meant that the president would have to terminate U.S. involvement or radically scale it back after the 60-day limit. As Savage reports, “Attorney General Eric H. Holder Jr. supported Ms. Krass’s view, officials said”—in other words, that if the president continued bombing Libya, he’d be violating the WPR.

Ordinarily OLC’s opinion would have the greatest weight here, but President Obama went with the advice given by White House Counsel Robert Bauer and State Department Legal adviser Harold Koh—who told him what he wanted to hear.

My Washington Examiner column today focuses on Harold Koh as an object lesson in the corrupting potential of power:

Harvard’s Jack Goldsmith notes that “for a quarter century before heading up State-Legal, Koh was the leading and most vocal academic critic of presidential unilateralism in war.” On the strength of that reputation, Koh rose to the deanship of Yale Law School in 2004.

And Koh seemed to take the War Powers Resolution pretty seriously. In 1994, for example, he wrote to the Clinton Justice Department to protest the planned deployment to Haiti, which was carried out without a single shot being fired:

“Nothing in the War Powers Resolution authorizes the President to commit armed forces overseas into actual or imminent hostilities in a situation where he could have gotten advance authorization.”

Who could have predicted that his legacy at State would be reading the WPR practically out of existence?

On Thursday, Koh took point at a press conference selling the administration line. The next day, he went before the American Constitution Society, the progressive alternative to the Federalist Society, to give a strikingly self-congratulatory speech about maintaining one’s integrity in “public service.” The relevant part starts at around 33:00 in. Highlights: “I’ve lived the life I wanted to live; I’ve said the things I wanted to say”…”I still believe in my principles”…”I never say anything I don’t believe”…”if you hear me say something, you can be absolutely sure that I believe it [including “the administration’s position on war powers in Libya”]”…”if I say it, I believe it, and I intend to stand by it”…”For what is a man?/what has he got? If not himself/then he has not…” (OK, not the last bit).

As I note in the column:

John Dean, who served prison time for his role in the Watergate cover-up as a young White House counsel to Richard Nixon, once said that young people should be kept away from top executive posts.

They lacked the life experience and independence needed to resist falling under the spell of presidents who want them to bend or break the law.

Koh was in his mid-50s when he joined the administration, coming off a distinguished career built on opposition to the Imperial Presidency. Yet the lure of being “in the room” when the big decisions are made seems to have turned him into the Gollum of Foggy Bottom.

Oh, and by the way, Charlie Savage reports today that piloted strikes continued past the 60-day time limit, so even if Koh’s legal rationalization could pass the laugh test, it wouldn’t fit the facts we have.

Law Professors against “Tyrannophobia”

Over at the American Conservative, I have a review of Eric Posner and Adrian Vermuele’s new book Executive Unbound: After the Madisonian Republic. Funny enough, the working title for my book on presidential power was “Executive Unbound,” but P&V have a very different take on the dangers of concentrating power in the executive (they coin the term “tyrannophobia,” for irrational fear of executive abuse).

From the review’s intro:

The New York Times book editors assigned their review to the Straussian political philosopher Harvey Mansfield, the self-styled expert on “manliness” who’s as rabid a supporter of the imperial presidency as you’re likely to find. In the late Bush era, Mansfield wrote a 3,000-word Wall Street Journal op-ed, “The Case for the Strong Executive,” arguing that defects in the rule of law ‘‘suggest the need for one-man rule.”

Yet even Mansfield blanched at Executive Unbound’s case for unbridled presidential power. He began his review by noting indignantly, “Eric A. Posner and Adrian Vermeule, law professors at Chicago and Harvard, respectively, offer with somewhat alarming confidence the ‘Weimar and Nazi jurist’ Carl Schmitt as their candidate to succeed James Madison for the honor of theorist of the Constitution.”

Gott im Himmel! A book that embraces a leading “Nazi jurist,” applauds the American presidency’s liberation from law, and is apparently hardcore enough to scare manly Harvey Mansfield? What sort of work is Executive Unbound? A Satanic Bible for worshippers of the strong presidency? The black-metal version of John Yoo?

As I dug into the book—while Tomahawk missiles rained down on Libya in yet another unauthorized presidential war—that’s what I was expecting. But Posner and Vermuele have produced something very different and, quite to my surprise, I liked it.

You can read the rest here.

Thursday Links

  • There is a growing gap between Washington policymakers, and the taxpayers and troops who fund and carry out those policies.
  • Why do budget and deficit hawks keep sidestepping growing entitlements?
  • Don’t forget to join us on Monday, March 28 at 1pm ET for a live video chat with Julian Sanchez on the growing surveillance state.
  • The individual mandate in Obamacare is another example of the growing congressional power under the Commerce Clause: