Topic: Law and Civil Liberties

‘After’ the Imperial Presidency?

Jonathan Mahler has a smart, informative feature on executive power in this week’s New York Times Magazine. I object only to the title, “After the Imperial Presidency.” As Mahler’s piece makes clear, the title could have used a question mark, at the very least.

Mahler writes:

Come January, the current administration will pass on to its successor a vast infrastructure for electronic surveillance, secret sites for detention and interrogation and a sheaf of legal opinions empowering the executive to do whatever he feels necessary to protect the country. The new administration will also be the beneficiary of Congress’s recent history of complacency, which amounts to a tacit acceptance of the Bush administration’s expansive views of executive authority. For that matter, thanks to the recent economic bailout, Bush’s successor will inherit control over much of the banking industry. “The next president will enter office as the most powerful president who has ever sat in the White House,” Jack Balkin, a constitutional law professor at Yale and an influential legal blogger, told me a few weeks ago.

Some prominent commentators — Jack Goldsmith and Jeffrey Rosen among them — have noted the “irony” that an administration monomaniacally committed to the growth of presidential power has allegedly weakened the presidency with its unilateralism and contempt of Congress. Given the powers the office retains and continues to accrue, that’s an irony that’s hard to savor. As Mahler notes, “it’s worth keeping in mind that in the final year of Bush’s presidency — while facing a Democratic Congress and historically low approval ratings — he was able to push through a federal bailout bill that vested almost complete control over the economy in the Treasury secretary (who reports to the president), not to mention a major rewriting of the 1978 Foreign Intelligence Surveillance Act that will make it easier for the White House to spy on American citizens.”

Indeed, Mahler documents how political realities— and in Obama’s case, perhaps, the prospect of actually taking power — led both candidates to move away from their early criticisms of Bush-style “deciderism,” and flip flop on torture (McCain) and wiretapping (McCain and Obama).

In explaining the post-9/11 growth of executive power, Mahler properly focuses on the twin problems of congressional cowardice and poisonous partisanship. In the Bush years, all too many congressional Republicans put party unity over institutional responsibility. That’s a common vice under unified government, which may be why Mahler hardly sounds optimistic when he quotes Senator Levin: “When I asked Levin what needs to happen for Congress to take back the rest of the ground that it ceded to the executive branch during the Bush years, he replied predictably, ‘We need a Democrat in the White House.’”

For further reasons to doubt that the Imperial Presidency is behind us, check here and here.

Whither Fusionism?

One of the victims of the Bush presidency, along with limited government and the Republican Party, has been “fusionism,” the idea that conservatives and libertarians ought to come together to oppose the forces of socialism (and The Left generally).  Indeed, this Tuesday’s election probably saw the highest-ever percentage of libertarians – depending on how you count them – vote for the Democratic presidential candidate (at least in the modern era, with the possible exception of the Nixon years).  This despite that Democratic candidate being commonly seen as the most statist major-party candidate in history.

Cato adjunct scholar Ilya Somin who blogs at the Volokh Conspiracy and in his day job is a law professor at George Mason (currently visiting at Penn) – Ilya being a popular name among libertarian legal community – today puts up a smart post on the state of the erstwhile libertarian-conservative.  Here’s a snippet:

Obviously, a lot depends on what conservatives decide to do. If they choose the pro-limited government position advocated by Representative Jeff Flake and some other younger House Republicans, there will be lots of room for cooperation with libertarians. I am happy to see that Flake has denounced “the ill-fitting and unworkable big-government conservatism that defined the Bush administration.” Conservatives could, however, adopt the combination of economic populism and social conservatism advocated by Mike Huckabee and others. It is even possible that the latter path will be more politically advantageous, at least in the short term. 

Indeed, if conservatives choose some version of the Huckabee-Palin route, fusionism is dead – and so, might I add presumptuously, is the Republican Party.  That just ain’t where the majority of the nation is, or where it’s heading (though, as Ilya says, that direction may be politically advantageous in certain parts of the country under certain circumstances).

But this type of discussion may be beside the point; libertarian-conservative (in the sense of socially conservative, economically squishy) fusionism may have run its course, a relic of the Cold War.  The new fusionism may well be fiscally conservative and socially tolerant (not necessarily liberal, just not wanting government to do anything about the way people live their private lives), including folks who might call themselves conservative cosmopolitans, crunchy cons, South Park conservatives, or indeed libertarians.  Or they might eschew labels altogether but are sick of the rot coming from (or to) Washington.  In other words: Purple America,

DEA in Afghanistan

As Ted Galen Carpenter has noted, the War on Drugs is active in Afghanistan. Below is a photo from the DEA website of Special Agents burning a bunker of hashish in Afghanistan. Repeat: These guys are DEA agents, not U.S. soldiers.

There is an undeniable connection between the narcotics trade and Taliban funding. However, any drug eradication should be pursued as a means of resource denial to insurgents, not as a goal in and of itself. We have to be smart about this. A major portion of Afghanistan’s GDP comes from the opium poppy trade – half in 2007, though down significantly this year. The quickest way to create an insurgent is to destroy a man’s livelihood. Opium eradication for its own sake will make the central government and Coalition forces increasingly unpopular and feed the insurgency.

The addition of the DEA into the equation makes this continued loss of rapport more likely. Some might make the case for having a good cop/bad cop strategy when dealing with local farmers – “tell us where the Taliban are or we’ll let the DEA torch your crops” – which would be persuasive if NATO troops weren’t already engaged in drug eradication. The addition of an agency with narcotics prohibition as its sole reason for existence guarantees that a focus on opium will continue with greater intensity and long after outliving its limited military utility.

For additional background, read this.

SCOTUS Hearts Obama?

Will the Supreme Court be more, or less, of a check on the president during an Obama administration?

My guess:  Less.

First, as Gene Healy notes, Barack Obama has every incentive to preserve and enhance the power of the president.  His “Yes we can!” Justice Department will not be filing briefs with the Court telling it to take the president’s power away.

Second, the judges rumored to be on Obama’s short list for the Supreme Court, like Harvard Law Dean Elena Kagan, are hardly unfriendly to the presidency.  As a scholar, Kagan is perhaps best known for her smart, nuanced 2001 law review article, Presidential Administration, which – while differing in many nuanced respects from Bush era legal framework for thinking about executive power – celebrates the president’s power to “jolt” bureaucrats “into action … [for] a distinctly activist and pro-regulatory governing agenda.”  She argues that federal courts should interpret the president’s statutory authority in ways that facilitate and enhance, rather than limit, the president’s powers.  Look for judicial appointments with similar views.

Third, my guess is that the Supreme Court as a whole, no matter who is on it, is likely to prove more congenial to Obama than it was to Bush.  As Neal Katyal argued in the Cato Supreme Court Review, Jody Freeman and Adrian Vermeule expand in the non-Cato Supreme Court Review, and Jack Goldsmith suggests in The Terror Presidency, the Supreme Court’s pushback against the Bush administration is at least partly a response to the Bush administration’s tin-eared and sweeping claims in favor of “inherent” executive power.  Even Bush’s Solicitor General, Ted Olson, is rumored to have advised this legal strategy would backfire by alienating the Court.

The Obama administration is likely to be smarter, by inviting the court to uphold various exercises of executive power on a case-by-case basis, rather than based on sweeping claims that the court must cede vasts swaths of decision making to the executive.  The court likes the former kind of argument for obvious reasons – it requires the president to check back with the court on an ongoing basis. But don’t fall into the Bush administration’s mindset.  A president who presents the court with smart, modest legal arguments for upholding his power don’t have less power.  He probably will have more.  As Katyal and others argue, the court may be more willing to give the President what he wants when the request is presented in a more modest fashion.

Fourth, remember that Justice Kennedy, the swing vote on the current court, famously votes his politics.  My guess is he is likely to side more often with an administration he likes and trusts – and that he will have an affinity for fellow cosmopolitan Obama’s, at least on the foreign affairs and national security front.

I’m guessing, for all these reasons, that those expecting the Supreme Court to continue to act as a drag on the centralization of power in the presidency, as it generally has in the Bush years, are likely to be disappointed in the Age of Obama.

A Rebirth of Freedom?

Back in July Sen. Barack Obama promised to repeal any executive orders that “trample on liberty”:

Barack Obama told House Democrats on Tuesday that as president he would order his attorney general to scour White House executive orders and expunge any that “trample on liberty,” several lawmakers said… .

The Illinois senator “talked about how his attorney general is to review every executive order and immediately eliminate those that trample on liberty,” said Rep. Jerrold Nadler, D-N.Y.

Good stuff! Perhaps that could include reviewing whether the federal government had any authority to partially nationalize banks, a sweeping intervention not authorized by Congress in the $700 billion bailout bill. Under what authority did the president and the secretary of the treasury start purchasing equity in major corporations?

Cato’s legal scholars would be happy to work with the new administration to review and rescind executive orders, signing statements, memos, and other documents that grant excessive power to the executive branch or otherwise “trample on liberty.” Some of the Bush administration’s excesses in this regard were reviewed by Gene Healy and Tim Lynch in Power Surge: The Constitutional Record of George W. Bush.

But I hope the new president realizes that Bush isn’t the first president to issue executive orders that “trample on liberty.” It was President Bill Clinton’s aide, Paul Begala, who drooled at the notion of using executive orders to do what Congress wouldn’t go along with: “Stroke of the pen. Law of the land. Kinda cool.” For a look at some pre-Bush executive orders that might warrant elimination, Obama’s attorney general might consult “Executive Orders and National Emergencies: How Presidents Have Come to ‘Run the Country’ by Usurping Legislative Power,” published by Cato in 1999. There he can find information about Clinton orders that nationalized land, sought to reverse Supreme Court rulings, rewrote the rules of federalism, and waged war in Yugoslavia.

As Obama himself has said in recent days, channeling Frederick Douglass, “Power concedes nothing without a fight.” Many people are skeptical that a new president will make good on his pledge to constrain executive power. But if he’s committed to the rule of law and the separation of powers, we’re ready to help.

What Next for the Third Branch?

The new president will have a chance to significantly reshape the judiciary. President Bush managed to confirm only 321 judges—about 50 fewer than Presidents Reagan or Clinton—so there are plenty of vacancies to fill. Moreover, Congress has not created any new circuit court positions since 1991, while federal appellate filings increased by about 50 percent since that time; only four percent more district judges have been created during the same period, while filings to those courts increased by about 25 percent. We can expect, perhaps even in the “first 100 days,” a new judgeship bill that will add to the vacancies President-elect Obama will have to fill. 56 percent of federal judges are now Republican appointees, and the Ninth Circuit (based in San Francisco and sprawling across nine western states) is the only federal appeals court with a majority of judges appointed by Democratic presidents. Obama will be able to change the former statistic and swing control of all but three circuits (of the thirteen) to Democratic appointees. And then, of course, we have the two or three Supreme Court nominations the new president will probably have in the next four years: Justices Stevens, Ginsburg, and Souter are each likely to be off the Court by 2012. It is not for nothing that pundits consider judges to be one of the most undervalued policy areas in this long, strange campaign.