Curbing the Imperial Presidency
Here is my presentation from the Take Back American panel on "Curbing the Imperial Presidency." I’m sure it didn’t come out this way. But it might be close.
One year after the publication of his book The ImperialPresidency, Arthur Schlesinger wrote the following for a column in Harpers:
We hear a great deal today aboutthe presumably grim consequences of the impeachment of the President—an endlesspublic trial, a people divided, a government paralyzed, a nation disgracedbefore the world. But suppose the House of Representatives should decide notto impeach Mr. Nixon. That would have its consequences, too—consequencesthat deserve at least as careful an examination.
For the refusal to impeach wouldbe a decision as momentous as impeachment itself. It would and could beinterpreted only as meaning that Congress does not think Mr. Nixon has doneanything to warrant impeachment. It would alter the historic relationship ofPresidential power to the constitutional system of accountability for the useof that power. The message our generationwould send to posterity would be that Mr. Nixon, whatever his other disasters,had conceived and established a new conception of Presidential accountability,and that his successors, so long as they take care to avoid the crudities of aWatergate burglary, can expect to inherit Mr. Nixon’s conception of inherentPresidential authority and to wield the unshared power with which he will haveendowed the Presidency. Failure to impeach would be a vindication of arevolutionary theory of Presidential accountability.
Now, I agree with Schlesinger. The fear of an endless publictrial, of government paralyzed, of international disgrace—those are notsufficient reasons to avoid impeaching a President (or Vice President orAttorney General) who has overstepped his constitutional authority.
EW — I agree that impeachment is not enough and that culturally we must create a climate that discourages overreaching by the executive. However, have you given any thought as to specific legislation that should be enacted to prevent future attempts to establish a unitary executive?
There is a real problem with using legislation–when the Dems are in power, the Dems obey the law and the R’s try to underminwe them in any way possible. A Dem President needs strong tools. But even laws designed to weaken the Imperial Presidency can be ingored when someone like Bush/Cheney gets into a position of power. On legislation probably the best thing is laws that will to the extent possible give us fair elections and a level electoral playing field.
Part of what needs to be done culturally is to vet the candidates better, particularly on the R side. People are doing this now with Giuliani, who is a thoroughly scary person, as well aas the ambitious phonies Romney and Fast Freddy Thompson.
Replacing the Broders with the Digbys (don’t miss her speech) and the Emptywheels is another consumation devoutly to be wished.
As Digby said, the Clinton impeachment, the 2000 campaign and the Iraq War should have been enough for every one of us to say Never Again! We couldn’t prevent Bush’s reelection, but we are on the way to a better Congress, a fairer 2008 election and a Dem President. But the possibility of war with iranb stands between us and the election. We can never again withdraw our vigilance and let the government and the Dem Party run themselves.
I think that the report that looks at what the federal agencies are following in regards to presidential signing statements verus how the law was written will help shine a big spotlight on how damaging the unitary executive theory is. Why bother with a legistslative branch if the President does what he wants anyway? If Bush doesn’t follow the laws as written then his cronies are going to stretch them in ways that don’t necessarily benefit the nation. We are going to pay a high cost across the board for this unitary crap.
Why couldn’t we take the concept of the imperial presidency and use it against them. In such a way that they would also refute the efficacy of such a position. For example, if Bush is all powerful the very top dog, he accepts all responsibility for the failures and laws broken. He instead takes the fall for all of the behaviors of those working underneath him. Each of them prosecuted for laws violated if appropriate and the pres serves the cumulative sentence for all charged of violating laws under his imperialism.
Let them choose which type of presidency they really want. Imperial would mean responsible. (I know that’s not even close to how it’s practiced in any real time situation). But couldn’t you use the old black and white against them? Couldn’t the dems at least frame it this way for all the authoritarian types persuaded by such rhetoric.
If you’re the boss, be the boss. Take your punishment like a man, go down with your ship.
Stop! You’re all right! But therein hangs a tale.
No amount of justifiable indignation on our part will motivate a US Representative or Senator of either party who hides a similar record of guile and corruption as those in the crosshairs at present, such as Senator Lewis, or Representatives Jackson, Doolittle, or DeLay. Indeed, we have no way of knowing who of the Democrats and Republicans is holding back from pushing impeachment for fear of reciprocal finger-pointing and the prospect of jail time. They can’t be pushed; they must want, fervently, to jump in and do what’s right, regardless of how badly they themselves have acted.
No matter how well informed we stay, or how ’engaged’ we become, we can do nothing but sit and chew our fingernails while government committees often fecklessly question WH employees suspected either of wrongdoing or of having knowledge of official wrongdoing. We cannot, unlike the POTUS, waterboard the ones that have appallingly bad memories of governmental affairs–nor could we want to. We cannot put words in the mouths of our Democratic representatives, nor compel those Republicans even to attend the hearings (although they stay away at their eventual peril).
Regardless of our fervor we cannot (must not) grab torches and pitchforks and march on the White House, even if that scenario is inwardly satisfying. And there’s the rub. We cannot defile the basic motivating ethos of this nation and wrest power from them. They are free, as it seems, to defy and ignore the constitution, to pierce it and rend it, to rewrite it, in effect. Not us.
As long as there is a majority in this country who are ignorant of the Vice-President’s name, much less his venal ways, or of what habeas corpus means to them, there will be no effective groundswell of anger. As long as they in power can point to one faction and say, â€We must be doing something right,†we will be fighting with one hand tied behind our collective back.
While many in this country quietly condone torturing brown people whose relative’s relative’s relative MAY harbor a grudge against the US, while many could care less about the hundreds of thousands of Iraquis killed because of the US government’s unprovoked aggression, while Christian Supremacists hold sway over our government and spew the bile of hatred of everything Islamic, we’ll be ineffectual.
In the end, our voices will only be heard by those for whom there are no negative consequences in so doing. Given that we have no way of knowing the extent of the list of receptive ears, we will remain essentially powerless. And notwithstanding the heroic efforts of bloggers like you, Marcy, and the few who are entitled to the name of journalist in the traditional media, we will not get the message to the right ears, no matter what may come. For the aura of authority springs from Pennsylvania Avenue, and as long as that continues to play on the nightly news, competing with Paris (not France) or Pamela (not the Sheridan comedy), we cannot hope to prevail.
We need, therefore, to get a lot noisier, and to aim our words at the populace, not at those who populate the offices of Washington, DC. We need to shape our message in much the same way that the insurgents are doing with their IEDs–to inflict maximum behavior-change with what efforts we are able to make.
as coincidence would have it,
yesterday i began writing about
the topic of the nixon impeachment
as being an example of the fallacy
of the thinking underlying the so-
called â€unitary executive†theory.
in fact, to do so, all one need do
is read the proponents’ best-case-of-
why-it-makes-sense to come away with
the impression that. . .
it makes no sense at all. . .
but i do know that there is much
to ponder — and, ponder the irony, in particular — of
advancing the chronicle of unitary executives,
while simultaneously arguing that the chronicle itself
proves the soundness of whatever dubious constitutional
constructs are required to legitimize that very self-same
theory. . . so let us read some yoo, on nixon, then:
astonishing. . . in its irony.
i think this means professor yoo would
be only too happy to see mr. bush and cheney
impeached — as opposed to subjected to
the indignity of an independent counsel-
led investigation (see scooter libby case). . .
he he!
Wait a minute!
John Yoo is supporting the concept of a special prosecutor over an independent prosecutor? Which if memory serves is what Archibald Cox was–and was thus subject to firing, er, oversight, thus why the independent prosecutor law was passed?
John Yoo said that in the midst of the Libby appeal?????
Wow.
Great stuff, ew. I’m sure the presentation and panel were excellent.
Hate to see you play the cancer card, which has to be painful, but you do it really well and Cheney obviously deserves maximum firepower. It brings home the importance of the issues and the panel and the real gravity of the situation.
Also struck by the cultural discussion, and the reference to JH morphing law geek Fitz into Jimmy Stewart somehow. It is really striking how the good guys come off as, well, studly, while the weasels seem to all be out of central casting for villains. Part of this has to be our own bias, I suppose, but guys like Gonzo, Sampson and Schlozman who lie to congress with the tv lights on and then go back to their offices and disenfranchise and politicize are just plain smarmy. There’s something to the idea that the image is the message, so we’ll see if that doesn’t go somewhere if the good guys can pick up some momentum.
I’ve been writing along these lines for awhile and deleting it…I’m not nearly articulate enough, and it all seems so ineffectual and meager in the face of the overwhelming criminality of this administration combined with the complete lack of interest in the media to give voice to our frustration and outrage.
EW, your points are wonderful and your writing is clear; this is indeed how to both clean this place up and run the trains on time. I read your three points as adherence to the rule of law, reinstituting honesty as the backbone of public policy, and effectively marketing our strengths and their criminal weakness.
And I don’t think we see any of this instituted until and unless we achieve complete domination of all three houses of government. Only eight years of continual pressure will build a structure of Good Government and turn this structure into a cultural norm. What drives these points to become a cultural norm will be the pressure from us in the progressive blogosphere.
A lot of work ahead.
Excellent post, EW. Culturally, I think all that needs to be done is make clear that the backers and enablers of the Imperial Presidency are not neocons, not conservatives, not republicans, not idealists, not martyrs. They are, in fact, criminals. Very soon after the next election, we are going to hear voices imploring us to look forward, not back, and forgive the sins of the past. Let bygones be etcetera. We tried that after Iran/Contra, and there is a fairly long list of names from that debacle returning for another dip at the well of disaster. We need to put EVERYBODY who signed off on torture, rendition, wiretapping, politicization obstruction and perjury in JAIL, and make sure that none of them ever hold a position of power again. But we lefties are far too forgiving and nice. We will again smile and reconcile, because we are the adults, we forgive and we believe in second chances. But unless we spank these bastards hard and publicly, they will come back with their authoritarian fearmongering bullshit for another rightist grab at the brass ring.
I think we need, above all, to see clearly here.
It doesn’t matter so much if half of the people don’t know who the VP is (assuming that is true, since they certainly seem to tell pollsters that they don’t like him. We just need to convince a majority of the 50-60% of the population who is going to vote. On basic issues, the public is generally with us; they just don’t translate those views to candidates and issues because they aren’t so
used to thinking of government as something that can affect the problems of their lives.
On speaking out, it is probably the most important thing we can do, in whatever way we can. Remember the Gingrich/DeLay/Rove GOP maintained power partly through bluster and bluff, convincing everyone they were invincible, then building a machine to make that a reality. But they overreached and are being exposed as the crooks and liars that they are.
Raising voices that challenge the dominant narrative of the GOP and media is very, very important. The more people understand that their misgivings about the war and the Admin are shared by others, the less power the machine has, and the stronger individuals are in their dissent. That was the whole point behind the story of Sophie Scholl and the White Rose which I related a few days ago (I’m still not over that film).
The media narrative has to be changed as well. Some folks in the media apparently underestand this , but too many do not. The trivializers have to be constantly called on their trivializations and perhaps they can be shamed into changing, or else the media heads will realize that an Olbermann is better for the bottom line than a Glenn Beck or another empty but pretty head no one watches.
But it is going to take a decade at least to clean this mess up, and a great deal of patience is needed along with the passion.
to be fair — he wrote it in late 2004,
in the third of a three law review articles
chronicling the history of all 43 of our
presidents, and detailing all mentions
of a concept of a unitary executive. . .
but the nixon section — particularly as
to the highly-sanitized rendering of the
role of one robert bork — is astonishing
for its unintended irony, today. . .
cheers!
Impeachment was designed to be used rarely, but not so rarely that no-one dare use it.
The impeachment of Clinton, in that context, can be seen as an inoculation: calling dibs on the once-a-century impeachment of a president, making it harder to impeach a Republican successor. And it’s a gift that keeps giving, because if Bush isn’t impeached, then a Republican president that’s not as bad as Bush can say he/she shouldn’t be impeached either. And some time after 2050, a Democratic president will be impeached for farting in public, again calling dibs on that century’s use.
It’s a related issue that the strategy of Rove and his minions has been to corrupt the mechanisms by which that hegemony can be challenged: the voting system, the Justice Department. It’s not so much a cancer as an auto-immune disease.
Excellent post. One question: the goal should be reining in, not reigning in, the Imperial Presidency. Was that a deliberate pun, or a Freudian slip?
Another note and connection I made recently about Dick Cheney and the Imperial Presidency. It was in a forum with some semi-young folk who grew up buying the Reagan myth. I was remembering how Reagan was so clearly incapable of handling the seeming intellectual demands of the presidency, and pretty much everybody knew it. It was only in this context that I remembered that Bush Sr. was Reagan’s VP. Sr. was clearly no Dick Cheney as VP, but he was undoubtedly doing more than we think. He was a subtle guy, and had just been running the CIA, and the administration was pretty much his guys, I assume. He’s not really remembered as a VP, but it’s worth a look with the Cheney example and hindsight. He probably provided the blueprint and some of the trial and error for the grand bargain of Jr./Cheney/Rove. From his dad’s experience as president, Jr. (and Rove) probably saw that the Reagan frontman model would be extremely effective with some major tweaking. No accidents in this kind of global power play. Huge, tragic mistakes, but no accidents.
Emptywheel, I hope you guys used that little camera for this. And you’ll be screening it tonight at Jane’s?
FWIW, there is something about the â€unitary executive,†or the â€Imperial Presidency†that just rubs me the wrong way, regardless of its constitutionality. It just basically says, â€I am God, and what I say goes, and to hell with all of you little people and your elected representatives.â€
Sadly, the theory appears to have rubbed off on some others. The Speaker of the Texas House of Representatives, named Tom Craddick, declared in the closing hours of our most recent legislative session that he had â€absolute authority†to acknowledge the right of any legislator to make a motion. In that manner, he blocked any attempt from the floor to remove him as Speaker. He also blocked the efforts of many legislators to represent their constituents.
In essence, he halted the process of democracy in its tracks — just as Dick Cheney and George Bush have done. My personal feeling is that we have nothing to lose by starting the impeachment process. Unfortunately, there are no Barry Goldwaters or other Republican statesmen who can counsel the President. All of the current crop are afraid of their own shadows (or Karl Rove, or something). To wait any longer, though, may allow these lunatics to gain the final bit of power that they need to accomplish their dreams. Then, we will all be irrelevant.
No way Ronald Reagan was a front man for GHW Bush. Reagan had been a 2-term governor of CA. While he wasn’t an intellectual giant, he had a gift for the big picture, for ascertaining the feel of the public pulse, and for communicating with the public. (Of course he was way too far right.) He was the top candidate in 1980. GHW Bush may have had some responsibility as VP, but there is no way he played a role like Cheney. BTW he intensely disliked Rumsfeld, who he felt was a bureaucratic cutthroat, and, I believe didn’t like Cheney as well. Don’t know his relations with the CIA Old Boys, but it had to be much better than W’s, who was so influenced by Rumsfeld and Cheney.
The argument I keep hearing – from someone who should know better – is that ’impeachment will take too long because of the need to gather evidence and hold hearings’.
My response is generally along the lines of ’they have the public statements from speeches and press conferences; they have the sworn testimony in hearings already held; there’s more than enough evidence to start the procedure’.
(Not that I seriously expect a conviction, you understand, but I want it laid out so only the hard-core Bushies will still believe these people are anything other than criminals.)
Excellent post, EW. I am glad you brought up the cultural battle and Watergate and its relationship to Cheney and Horowitz and the Federalist Society.
The single biggest issue that I see is that there is no serious opposition to the forces that have been operating to gather power and rule with no accountability since the Nixon era. The first that I see is folks like you in the blogosphere. Where are the opposition Horowitz’s and Bork’s to fight the creeping coup de etat and subversion of the Constitution?
At the end of the day our Constitutional democracy can only function if the people and the press are vigilant as Ben Franklin’s famous statement to the effect that you have a republic if you can keep it. When the press gets corporatized and the owners of the media have their interests aligned with the radicals to take power and abuse it and be beyond the law the only stop to prevent what is effectively a dictatorship under the rubric of an Unitary Executive are active citizens.
We are in dangerous territory when the side that does not play by the rules and uses subterfuge have been working diligently to achieve their ends for decades and are better organized than those that believe in the Constitution and the rule of law.
Let’s also note that the Cheney crowd believe in the Imperial Presidency only for them and if the shoe is on the other foot they would be screaming the loudest. That’s what makes it even more dangerous and why we need to fight their abuse of power with every tool and why the Dems in the House should vote for impeachment even if they don’t have the votes in the Senate to convict. The authoritarians have decades head start – we need to catch up and knock them out and regain the republic.
The cultural question is really about more than belief. There are profound economic factors that need to be addressed truthfully as well if any cultural solution will be viable. In many ways the corruption of the system pertains to the reality of diminishing resources. The American experience is fundamentally a story of a nautical enterprising people meeting a fecund continent guided by a sense of justice through the 13th and 14th Amendment and later by the recognition of a workers’ rights to organize. The neocon agenda is fundamentally opposed to the notion of an enlarged public sphere and deploys privite extra-jurisdictional adventures in attempts to transcend the limits of the domestic economy. The polity is a means and capital, in this view, to be expended on behalf of this privite adventurism. This is why the privateer analogy has begun to resonate in the narrative of the neocon experience. The neocons surreptiously encumber the Republic for their private interests. Their instincts are nakedly oligarchical.
In contrast Roosevelt and Kennedy were well aware of the need for new frontiers as a public agenda. The true cultural challenge is in breaking the hydrocarbon oligarchy and forging ahead into the frontier of alternative energies. This push was underway through Gore’s guidance during the Clinton admininistration under the rubric of â€sustainabilityâ€. The economic stakes are vast. From the standpoint of governance the solution will have a novel appearance not fully conceived at this point. But as regrettable as it may be the old forms where we have been looking for solutions are long since arcane. The mystique of honor born of the World War II experience and carried forth into public service to the degree that Nixon was checked is no longer culturally available. The cost of litigation and the emergence of cultural relativism have evolved the practices of dipute resolution away from the principles giving rise to the rule of law toward a model where mediation and adjustment are the preferred and economical means. The imposition of federal legislation altering the basic portrait of the right to contract in the national credit markets additionally mark economic evolutions away from the principles which gave rise to the rule of law. The push for mandatory health care again is a prospect adverse to the fundamental right to contract. These are signals of governance by economic administration and arbitrage rather than constitutional principle. Perhaps a new and viable creative cultural vision of justice is emerging, but the death throes of the corruption of constitutional governance are not finished. The new emergent epistemologies that will enable the continued test of truth and quest for justice are not yet fully incarnate, especially as the most critical considerations revolve around both the emergence of honorable states of mind in relationship to evolving technologies of survival.
At the time of 9/11 we were at a cross-roads where a civil response of police action and weapons inspection stood at the brink to render military action obsolete with respect to the then emergent challenges. But still the oil equity interests were possessed of the ghosts of imperial horror. And the mono-media will continue to exert vast influence to maintain the status-quo by the allure of celebrity and the forces of symbolic intimidation. The test will come when the American psyche is called to cross the void away from the internal combustion engine toward new models of power, and whether those so steeped in hydrocarbon security, those who will argue a fight to the death for the right to pump gas, can live in the sense of uncertainty, fear and the reality of demographic upheaval that will surely accompany this transformation.
Excellent comments on the dangerous of the Imperial Presidency/Unitary Executive. Let’s not assume, however, that the Presidency must be constrained to allow for progressive policies. The weakened Presidency of the post Civil War period allowed many progressive policies to languish, and it took Theodore Roosevelt’s reassertion of the powers of the Presidency (within the law, of course!) that was the basis for much of the creative use of Executive Orders in many areas to counterbalance a resistant Congress.
AZ Matt — While the report was very useful, I don’t think most people understand that rules concerning government agencies are laws like any other, not just micromanagement and interference. I think their use of the machinery of government for personal enrichment and partisan gain is more likely to get the attention of the general public. People understand that stuff is wrong; the only way to ignore it is to pretend â€they all do it,†which is pretty weak.
The signing statements that much more clearly demonstrate their lawlessness are the ones that flout laws like the ban on torture, which have an effect outside of government, and which, conveniently, they block from oversight by invoking national security.
I think re-establishing respect for the law culturally has to go hand in hand with re-establishing that government belongs to us, not to the people that run it. Part of the destruction of the rule of law was the spreading of the cultural view that government was inherently illegitimate; â€government is the problem.†I think a lot of the anti-government and small-government supporters were genuinely surprised when they got their anti-government crusaders into power and they proceeded not to dismantle government but instead to undermine its legitimate functions and twist its powers for personal gain.
But just as we know that the majority in this country is neither culturally nor economically conservative despite how loudly those beliefs have been shouted, I do not believe that a majority dislikes government beyond grumbling about paying taxes and standing in line at the DMV. Progressives and our representatives need to stop being afraid or apologetic about saying that government is an appropriate part of the solution to many of our problems.
We need to state clearly that America works best for all of us with an appropriately regulated free market is combined with an effective government that does not leave anyone without money to fend for themselves. We then need to refuse to legitimize right-wing straw men (â€big government!†â€tax and spend!â€) by arguing against them directly, instead simply mocking them (â€oh, you think that the response to Katrina was just right, then?â€) and going on to talk directly to people who will actually listen to a rational case.
Mimikatz–Not sure this will show up, this late in the game, but I wanted to note that I wasn’t trying to say that Reagan was a front man for Bush Sr. in the same way that Bush Jr. is a front man for Cheney. IMO Reagan gets way too much credit these days and the Reagan Myth is just that, and I’m not sure I’m willing to concede that he had â€a gift for the big picture,†or that he really understood anything about the public pulse or communicating. His â€communication†was pandering to wealth and media, and what he was good at was projecting an image of leadership, and he also had some basic, core conservative principles that he was able to hold fast to, and it turned out fairly well for him. There’s no doubt that he was a simple guy, with an unsophisticated and poorly informed view of world affairs. He let other people do all of the heavy lifting and make virtually all of the decisions.
My point is that Jr. saw this, Rove saw it, Cheney saw it, and they developed their own model, which has turned into the neoImperial presidency. Jr., knowing that he didn’t have his father’s government experience, knowledge and subtlety, saw that Reagan was much more successful as a simple, wood-chopping front man, and he and Rove figured out how he was going to sell himself and the kind of image he was going to project. Jr. has been imitating Reagan from day one. And the next part of this, is that Jr. and Cheney (and Sr.) knew exactly what Sr. was able to do and how power worked under Reagan. With Rumsfeld and Wolfowitz tagging along and developing Cheney’s agenda, Jr. signed off on Cheney’s role, based I think on what the potential of the vice-president could be as it was explored under Reagan. I don’t think that Bush Sr. ran things as VP and Reagan was just a front man, but it was an important evolutionary phase in this political development. It’s just part of the explanation of how this freaking tragic Cheney global disaster occurred.
I agree that BushCo capitalized on the Reagan style and that he gets way too much credit for ending Communism. But did you live through the Reagan years? He certainly had a gift for communicating with middle Americans. We who saw through him (particularly here in CA) didn’t go along, but it is folly to deny his obvious communication skills, and the good use that his ad-men advisers put those skills.
The Constitutional crisis that we have today has its real roots in Gerald Ford’s decision to pardon Nixon. The message was given that there’d be no basic accountability for Presidents who break the law, because at that time an overwhelming majority of Americans (and the media) openly anticipated a criminal prosecution of private citizen Richard Nixon. It even had an encouraging effect on Nixon staffers who were not involved in Watergate, notably Donald Rumsfeld and Dick Cheney, the ultimate â€die-hard dead-enders†in US politics. And the legacy continues: Just today we learn that Cheney declared himself untouchable by Presidential Executive Orders he didn’t like. How can this possibly jibe with his claim of unilateral power to declassify, BASED on another Executive Order? It can’t, unless the President AND the Vice President are entirely above the law.