Forget What You Have Learned

You probably already know what happens when the lame duck period kicks in for a president, right? It is the period of time where the president is at his weakest, as the country, and more importantly, political elites begin looking to the next administration and how to deal with the next president. The new president will not be able to get anything ambitious passed through the Congress because the Congress has no incentive to work with him, particularly when the other Party controls the Congress. You are probably taught this iron law of presidential power as early as high school government class, and most definitely there will be an instructor in the American Government 101 who will not just teach this fact, but will also include it on the exam. Typical of just how powerful this ideal is can be found in this May 17 story by CBS reporter Dick Meyer, who wrote: Short of another disaster on the scale of 9/11, George Bush no longer has the power, credibility or ability to effectively govern for the rest of his term in office.

While your Intro to American Government professor may want you to believe this, and even a reporter at CBS News will write it with certainty, the fact of the matter is, it is not true--or at least it is not true to the level of an iron law. Sure, the president's ability to get anything through Congress will be greatly diminished, and his ability to move the public won't be what it once was, it is wrong to count the president out. In fact, the president may be able to exercise as much power at the end as he did at the beginning.

Several years ago I served as a discussant on a panel where the theme was unique exercise of presidential power, and one paper described this lame duck power exercised by the president. The paper went on to get published in the flagship journal Presidential Studies Quarterly, and I recommend it highly to any of you interested in presidential power.

Titled "The Last One-Hundred Days" and written by William Howell (then at Harvard and now at the University of Chicago) and Kenneth Mayer (at the University of Wisconsin at Madison) looked at how the president turns to the administrative agencies in order to accomplish his goals, thus succeeding administratively where he would fail legislatively. Here is a list of things that President Clinton managed to do in his last year in office:

• He lowered the acceptable levels of arsenic in our drinking water from 50 parts per billion (ppb) to 10 ppb, which would go into effect in March 2001--leaving the political controversy in the lap of the new administration. When President Bush hinted at scrapping the rule and moving back to 50 ppb, the DNC ran television ads with a child asking its mother: "Can I please have some arsenic in my water, mommy?"
• In his last week in office, he issued a presidential proclamation which declared one million acres private land as public monuments. If the Congress wanted to reverse, it would have to repeal a 1906 law with a new law of its own.
• He had the DC license plates changed so that the words: NO TAXATION WITHOUT REPRESENTATION appeared, knowing that this was a thumb to the eye of the incoming Bush administration, which had publicly stated its opposition to statehood. Bush had to order the plates removed from the presidential limo before it drove him to the inauguration.
  

Today's "New York Times" has an article documenting the energy in the the Bush administration to push through as much of its remaining goals administratively before the clock runs out. "Times" reporter John Broder writes: "...President Bush has his cabinet and staff busily writing far-reaching rules to keep his priorities on the environment, public lands, homeland security, health and safety in place long after the clock strikes midnight and his limousine turns into a pumpkin." And sure enough, the administration is changing a number of rules that will benefit key political interests as he is leaving office--in such areas as environmental conservation and health insurance. All the rules represent the potential to add millions of dollars to the coffers of these business. For instance, the Office of Surface Mining just changed a rule regarding the waste from blowing the lid off mountain tops. It appeared that when coal companies would blast the top of a mountain, the run off would be allowed to spill into the valleys and rivers below, which led to the blocking of water flow or worst, poisoning the drinking water for hundreds of thousands poor families. The rule had been that the companies would need to insure that this didn't happen if they wished to engage in this manner of mining, but the new rule now clears the way for the dumping of "excess rock and soil into valleys and streams." So much for the poor Appalachians whose pitiful lives just got worse.

Before we all start looking toward the next administration, it would do us well to continue to keep an eye on the current one. The Founders worried that if you remove the prospect of facing the voters from a president, you take away any incentive he has to behave himself. Sounds about right.

Signing Statement Database

Neil Kinkopf, a law professor at Georgia State University School of Law, has published an index to all of George W. Bush's signing statements from 2001 to the present. Neil's categorization represents a continuing problem with reading the Bush administration's challenges--that there are terms that shift, which I presume was deliberate on behalf of the administration, to make it difficult to track. And Neil's count is about 100 less challenges than I have recorded to date. I spoke with Neil last February when we both attended the William and Mary Bill of Rights Society conference on presidential signing statements. He told me that he was working on a database, and that he was applying a more restrictive lens to recording a challenge, although I cannot recall what that is. I am in the process now of sorting out where are counts differ and why. I am sure this is something the administration hoped for as well. "Let's get several different counts out there, and then we can make the case how does anyone know what is and is not a challenge?" Maybe.

Either way, it is a handy index which I encourage you to use and critique, if necessary.

The "Terror" Presidency

Jeffrey Rosen has an article coming out in next Sunday's New York Times Magazine on Jack Goldsmith, an attorney who led the OLC in the Bush administration, and who resigned over the politicization of the DOJ, particularly over what he referred to as the "tendentious, overly broad, and legally flawed" torture memo. Goldsmith has a book coming out later this month titled "The Terror Presidency." After Goldsmith left the Bush administration, he landed at Harvard Law School, where his arrival was not warmly welcomed. Rosen writes: "During his first weeks in Cambridge, in the fall of 2004, some of his colleagues denounced him for what they mistakenly assumed was his role in drafting the torture memos. One colleague, Elizabeth Bartholet, complained to a Boston Globe reporter that the faculty was remiss in not investigating any role Goldsmith might have played in 'justifying torture.'"

Rosen interestingly characterizes the OLC, inside the Department of Justice, as "an entity that Rosen interestingly characterizes as "the division...that advises the president on the limits of executive power." I am not sure where he derives this description for the OLC. I would define it as "the division...that advises the president on ways he may push the boundaries of Article II power." For instance, how do you describe Walter Dellinger's memo titled "Presidential Authority to Decline to Execute Unconstitutional Statutes." Is that a memo on the "limits of executive power?" Only if it was titled: "The President's obligation to enforce unconstitutional statutes." This is made all the more interesting because later Rosen says that the OLC "interprets all laws that bear on the powers of the executive branch." That suggests far more aggressive behavior than one advising the president of the limits to his power.

Goldsmith makes alludes to the central role of the unitary executive theory and the problems it created--something he callls the "go it alone' view of executive power." He says: "They embraced this vision...because they wanted to leave the presidency stronger than when they assumed office, but the approach they took achieved exactly the opposite effect. The central irony is that people whose explicit goal was to expand presidential power have diminished it." This is similar to a paper written by Political Scientist Nancy Kassop at this past week's meeting of the American Political Science Association.

What does come out clear in the piece, and something that needs more investigation, is how the central role of the OLC broke down during the current Bush administration. It is clear that the power of the OLC derives from its ability to have the definitive say over what is or is not constitutional, overridden only in extraordinary circumstances by the attorney general or the president. In the Bush administration, there exists a group of individuals who can add to or take away from the OLC decisions from positions outside the normal loop that these decisions are made. These individuals can add constitutional challenges to bills moments before the president signs them, or they can "usurp legal-policy decisions that were properly entrusted to the attorney general." These individuals, who Rosen calls the "war council," are Alberto Gonzales (when he was White House Counsel), Cheney and Addington (and Libby), and John Yoo, who had "direct access to Gonzales [which] angered his boss, AG Ashcroft." If you wish to see the explicit influence of this group, then look no further than to the well-above average challenge contained in the Bush signing statements. It is clear that most of them are not coming from the OLC, which is where they normally originate. This goes a long way toward explaining why morale is very low among career professionals at the DOJ.

In all it is a very good article made possible by Rosen's relationship to Goldsmith, who he attended law school with. There are some parts that I quibble with. For instance, he argues toward the end that :

...the Bush administration’s legalistic “go-it-alone approach is the antithesis of Lincoln and Roosevelt’s willingness to collaborate with Congress. Bush, he argues, ignored the truism that presidential power is the power to persuade. “The Bush administration has operated on an entirely different concept of power that relies on minimal deliberation, unilateral action and legalistic defense. “This approach largely eschews politics: the need to explain, to justify, to convince, to get people on board, to compromise.”

First, during most of the time under discussion, the Congress was on board with whatever the administration wanted it to do. The fact is that the Congress was not exercising its constitutional responsibility to challenge the president and his approach to governing. Instead, they saw themselves as the "junior partner" to the president. If there is a danger that stems from the Bush administration's approach to governing, it was placed there in large part by the unwillingness of the Congress to stand up and block a number of these actions that we now regard as constitutionally offensive. Second, I again assume that the "legalistic go it alone approach" Rosen refers to is the unitary executive, and where the Bush administration is mistaken on how it works is to completely ignore the fact that there is a larger political context in which these arguments take place. Bush may be right on the merits, but if the political process and political climate is not sensitive to those merits, he might has well be "pissing in the wind," to use common vernacular. It is especially clear that the administration is tone deaf when it comes to recognizing the political climate.