First, the Times's James Risen examines the state of presidential power for the 44th president in light of recent set backs to the Bush administration, and finds that the 44th President--whomever that is--will inherit an office with more power than previous presidents (this axiom has been true for every recent president beginning with the Reagan administration). Risen, however, seems to think that the surplus of presidential power is a new thing:
"...the next president will inherit powers much expanded since the 2001 attacks on New York and Washington."
Granted, the Bush administration has been very aggressive in pushing the envelope of Article II, but so have previous presidents. The key difference between the current and previous administrations is public awareness of the push, and clearly this administration has made once obscure strategies household names. But it is not correct to assume that one is more aggressive than the others.
In Risen's piece, he refers to the group of legal minds advising John McCain, and the list is telling. Called the "Justice Advisory Committee," it includes a number of attorneys who have been proponents of executive predominance in the constitutional system, starting with one of the co-chairs--Ted Olson--who served in the Reagan, Bush I and Bush II administrations and has been clear on his stance regarding presidential power. It was Olson, recall, who was part of the Supreme Court case challenging the independence of the "independent counsel." From there, it is a who's who list of conservative legal scholars on the front lines of advancing the unitary executive theory of presidential power:
- William Barr, who was head of OLC in the Bush I administration and wrote a famous memo to all executive branch agencies demanding they look out for the top ten types of congressional encroachment upon executive branch prerogatives;
- Rachel Brand--she worked in the Office of Legal Policy during the current Bush administration and a unitarian;
- Steven Calabresi--one of the founding fathers of the Federalist Society. He worked in the Reagan Justice Department and was instrumental in advancing the signing statement as a strategic weapon. Calabresi is also credited as a founding father of the unitary executive theory, unveling it formally in a 1992 law review article;
- Charles Cooper--worked in the Reagan Justice Department's OLC and was also on the ground floor in pushing the signing statement and presidential power;
- Charles Fried--worked as the Solicitor General in the Reagan administration, advancing the preeminence of presidential power in the US Courts. Fried commented back in the 1980s that it was the responsibility of the president and his staff to leave the Office in better shape than they found it.
The law--and a big one--was the very first piece of legislation introduced into the House under Democratic control in 2007. H.R. 1 put into effect the recommendations made by the 9/11 Commission. This law was part of the promise that Democrats made in the lead up to the 2006 midterms that if elected, they would pass.
One part of the law ("Implementing Recommendations of the 9/11 Commission Act of 2007") requires the president to appoint a White House coordinator for preventing terrorism. In particular, Section 1841--"Office of the US Coordinator for the Prevention of Weapons of Mass Destruction Proliferation and Terrorism"--establishes this new office in the EOP with a Coordinator (and staff) who is appointed by the President and confirmed by the Senate.
It is the duty of the Coordinator to: 1) serve as principal adviser to the President on all matters involving the prevention of WMDs and terrorism; 2) developing a comprehensive and well-coordinated strategy for prevention of WMDs and terrorism; 3) lead inter-agency coordination of US efforts to implement the strategy and policies for the prevention of WMDs and terrorism; 4) conduct oversight and evaluation of any initiative or policy in the area of prevention of WMDs and terrorism; and 5) overseing the development of a comprehensive and coordinated budget for programs and initiatives in the area of prevention of WMDs and terrorism.
In January 2007, the administration sent a SAP to the House arguing that this new position had a number of problems. Mostly, it is "unnecessary given extensive coordination and synchronization mechanisms that now exist within the executive branch, including the Sept. 2006 National Strategy for Combating Terroism which sets forth a comprehensive multi-layered strategy to combat the threat of WMD terrorism." Bush echoed similiar concerns in the SAP he sent to the Senate on its companion bill, S.4.
Yet when President Bush signed the law in August, 2007, there is no mention nor challenge to Section 1841. The only thing that President Bush does write, perhaps alluding to this section, is that he has issued "numerous Executive orders, Presidential directives, and national strategies" as well as signing "into law the Intelligence Reform and Terrorism Prevention Act of 2004, the PATRIOT Act, and other important pieces of legislation." It appears that his position on the Section 1841 is that it is redundant and unnecessary. Bush further notes that Congress has not passed all the recommendations of the 9/11 Commission and most importantly the Congress has failed to implement the Commission's recommendations that Congress reform itself in order to better conduct oversight of the intelligence communities in the US. Thus Bush may also be reasoning that he need not act upon the mandates of the law because the work has yet to be finished. But whatever his reason, he didn't place it in the signing statement, where such challenges are normally found. As Bender writes: "This time...the White House seems to be ignoring the nuclear terrorism coordinator requirement not for constitutional reasons but simply because the administration thinks it is a bad idea. It is a stance some legal scholars called an even more blatant disregard of the checks and balances on presidential power."
There is nothing new in the actions (or non-actions) of the president. Quite often the Congress creates a position within the Executive Branch, demanding that the president appoint a certain type of individual and then share any of information coming from this position with the Congress itself, only to find that the president refuses to appoint anyone because it violates his constitutional powers.
I hope to find out more about this particular maneuver since it might represent a new manifestation of presidential strategy. Rather than make public the reasons why the president is challenging a provision of law (as is the case with signing statements, proclamations, or executive orders), the president may be making the case internally without public scrutiny. Or perhaps the president has invented a new device that we have yet to stumble upon. Whatever the reason, something different has happened and it behooves us all to find out what that is.
