Addendum

I got an email last night from Gene Healy at Cato, writing to take me to task for claiming his position on the Bush administration has shifted because Bush is about to leave office and a Democrat might win. In this post, my purpose was to respond to Healy's article in the recent issue of "Reason" on modern presidency. In the article I noted that a number of conservatives had begun to come out of the woodwork in criticizing the Bush administration's "abuse" of power. Because this was lumped into the same article, it gave the appearance that I lumped Healy into the same category of these other conservatives, which was not my intent. As I noted in the post, Healy and Cato issued the same sort of criticisms at the end of the Clinton administration as they do now at the end of the Bush administration. But because it wasn't clear, I apologize to Mr. Healy and reproduce his selective bibliography of articles and postings taking the current Bush administration to task. Let me also add my thanks for stopping by this blog to read and respond. I hadn't realized anybody did this! OK, the bibliography:

"Power Surge: The Constitutional Record of George W. Bush http://www.cato.org/pub_display.php?pub_id=6330 ," by Gene Healy and Timothy Lynch, White Paper, May 1, 2006.

"Stay What Course? http://www.cato.org/pub_display.php?pub_id=5164 ," by Gene Healy and Justin Logan, Reason (Online), November 2, 2005

"Geena Davis Is Not My President http://www.cato.org/pub_display.php?pub_id=5140 ," Reason (Online), October 18, 2005

"What of 'Posse Comitatus'? http://www.cato.org/pub_display.php?pub_id=5115 ," Akron Beacon Journal, October 7, 2005

"Domestic Militarization: A Disaster in the Making http://www.cato.org/pub_display.php?pub_id=5074 ," Cato.org, September 27, 2005

"Jose Padilla: Constitutional Unperson? http://www.cato.org/pub_display.php?pub_id=5043" Miami Herald, September 24, 2005

"Bush's Tortuous Choice http://www.cato.org/pub_display.php?pub_id=3991 ," Cato.org, July 15, 2005

"We're at War not with a State but an Armed Ideology http://www.cato.org/pub_display.php?pub_id=2828 ," Star Tribune, September 12, 2004

"Can the President Imprison Anyone, Forever? ," Cato.org, April 28, 2004

"Nourishing the enemy http://www.cato.org/pub_display.php?pub_id=4563 ," South China Morning Post, April 19, 2004

"Deployed in the USA? http://www.cato.org/pub_display.php?pub_id=2576 ," Cato.org, March 19, 2004

"The Era of Big Government Conservatism http://www.cato.org/pub_display.php?pub_id=4564 ," Cato.org, February 1, 2004

"Requiem for the Powell Doctrine http://www.cato.org/pub_display.php?pub_id=3209 ," Chicago Tribune, August 11, 2003

"Remake the World in America's Image? http://www.cato.org/pub_display.php?pub_id=3186" Cato.org, August 2, 2003

"The Case of the Missing WMDs http://www.cato.org/pub_display.php?pub_id=3132," Cato.org, June 19, 2003

"Why Hussein Will Not Give Weapons of Mass Destruction to Al Qaeda http://www.cato.org/pub_display.php?pub_id=3017," Cato.org, March 5, 2003

"Border Security Is No Job for the Military http://www.cato.org/pub_display.php?pub_id=6319," Los Angeles Times, February 5, 2003

"Beware of Total Information Awareness http://www.cato.org/pub_display.php?pub_id=2959," Cato.org, January 20, 2003

"War by Legal Loophole http://www.cato.org/pub_display.php?pub_id=3593," Cato.org, September 12, 2002

"Misguided Mission for Military http://www.cato.org/pub_display.php?pub_id=6322," Washington Times, July 31, 2002

"Volunteer Voyeurs? http://www.cato.org/pub_display.php?pub_id=3550," Cato.org, July 29, 2002

"War with Iraq: Who Decides? http://www.cato.org/pub_display.php?pub_id=3405," Cato.org, February 26, 2002

From The Woodwork They Come

I find it interesting the number of books and articles from conservatives bemoaning the abuse of executive power, coming now that it looks as if a Democrat may actually take the reins of a powerful presidency and not a Republican (although a Democrat winning still is not a given).

One of the more recent critiques comes from Gene Healy at the Cato Institute, whose book is titled The Cult of the Presidency: America's Dangerous Devotion to Executive Power. As an interesting aside, Cato published an edited book at the end of the Clinton Presidency titled The Rule of Law in the Wake of Clinton, which was based on a conference held at Cato and included, unbelievably, a chapter by John Yoo titled the "Imperial Presidency Abroad" and was an indictment of Clinton's military excursions in places such as Haiti and the Balkans.

And Healy also was critical of Clinton and the exercise of presidential power in this Cato article that appeared on Bush's first inauguration in 2001.

Reason excerpted this piece from Healy's book, titled "The Cult of the Presidency" and teases that the blame for the rise of abusive presidential power lies with us, the American public.

Healy opens up with a discussion of how the contemporary American presidency is completely out of whack with the Founders vision of presidential power, yet he provides no caveat that not all the Founders favored a weak presidency. In fact, the modern president's exercise of power owes as much to Alexander Hamilton as it does to changing circumstances. It was Hamilton who manipulated the Vesting clause of Article II so that it was open-ended enough to allow for the exercise of executive power outside the confines of Article II.

Healy also provides a quick history of the presidency in the 19th century (which Healy calls the "Modest Presidency"), and uses that period to model his expectations for the current presidency--or better, to point to a time when separation of powers worked as it should. During that period, a president was rarely seen by the American public and the Congress expected it that way. He notes Jefferson's refusal to deliver the State of the Union Address in person to the Congress because it was a violation of the constitutional separation of powers and represented an inappropriate influence over the Congress, and when the president did act unilaterally, it was atypical and the president was always cognizant to return the system back to its original state.

Where It All Went Wrong

For Healy, there were two variables that had the greatest effect on the expansion of presidential power--communications and crisis. First, communication technology allowed the president to interact with the American public in a way no other political figure--president, Congress or otherwise--had up to that time. It was Teddy Roosevelt who worked spin through the national newspapers, Woodrow Wilson who broke the tradition of hand-delivered State of the Union Addresses, thus striding into the House before a full gathering of the Congress and delivering the State of America, and FDR who took hold the new technology radio to communicate to Americans on a personal level, thus allaying their fears of domestic and international threats and problems. For Healy, this is where it all went wrong. It is not the president's job to assure of us anything. He is not our healer, our protector, our "father." He is one of many political figures elected to serve our interests. By placing him on a pedestal, it gives him license and freedom to upset the natural order of the Constitution.

The second key variable is the permanent state of crisis--depression, fascism, communism, poverty/drugs/crime, and finally terrorism. Each blended in to the other. And with each new crisis came new powers to the presidency to act. He had "his finger on the button," he was the "leader of the free world" and so forth. What we have come to understand about the flow of the new powers is that they are uni-directional--they flow to the presidency but are never returned. Thus the lessons of 19th century presidents such as Lincoln is lost. As the Civil War concluded, Lincoln was deliberate in stepping back into the Constitution, returning some dictatorial powers he had taken in response to the cessation of the South. If we were to face a crisis of that magnitude today, would the system reset? Would a 21st Lincoln behave as the 19th century did, or would America go the way of Rome? I agree with Healy on this point--the danger of this new war on terrorism is a war without end--different from the Cold War where there was a geographical threat to deal with. This is an enemy without borders, and so long as this enemy is allowed to manipulate our politics and safety in the way it does, it means that our constitutional system is threatened, but by a powerful presidency. As Healy notes, since 9/11, these fears have been realized:

For a president beleaguered by public demands, seizing new powers can be an adaptive response. Small wonder, then, that the Bush administration promptly sought enhanced authority for domestic use of the military. Although few in the media noted the historical moment, the president received that authority. On October 17, 2006, the same day he signed the Military Commissions Act denying centuries-old habeas corpus rights to “enemy combatants,” the president also signed a defense authorization bill that contained gaping new exceptions to the Posse Comitatus Act of 1878, the federal law that restricts the president’s power to use the standing army to enforce order at home.

The new exceptions to the act gave the president power to use U.S. armed forces to “restore public order and enforce the laws” when confronted with “natural disasters,” “public health emergencies,” and “other…incidents”—a catchall phrase that radically expands the president’s ability to use troops against his own citizens. Under it, the president can, if he chooses, fight a federal War on Hurricanes, declaring himself supreme military commander in any state where he thinks conditions warrant it. That’s the kind of executive power grab that happens when the public demands that the president protect Americans from the hazards of cyclical bad weather.

Missing the point

I have two problems with Healy's thesis. The first problem comes from his suggestion that the 19th century represented the best reflection of separation of powers in action, or the best modeling of the Founders wishes. The 19th century saw an "imperial Congress" that browbeat the president into compliance. With few exceptions, the presidency of the 19th century was an office without purpose or power. The vice president and cabinet officers were agents of the Congress. These presidents were given little to no money for help by way of staff. And each was expected to abide by the "expressed" powers of Article II. In sum, the president of the 19th century was a glorified "clerk," processing and administering the wishes of the Congress. So awful was the plight of these presidents that Woodrow Wilson suggested the Constitution be redesigned and the presidency folded into the Congress, becoming more like the Prime Minister of England.

The second problem I have with Healy's point of blame is that the modern president has grown in power mostly because the Congress has "delegated" power to him. At the start of the 20th century the Congress empowered the president to formulate the budget, thus ceding influence over the political agenda to our chief executive. Every major military action since WWII has come from congressional authorizations to use force--in particular this current War is the result of a blank check the Congress delivered to the president in the wake of the 9/11 attacks. The history of the 20th century is a history replete with congressional delegations. Thus the Congress has giveth, it is reasonable that the Congress can taketh away. But only with intense resolve by a Congress committed to protect the interests of the "First Branch," and we haven't seen such a Congress in a generation or more. Thus if the Founders were to return, they would be just as shocked at the sorry state of the Congress as they would the powerful presidency.

Finally, Healy (and others) heap their blame on the "imperial presidency." This is the great bogeyman of many intellectuals--the imperial presidency. More often than not, the term has no definition. And because it has no definition, it is mostly employed for partisan purposes to criticize actions of a president that opponents do not like. The Republicans in the 1990s accused Bill Clinton of acting "imperious" and the Democrats in the last 8 years have made identical claims. The "imperial presidency" thesis accuses an individual of usurping power for personal reasons, and because of this assumption most falsely believe that it ends with occupant. But executive power has been "institutionalized" over the course of the last 30 years, enabling each new president to start with enormous powers, and with a mission to leave the place in better condition than you found it (a lesson, interestingly enough, that is lost on the current administration).

So prepare yourself for articles such as these. As the days of the Bush administration wind down, we should see more--not less--articles in this vein.