Making Sense of Tanenhaus

Sam Tanenhaus, writer at-large at the "New York Times", has penned a column in today's times that was designed to make a splash even though it is a complete misread of the power of the modern presidency as well as the historical development of presidential power.  In a nutshell, I have not stopped scratching my head at the thesis and facts grounded in the article itself.
The overall frame of his argument is the conflict in Syria and the potential for US involvement.  Tanenhaus believes that President Obama going to Congress to receive authorization to use force to stop the Syrian regime from using chemical weapons against its citizenry represents a diminishing of the type of power modern presidents wield.  In fact, his actions are not just out of step with recent presidents, but Tanenhaus also suggests that Obama's actions "possibly jeopardize the ability of future presidents to pursue ambitious foreign policy objectives."  Wow.
Tanenhaus then proceeds to his main argument: Obama "...holds office at a time when the presidency itself has ceded much of its power and authority to Congress."  His evidence? Clinton's complaint that the "presidency still mattered" following the 1994 Republican Revolution; George W. Bush's claim that the 2004 victory gave him capital that he intended to spend, where he promised Social Security and immigration reform, and both failed spectacularly in Congress.
Further proof of a decline in presidential power can be found in popular culture. The evidence? HBO's comedy "Veep" and Netflix's mini-series "House of Cards". In the former, presidential power decline comes in a president who is never seen, and in the latter political power is vested not in the president, but instead the House majority whip. I am not making this up.
Then there is divided government ("...a staple of American politics for many years") which has brought into the Congress ideologically pure representatives who buck the type of charm offensive that was a staple of the Reagan presidency (schmoozing on the yacht "Sequioa" or smoking cigars with Tip O'Neill following the budget vote in 1981).  Further, even though the national security powers of the president have gown "mightily", Tanenhaus claims that Obama's "...decision to go to Congress arguably shows a greater deference on war and peace than any president since Franklin D. Roosevelt."
It is hard to sum up all the things wrong with this article, but let me focus on a few.
First, it is not reflective of the realities of the last 50 years.  Take the last quote about presidential deference. President Obama is not asking for a declaration of war, which is what the Constitution says must happen, nor is he accepting the final decision of Congress. In fact, Tanenhaus selectively quotes from the President when he quotes Obama as saying: "I'm the president of the world's oldest constitutional democracy...[we must respect] members of Congress who want their voices to be heard."  In reality, Obama said this, but then went on to say: "Yet, while I believe I have the authority to carry out this military action without specific congressional authorization, I know that the country will be stronger if we take this course, and our actions will be even more effective." In fact, every president since FDR has suggested the need for congressional authorization, but every president has also qualified this with the stronger assertion that absence the authorization, the president can still use force.  George H.W. Bush got Congress to authorize the invasion of Kuwait in what many hailed as a finer moment in our constitutional democracy (because it was a contentious debate and vote), but only after Bush had sent 500,000 troops to Saudia Arabia. If you believe for one moment that if Congress had rejected the authorization, that Bush would have packed up and come home, then I have a bridge I would like to sell you.
Second, Tanenhaus misreads our own history in the development of the presidency.  He throws in an odd discussion of the views of Woodrow Wilson to buttress the notion that the decline of presidential power is rooted in the design of the Constitution.  Tanenhaus refers to Wilson's doctoral dissertation, published at the end of the 19th century, and titled "Congressional Government". He notes that Wilson's dissertation was an explanation of why the presidency was so weak (and aside from a few Presidents, such as Jefferson, Jackson, and Lincoln, it was a weak institution). Wilson argued for a radical constitutional redesign to make our system more like the European parliamentary system given that the presidency was a non-essential institution.  19th century presidents answered their own mail, gave guided tours of the White House, paid for their own staff, and were constantly at war with the congressional partisans in the Cabinet and in the Office of the Vice President.  But by the time Wilson became president, his view of presidential power radically shifted, largely because of what Teddy Roosevelt accomplished.  Wilson harnessed the "rhetorical" powers of the presidency by bringing back the public lecturing of the Congress in the State of the Union Address.  Tanenhaus claims that Wilson's two terms represent the "first modern instance of the 'imperial presidency', though not many students of the presidency would agree. Even more confusing: All of the quotes that Tanenhaus uses from Wilson on the presidency came before Wilson was actually president!
I really am not sure what has shaped Tanenhaus's view of modern presidential power, but let me explain what I know from both my reading and my own research.  The muscular presidency has been on a steroid induced power trip for nearly 40 years now.  In large part, the effects of Vietnam AND Watergate damaged the Ford and Carter presidencies ability to make the process work like it should.  If Tanenhaus wrote this article in 1978, I would have made it required reading for my students.  But Reagan, who picked up on how Ford and Carter made things work by unilateral means, set to the task of institutionalizing Presidential Unilateralism.  The basis of Presidential Unilateralism suggests that when the system boxes you in, you look for independent ways to expand the box, or what my colleague Ryan Barilleaux eloquently refers to as "Venture Constitutionalism". Add on to Vietnam and Watergate the paralysis of polarization coupled with a hostile media, and you get presidents who start announcing weird ideals such as the "Unitary Executive" Theory of Presidential Power--a theory that suggests the Constitution signs off of presidential unilateralism. And with it you get the heightened use of signing statements, executive orders, proclamations, and so on.
In sum, I cannot understand how Tanenhaus squares his view of presidential power with that of reality, because reality tells us that the president can independently order the assassination of American citizens.  Or can refuse to recognize or enforce over a 100 provisions of law contained in bills he has signed into law. Or can do the multitude of things we have learned in the intelligence leaks of the last several months. 
If Tanenhaus is going to continue to write on the presidency, then I suggest he attend a class on the presidency taught at any college in the United States.  In fact, if he acts now, I would be happy to send him my syllabus from my undergraduate course on the American Presidency.  Free of charge.

Obama's First Term Signing Statements

I have done my counting for President Obama's first term signing statements, and if you believe that he promised to use them in only the most extreme circumstances, than you can breathe a sigh of relief.  Here is what the first term of each President has looked like from Reagan through Obama:

President	Challenge	Con	Rhet	Total
Reagan	51	34	106	140
BushI	246	118	105	223
Clinton	55	27	141	168
Bush II	713	86	23	109
Obama	78	10	21	37

Obama has issued very few signing statements in his first term in office.  From 2009-2012, Obama issued just 37 total signing statements, compared with 100+ from each of his predecessors. Interesting, the President who comes closest to Obama in total number of signing statements is his immediate predecessor, George W. Bush, who has been the most reviled where signing statements are concerned.

In Obama's final year of his presidency, he issued seven signing statements, and none that challenged any provision of law.  But before we break out the cigars, it is important to note that Obama issued the third most challenges, coming in behind George 43 and his father, George 41. So he may have not issued many signing statements, but he gets his money worth when he does.

It is hard to know whether these numbers are indeed completely accurate.  In one respect, the Daily Compilation of Presidential Documents have now been adding keywords to their entries, so signing statements now contain the label "bill signings".  In the other respect, according to a January 2010 NY Times report by Charlie Savage, the administration claimed it would not use  the signing statement to voice disagreements with law where disagreements have already been made, and may instead use the OLC to voice new disagreements--and OLC opinions are not always published.  So we are left wondering what these numbers really mean.

You would hope this would be an issue the Congress would take more seriously, and not just when it comes to partisan advantage.  Despite what some scholars think about congressional oversight of the signing statement, the fact of the matter is there is little to no evidence that Congress has a handle on how, why, and when the president uses the signing statement, burglar and fire alarms notwithstanding.

Thus I have taken advantage of the administration's "We the People" project to ask the administration to make the signing statement transparent, and allow a tracking mechanism similar to the executive order.  You can find the petition at: https://petitions.whitehouse.gov/petition/publish-each-and-every-refusal-enforce-laws-president-signs-his-bill-signing-statements/wdmSnGlg?utm_source=wh.gov&utm_medium=shorturl&utm_campaign=shorturl

Please take the time to sign my petition if you think this is an issue that warrants attention.

NDAA and Chuck Hagel

President Obama signed the National Defense Authorization Act for FY 2013, and typical with this particular bill, the signing was accompanied with a signing statement. For those who watch the signing statement, the NDAA is a much watch piece of legislation because it almost always sparks a signing statement.

There is a great deal to look over in Obama's signing statement--the one that received a great deal of attention was Obama's ongoing struggle with the Congress over the issue of enemy detainees--whether they can be transfered to a 3d party country or whether they can be tried in the U.S.--most importantly whether we can close down Gitmo.  This particular struggle has been in every one of the NDAA bills Obama has signed, and has warranted his response in each one.

I will save my commentary on the signing statement for another blog post, because it clearly violates Obama's memo on the signing statement issued back in 2009.

What I want to focus on is Section 533 of the bill, which ostensibly protects military clergy from doing anything that may violate their "sincerely held moral principles & religious beliefs." While it sounds like something to applaud--and in fact is redudant--there is an underlying reason for its appearance in this bill.  Section 533 is designed to insulate and protect from military punishment any clergy who refuses to counsel or marry military personnel who are homosexuals.

In Obama's signing statement, he writes that the "Secretary of Defense will ensure that the implementing regulations do not permit or condone discriminatory actions that compromise good order and discipline or otherwise violate military codes of conduct."  While Obama maintains he is committed to ending Dont Ask, Don't Tell, and to "protecting the rights of gay and lesbian service members," it should be asked whether his Secretary of Defense holds the same commitment in light of the Hagel's past views on homosexuality.