CQ WEEKLY – COVER STORY
Dec. 17, 2007 – Page 3702

New Handshake, Same Grip

For the past seven years, George W. Bush has expanded presidential power in ways that no one could have predicted when he took office.

He and Vice President Dick Cheney have worn their independence — from oversight by either lawmakers or judges — as a badge of honor, necessary to keep the nation safe from another terrorist attack and restore what they have regarded as a weakened presidency. But the cost has been a poisonous friction with Congress and a growing public perception that they simply weren’t interested in checks and balances.

Bush administration officials launched a secret warrantless surveillance program that operated outside the federal law that governs spying programs. They refused to ask Congress to authorize military commissions to try suspected terrorists, although the Supreme Court later forced them to do so. They declared that the president alone could decide how to detain suspected terrorists and which interrogation techniques to use.

They decided that the president alone could pull the United States out of treaties such as the 1972 Anti-Ballistic Missile Treaty, which Bush renounced in 2001. They maintained that administration officials don’t necessarily have to testify in an investigation just because Congress subpoenas them, a view that has driven Democrats in the House and Senate to launch contempt proceedings against officials who defied them in their probe of the firings of U.S. attorneys.

And they promoted an overall view of executive power that a president should be able to interpret the Constitution independently — and direct the activities of the executive branch without interference from Congress.

So members of Congress and constitutional experts had been looking for signs that the 2008 campaign would be the start of a backlash — with a varied group of presidential candidates from both parties who might scale back executive power and welcome, or at least tolerate, congressional oversight. “The lesson I hope the candidates have learned is, your power is enhanced when you work with the Congress,” said Republican Sen. Lindsey Graham of South Carolina. “You’re more likely to be upheld by the courts. and you’re more likely to get things done.”

However, the records and statements of the eight major candidates — the three Democrats and five Republicans who have had double-digit support in the most recent national polls — show that the 2008 presidential election is not likely to start a huge shift in the balance of power away from the White House.

That doesn’t mean the top candidates would continue all of the Bush administration’s practices, and most aren’t likely to take the same kind of deliberately confrontational approach to Congress. Also, an upset victory could still go to one of the few candidates whose victory would represent a clear rejection of Bush’s overall policies. But there is enough evidence of a preference for strong executive power in the backgrounds of most of the field to suggest that, more likely than not, there will be no U-turn under the next president.

“It’s not quite as simple as saying there will be no change, but it’s safe to say that those changes won’t be as dramatic as they might seem right now,” said Bradford A. Berenson, a former associate White House counsel to Bush who was on the Harvard Law Review with one of the presidential candidates, Democratic Sen. Barack Obama of Illinois, in the early 1990s.

Even candidates who are promising a turnaround, such as Obama and former Democratic Sen. John Edwards of North Carolina, would see things differently if either of them won, because presidents have such an institutional interest in preserving executive power, said Berenson. Of candidates such as Obama and Edwards who have no executive experience, he said, “I think they really don’t know how they would approach those issues if they’re elected.”

Crucial Examination

Executive power is such an abstract subject that it rarely, if ever, comes up during a presidential campaign. It’s hard to pose the questions in a way that matters to voters, although most of this year’s Republican candidates did get grilled, in an October debate in Michigan, about whether they would launch military strikes against Iran without consulting Congress. That prospect seemed real at the time, before the release of a new intelligence estimate that Iran had halted its nuclear weapons program four years ago.

Even when the subject of presidential power does come up, it can be easily dismissed because conventional wisdom holds that it’s nothing new for presidents to seek more power and resist congressional oversight. “From my experience, I don’t think any president walks into their job and starts thinking about how they can minimize their authority,” said Leon E. Panetta, who served eight terms as a California congressman before becoming budget director and then White House chief of staff under Bill Clinton.

But such general statements aren’t very helpful in predicting how assertive a presidential candidate will be once he or she is on the job. Other presidents have flexed their muscles: Jimmy Carter unilaterally withdrew the United States from a mutual-defense treaty with Taiwan in 1978, and Clinton launched weeks of U.S. airstrikes in Kosovo in 1999 without congressional authorization. Neither one, though, has come close to the Bush team in expanding presidential power for its own sake and refusing to consult Congress as a matter of principle.

The record has been thoroughly chronicled in recent books such as “Takeover,” by Boston Globe reporter Charlie Savage, and “The Terror Presidency,” by Jack Goldsmith, the former head of the Justice Department’s Office of Legal Counsel under Bush who overturned key anti-terrorism policies. Goldsmith writes that when he suggested asking for congressional approval for the detention program, David Addington, a Cheney aide who is now the vice presidential chief of staff, replied, “Why are you trying to give away the president’s power?”

In fact, it has been the Bush administration’s preference to use executive orders and other tools to do as much as possible without asking Congress to write its policies into law. The downside of that approach is that some of the administration’s most crucial anti-terrorism policies — such as the military tribunals — are vulnerable to court challenges, and others can be thrown out by the next president.

That’s why presidential, legal and constitutional experts say it is crucial, with the Iowa caucuses less than three weeks away, to examine the 2008 presidential candidates through the lens of how they might use executive power.

“It really is a foundational question about how our government is going to be run and what kind of safeguards we’re going to have,” said Virginia E. Sloan, president of the Constitution Project, a coalition of legal experts and political leaders who examine constitutional issues such as war powers and civil liberties.

Executive Experience Is Telling

In light of the Bush record, all eight of the major presidential candidates were asked by CQ to answer a set of written questions on specific issues, such as whether the candidate believes that a president can authorize conduct outside the laws to defend the country; under what circumstances the candidate would claim executive privilege; and whether the candidate believes that a president should issue statements after signing legislation into law, as Bush has, that declare some of the provisions optional.

Only one of the candidates — Edwards — answered the questions, although Clinton’s campaign touched on some of the issues in a separate exchange.

The other way to predict how the candidates would treat those issues is to look at their records and public statements. If a presidential candidate has been a governor, as have Republicans Mike Huckabee in Arkansas and Mitt Romney in Massachusetts, his dealings with the legislature can be read as a rough parallel to the relationship between a president and Congress. Even a mayor or former mayor, such as Rudy Giuliani of New York, has to deal with oversight from the City Council and watchdog agencies.

If a candidate has no executive experience — as is the case with Obama, Edwards, Republican Sen. John McCain of Arizona and former Republican Sen. Fred Thompson — the best evidence is whether he has ever addressed executive power issues in the past, through speeches or legislation.

And in all cases, it is important to look at a candidate’s record of openness with information because one who is secretive, or simply unhelpful in releasing records, probably won’t be cooperative with regard to oversight if he or she ends up in the White House.

The records of these eight candidates make clear that partisan leanings and ideology play some role in determining a candidate’s views, but those aren’t the most important factors. What matters most is whether the candidate has executive experience. Giuliani, Romney and Huckabee, who have built their political careers on executive experience, are the ones who show the most evidence of favoring executive power. Obama, Edwards and Thompson, the ones who would be most likely to defend congressional oversight, come from the Senate.

This would have been an obvious rule of thumb in the days before Cheney became vice president. He was a member of the House for a decade, but he and his aides have been the driving forces behind the Bush administration’s broad views of presidential power. Cheney, though, also has executive experience. His formative years, it is now clear, were not those he spent as Wyoming’s congressman but those he spent as President Gerald R. Ford’s chief of staff, when Congress was chipping away at presidential authority after the Watergate scandal and Cheney became determined to get it back.

This year, Democratic Sen. Hillary Rodham Clinton of New York is the candidate who has experience at both ends of Pennsylvania Avenue. She, too, had a formative experience at the White House, having been at the receiving end of multiple investigations of herself and her husband. Clinton says she rejects the Bush record on executive power. But if she wins, those speeches she’s given during her seven years in the Senate about the importance of congressional oversight are likely to become a distant memory.

FOR FURTHER READING:

The Clinton-Kerry bill on troop withdrawal bill is S 1950; detainees, CQ Weekly, p. 3636; FOIA revision (S 849), p. 2386; lobbying and ethics overhaul, (PL 110-81), p. 2366; Executive authority, 2006 CQ Weekly, p. 2858; Obama’s database law (PL 109-282), p. 2469; military commission law (PL 109-366), 2006 Almanac, p. 5-9; detainee treatment law (PL 109-163), 2005 Almanac, p. 6-3; Homeland Security Department creation (PL 107-296), 2002 Almanac, p. 7-3; Iraq War authorization (PL 107-243), 2002 Almanac, p. 9-3; Cheney energy task force, 2002 Almanac, p. 1-15; Kosovo, 1999 Almanac, p. 14-19; line-item veto (PL 105-159), 1998 Almanac, p. 6-17; Thompson campaign finance probe, 1997 Almanac, p. 1-20; ‘Travelgate,’ 1996 Almanac, p. 1-47; War Powers Resolution (PL 93-148), 1973 Almanac, p. 905.

Source: CQ Weekly
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