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Who Can Check the President?
NY Times
By NOAH FELDMAN
January 8, 2006
I. OUR PRESIDENTIAL ERA
Not since Watergate has the question of presidential power been as salient
as it is today. The recent revelation that President George W. Bush ordered
secret wiretaps in the United States without judicial approval has set off the
latest round of arguments over what the president can and cannot do in the name
of his office. Over the past few years, the war on terror has led to the use of
executive orders to authorize renditions and the detention of enemy combatants
without trial - for which the Bush administration has been called to account by
our European allies. The treatment of detainees has also given rise to concerns
in Congress about the prerogatives of the chief executive: both houses recently
voted to limit the president's authority to employ C.I.A. or other executive
agents to engage in cruel and inhumane interrogations. The limits of
presidential power will almost surely be a major topic of discussion during
Samuel A. Alito Jr.'s Supreme Court confirmation hearings, which are scheduled
to begin this week.
The stakes of the debate could hardly be higher: nothing is more basic to
the operation of a constitutional government than the way it allocates power.
Yet in an important sense, the debate is already long over. By historical
standards, even the Bush administration's critics subscribe to the idea of a
pre-eminent president. Administrative agencies at the president's command are
widely understood to be responsible for everything from disaster relief to drug
approval to imposing clean-air standards; and the president can unleash shock
and awe on his own initiative. Such "presidentialism" seems completely normal
to most Americans, since it is the only arrangement most of us have ever
known.
For better or worse, though, this is not the system envisioned by the
framers of the Constitution. The framers meant for the legislative branch to be
the most important actor in the federal government: Congress was to make the
laws and the president was empowered only to execute them. The very essence of
a republic was that it would be governed through a deliberative legislature,
composed carefully to reflect both popular will and elite limits on that will.
The framers would no sooner have been governed by a democratically elected
president than by a king who got his job through royal succession.
The transformation of the United States from a traditional republic to a
democratic nation run in large measure by a single executive took a couple of
hundred years. Constitutional evolution, like its counterpart in the natural
world, has occurred sometimes gradually and sometimes in catastrophic jolts,
like those brought about by war or economic crisis. The process has not been
entirely linear: presidential power grabs have often been followed by a
Congressional backlash, as in the wake of Richard Nixon's presidency. But the
overall winner has unquestionably been the president, who has reached heights
of power that the framers would scarcely have imagined. The modern presidency,
as expressed in the policies of the administration of George W. Bush, provides
the strongest piece of evidence that we are governed by a fundamentally
different Constitution from that of the framers. While any constitution must
evolve over time to meet new circumstances and challenges, there is reason to
think that, when it comes to presidential power over national security, the
latest developments have gone too far.
The rise of the presidency began with the Louisiana Purchase, which in 1803
doubled the landmass of the United States. History taught the framers that,
just as Rome changed from republic to empire with conquest of new lands,
territorial acquisition would lead to the centralization of political power.
Sure enough, Thomas Jefferson's decision to buy the territory without seeking a
constitutional amendment or advance Congressional approval amounted to a huge
expansion of presidential authority. Jefferson entered office as a skeptic of
the national government's power and even privately suggested that the purchase
was unconstitutional. In overcoming his own republican instincts and arranging
the purchase secretly, he demonstrated how the office of the presidency would
come to serve its own interests, swaying the men holding it to strengthen not
simply their own authority but also that of the institution itself.
Three decades later, Andrew Jackson's presidency marked another leap forward
in presidential power. His contribution was his claim to represent the country,
in its entirety, more directly and democratically than the congeries of local
politicians who made up Congress. This rhetorical stance, coupled with the
expansion of voting rights to white men without property, gave him the
political muscle to veto the national bank and stand up to Congress in the name
of the common men who had voted for him.
By the middle of the 19th century, with the admission to the Union of
Florida, Texas and California, the United States became a continental empire.
Such an empire called for an "imperial presidency," as Arthur M. Schlesinger
Jr. suggested in his classic 1973 book of the same name. With the onset of the
Civil War, the threat to the nascent empire led Abraham Lincoln to govern
without Congress and to suspend access to the courts. When in 1898 William
McKinley conquered the Philippines and chose to rule it, the imperial metaphor
became still more apt: the United States had become, for the first time, the
proprietor of whole nations whose peoples would never vote in its elections and
whose governors reported directly to the president.
In the 20th century, the Great Depression helped propel the presidency to
its current level of dominance. The administrative agencies that were created
during Franklin Delano Roosevelt's New Deal were a response to the tremendous
complexity and growth of the national economy. An overwhelmingly Democratic
Congress went along with the Roosevelt administration, giving the agencies
broad discretion in regulating the economy and addressing workers' welfare.
Over time, as the agencies expanded to administer health and safety
regulations, Congress realized that it was more convenient to pass the buck to
agencies than to deal with hard policy questions on its own. A congressman
could take credit for an agency's action when it was convenient and blame the
agencies when they adopted policies that his constituents disliked. It is now
taken for granted that the president is in charge of the vast administrative
apparatus that makes most of the important domestic-policy decisions in the
country.
Today, of course, the main arena for the extension of presidential power is
the realm of national security. The president's power to use force has grown
enormously since the founding. The framers worried that a standing army at the
president's beck and call would encourage him to subvert legislative
independence by force, and so the Second Amendment gave Americans a right to
bear arms in order to form well-ordered militias that would protect "a free
state" - not only from the incursions of foreign powers but also from an
overweening central government. Until the 20th century, a president who called
the military into action did not have much to work with.
But as America emerged as a world power, Congress began to ignore the
framers' concern, enhancing the size and might of the regular army until
presidents could enter even major conflicts on their own. Presidents from both
parties used the ongoing hostilities of the cold war to strengthen their
military prerogatives during the conflicts in Korea and Vietnam. Despite the
passage of the War Powers Act of 1973, which tried to reassert Congress's role
in going to war, the presidency ended up more powerful than it had been before;
no president has acknowledged the act's constitutionality. Even Bill Clinton
was able to bomb Kosovo without asking Congress for permission.
The administration of George W. Bush, emboldened by the Sept. 11 attacks and
the backing of a Republican Congress, has sought to further extend presidential
power over national security. Most of the expansion has taken place in secret,
making Congressional or judicial supervision particularly difficult.
Administration lawyers have gone so far as to claim that the president as
commander in chief is not bound by laws that ban torture because he is
empowered by the Constitution to fight the nation's wars however he sees fit. A
memo from the Department of Justice to the White House counsel dated Aug. 1,
2002, argued that any attempt to apply Congress's anti-torture law "in a manner
that interferes with the president's direction of such core war matters as
detention and interrogation of enemy combatants thus would be
unconstitutional."
The administration has also suggested, in other memos, that the president
may violate international treaties if necessary to fight the war on terror. By
these lights, the United Nations Convention Against Torture, the leading
anti-torture treaty, could constitutionally be violated even though the United
States signed and ratified it, and even though the Constitution declares
treaties to be "the supreme law of the land." Meanwhile, the administration
takes the view that the anti-torture treaty does not apply to its actions
outside the United States as a matter of law, but only, as Secretary of State
Condoleezza Rice recently stated on a trip to Europe, "as a matter of U.S.
policy." When added to the newly declared presidential right to arrest American
citizens wherever they might be and detain them without trial as enemy
combatants, these claims add up to what is easily the most aggressive
formulation of presidential power in our history.
For the last four years, a Republican Congress has done almost nothing to
rein in the expansion of presidential power. This abdication of responsibility
has been even more remarkable than the president's assumption of new powers. In
recent months, though, Bush's relative unpopularity, as reflected in opinion
polls, has emboldened Congress to take some steps toward reasserting its
oversight role. In addition to the new anti-torture legislation, there is talk
of requiring regular reports on secret detentions; and last month Congress
nearly allowed the U.S.A. Patriot Act to lapse, granting only a five-week
extension instead of the full renewal sought by the administration. Still,
political logic dictates that, as long as Republicans control Congress, its
oversight will be cautiously managed so as not to harm the party or the party's
next presidential candidate. And even accounting for a legislative backlash,
history suggests that the presidency ultimately emerges stronger after a
president makes new claims of his constitutional authority.
So what, if anything, should be done? If presidential power has been taken
too far, who, if anyone, can impose limits on it?
II. WHAT THE COURT HAS DONE - AND MAY DO
The Supreme Court would seem to be the natural place to look for a
restoration of the constitutional balance of powers. While Congress sat on its
hands for most of the last five years, the court took on some of the most
contentious problems of presidential power in a set of landmark decisions
concerning detainees being held as enemy combatants. These cases were not just
about civil liberties. They were also about the relative powers of Congress and
the president under wartime conditions, and the court treated them as such.
The court's response to these crucial issues was to propose what is in
effect a compromise between presidential power and Congressional authority. The
most significant case concerned the detention of Yaser Esam Hamdi, an American
citizen captured in Afghanistan and then held without trial in the United
States. In June 2004, the court rejected the administration's view that it was
authorized to arrest an enemy combatant anywhere and hold him indefinitely
without trial. (The administration's argument was endorsed by Justice Clarence
Thomas.) But the court also did not adopt the opposing view, expressed in a
stinging dissent written by Justice Antonin Scalia, that an American citizen
may not be detained without trial in the United States so long as the courts
are open and Congress has not exercised its power to suspend the writ of habeas
corpus.
Instead, the court concluded - over the disagreement of Justice David Souter
- that Congress had in fact authorized the detention of enemy combatants,
including American citizens. Yet at the same time, the court held that a
suspected enemy combatant must be afforded the basic right to due process: to
be given notice of the accusation against him and an opportunity to rebut that
accusation before "a neutral decision maker." When push came to shove, however,
the administration never gave Hamdi the hearing that the court promised him: he
was "released" to Saudi Arabia without a hearing of any kind, on the condition
that he renounce his United States citizenship.
The court's opinion in Hamdi's case seemed to exert a gravitational pull on
the status and rights of the detainees at Guantánamo Bay. In a parallel
case, the court addressed the Guantánamo issue only to say that those
detainees - who are not United States citizens - were covered by the legal
right to seek habeas corpus. The administration argued that since
Guantánamo was part of Cuba, the habeas corpus statute did not apply
there. When the court rejected this argument, the administration seemed to draw
the lesson that it had better provide some sort of hearings for the
Guantánamo detainees, as the court required for Hamdi. The
administration decided to give those detainees hearings before commissions made
up of military officers for the limited purpose of deciding whether they were,
in fact, enemies of the United States. Not surprisingly, almost all these
hearings have resulted in continued detention: only 38 of the more than 500
detainees were found not to be enemy combatants
Whatever their practical shortcomings, the court's decisions regarding Hamdi
and the Guantánamo detainees still registered as a limitation on the
unbridled presidential power that the administration asserted. But today, the
Supreme Court that decided the detention cases is no more. Chief Justice
William H. Rehnquist has since died and been replaced by John G. Roberts Jr.;
and Justice Sandra Day O'Connor has offered her resignation contingent on the
confirmation of her successor. If Samuel Alito takes her place, he and Roberts
could change the balance significantly.
The change in the court's makeup is potentially significant, for the
litigation of presidential power is just gathering steam. In addition to the
likelihood that the court will hear a third prominent case concerning detention
- that of Jose Padilla, an American citizen arrested at O'Hare Airport in 2002
and then detained in the United States without trial - it may well consider
cases concerning the tapping of private conversations between terror suspects
in the United States and persons abroad.
The revelation that President Bush directed the National Security Agency to
eavesdrop (and use data-mining technology) on such communications without
seeking warrants has raised the question of whether the president had the power
to do so. The Foreign Intelligence Surveillance Act, or FISA, prohibits
surveillance of this sort without a special warrant, so the administration has
proffered several other justifications of its policy. It has argued that when
Congress authorized the president to use force after Sept. 11, it implicitly
repealed FISA's ban on warrantless surveillance. And it has also maintained
that the president had the inherent constitutional authority to intercept the
communications of foreign powers and their agents - regardless of whether
Congress prohibited it. Reminiscent of the administration's position regarding
torture, this argument relies upon the idea that the Constitution assigns
certain foreign-affairs responsibilities to the president that exclude Congress
from having any say in how he might exercise them.
As with the use of torture, the use of secret intelligence outside of the
ordinary legal process makes it difficult even to discover the violation, much
less challenge it legally. But that does not mean that the issue will not come
before the Supreme Court. Although you would imagine that prosecutors are not
using secret evidence in criminal trials in which defendants could invoke their
Fourth Amendment rights against unlawful search and seizure, defendants in
terror trials are now asking courts to force the government to disclose whether
such illegal surveillance occurred. Released detainees have already filed civil
suits against the government charging torture, detentions and renditions to
foreign countries by United States personnel. Such suits could now include
claims for unlawful surveillance. Civil-liberties advocates will also bring
challenges to the surveillance practices that the president has now
acknowledged. And when a new administration is elected, it is not impossible
that criminal prosecutions could be brought against the intelligence officials
who illegally authorized the wiretaps.
If the issue does reach the court by one or more of these avenues, there is
good reason to suspect that both Roberts and Alito, should he be confirmed,
will be operating under the influence of an expansive conception of
presidential power. Both are products of a conservative movement that has
provided the legal justifications for various aspects of the Bush revolution,
and both held intensely political jobs in previous Republican administrations.
Two decades ago, as a deputy assistant attorney general, Alito argued in a memo
that the president should issue "signing statements" when approving legislation
- an effort to give the president influence over the courts' power to say what
the laws mean. And Roberts, while serving as an appeals court judge, joined an
opinion in Hamdan v. Rumsfeld upholding the military commissions being used to
try Guantánamo detainees. The court held that the Geneva Convention does
not, on its own, create a private right that can be litigated in the courts - a
position consistent with wide presidential authority but also conventional
wisdom among United States courts dealing with treaty issues. (I submitted a
friend-of the-court brief in that case on the right to confront witnesses and
evidence.) Past experience does not, of course, necessarily determine a
justice's views on the court. But given their profiles and clues from their
writings, it is in any case extremely unlikely that the combination of Roberts
and Alito would be less deferential to presidential power than the combination
of O'Connor and Rehnquist.
III. HOW CONGRESS CAN REDEEM ITSELF
Even if the Supreme Court were inclined to resist efforts to expand
presidential power, the truth is that the court cannot do much to restore
Congressional authority. We often imagine that the court serves as a sort of
neutral umpire controlling the warring political branches. But this is mostly
myth. The justices of the Supreme Court are themselves actors in the struggle
for power, and when they intervene, they think carefully about how their
decisions will affect the court's own legitimacy and authority. Even when the
court weighs in on the side of Congress, it often elevates its own powers at
Congress's expense. By the very act of interpreting existing laws and declaring
something to be within Congress's power (and not the president's), the court
affirms that it, not Congress, is the entity capable of making the president
listen. Likewise, when Congress allows the court to resolve a power struggle
between itself and the executive branch, it effectively concedes that it lacks
the will to use its own arsenal of tools to pressure the president.
Consider what happens when Congress actually tries to engage in oversight -
for instance, demanding that the president turn over documents concerning
prewar intelligence about weapons of mass destruction in Iraq. The president
refuses, citing "executive privilege" - a term, by the way, absent in the text
of the Constitution. What can Congress do when the president ignores its
dictates? One option would be to stop cooperating with the presidential agenda
on other issues. Another would be to suspend financing for some relevant
program. Holding hearings would be a way to possibly broaden public awareness
(though hearings are difficult to carry off without relevant documentation).
The ultimate sanction, of course, would be to initiate impeachment proceedings.
All of these approaches have costs, though. They would require coordinated
action by the Congress and would draw public scrutiny to the issue. By going to
the court and asking it to enforce a subpoena - or better, waiting for
public-interest groups to do so, as with Vice President Dick Cheney's energy
advisory commission - Congress avoids most of these costs.
Once the Supreme Court hears a case involving the balance of powers, the
situation actually becomes worse for Congress. The court may find for the
president. And even if the court does find that Congress's powers trump those
of the president, and the president complies with its ruling, the logical
implication is that the president is listening to the court when he was not
willing to listen to Congress. This concern was evident in Scalia's dissent in
the Hamdi case, in which he asserted that an American citizen in his home
country is always entitled to a judicial hearing justifying detention - unless
Congress suspends the writ of habeas corpus. To Scalia, the case was about
Congress and the president: the former had not authorized the latter to detain
citizens without a hearing. Yet far from functioning as a vote of confidence in
Congress, Scalia's dissent made Congress look like the patsies that they had
been throughout the Guantánamo detentions. Scalia was clearly angry at
the president for violating a basic constitutional principle, to be sure. But
his anger also reflected his frustration with Congress's reluctance to stand up
for its rights.
So how can Congress redeem itself? It could start by clarifying that, in
authorizing the president to use force after Sept. 11, it did not mean to give
him a blank check to violate existing laws without even telling Congress about
the violations. Then it could pass new laws that leave no doubt that it intends
to bind the president and his staff on matters relating, for example, to the
conduct of war. Senator John McCain's torture bill, for instance, seeks to do
just that. In the face of repeated presidential assertions that inhumane
treatment does not count as torture and that the president cannot be
constrained when it comes to interrogation, the law expressly prohibits cruel
interrogation techniques.
But laws that bind the president are, on their own, not enough. Congress
must also create meaningful oversight programs with bite to make sure the laws
on the books are actually obeyed. The recent proposed bill demanding regular
reports from the director of national intelligence about detentions abroad is a
step in this direction, but only a step. Without specific provisions stating
the content of the testimony that the executive branch must provide, Congress
is just asking for the president to elicit an opinion from his lawyers
permitting him to ignore the law and then to violate the law secretly. Lest
that seem far-fetched, recall that such memos were in fact elicited in the war
on terror, and that the violations of our anti-torture laws that took place
(according to any reasonable reading of those laws) occurred in facilities
whose very existence was classified as a matter of national security. Indeed,
even McCain's bill, which prohibits "cruel, inhuman or degrading treatment,"
could be gutted in practice by an interpretation limiting the meaning of those
terms so as to permit existing interrogation techniques.
The chief advantage of oversight hearings is that officials must appear and
testify under oath as to what the administration is in fact doing. A lie to a
Congressional committee constitutes perjury. Disillusioning as it may be to
admit, the threat of prison is probably the only sanction that can reliably
assure that executive-branch officials, protected by secrecy laws and
presidential orders that may themselves be classified, will come clean about
what is going on in the war on terror. Even the most conscientious officials
may make ambiguous statements that disclose only part of the truth, and that
misleadingly - as when Condoleezza Rice answered questions about rendition and
torture at a press conference in Ukraine in December.
Beyond oversight, a newly assertive Congress would also have to create ways
to sanction the president if laws were violated. Ordinary criminal prosecution
will rarely do the trick, since Congress cannot expect the president to
initiate proceedings against himself or his employees for violating a law that
he thinks is unconstitutional. The steps for enforcement should therefore come
in part, at least, from Congress itself, which could specify upfront, for
instance, that if a president were to violate the law, Congress would withdraw
financing from certain programs or initiate impeachment proceedings.
With midterm elections coming in the fall, and the president's popularity
having fallen, Congress may already be gearing up to take some such steps, as
with the request for regular reporting on detention and Iraq and McCain's
torture bill. A future Congress controlled by the Democrats would doubtless do
much more. But the War Powers Act of 1973 provides a cautionary tale. Without
strong and credible evidence that Congress will follow through, the laws
Congress passes to limit the president can enter constitutional limbo, their
status unknown and their effect uncertain.
The Supreme Court can do little to help Congress along this path, but the
court could make the work of restoration harder for Congress were it to rule in
favor of the Bush administration's theories of executive power. The judicial
approval of an inherent executive power to torture or eavesdrop, laws to the
contrary notwithstanding, would be a huge blow to Congress.
The allocation of power within the government is not determined simply by
reading the Constitution and figuring out what it says. To the contrary, the
balance of powers is established through a game of give and take, a struggle in
which each branch fends for itself. An excellent example is the Supreme Court's
ruling in Bush v. Gore. The important fact about that decision was not that in
assuring President Bush's election, it inaugurated a period of single-party
government. It was, rather, that the court deliberately chose to intervene in a
process laid out in the Constitution for dealing with electoral disputes - a
process according to which Congress, not the court, was given the power to
choose the president. Bush would likely have ended up president in either case;
but once the court wrested from Congress the constitutional power to decide who
won, few in Congress seriously disputed the legitimacy of its actions. The
court had spoken, and its decision was treated as final.
The lesson for the balance of powers is a deep one: the prize of power goes
to the bold. Right now, the presidency and its supporters have the upper hand.
For Congress to regain some of its constitutional prominence, the court will
have to keep a level head, and the representatives themselves will have to be
willing to take some chances. Such an effort need not be restricted to national
security issues - it would be nice if Congress also took more responsibility
for making many of the hard domestic policy choices that it currently leaves to
administrative agencies. But the national security problem is more pressing,
and for the moment it offers Congress the best chance to redeem itself from its
recent inaction.
It is customary, when making a plea on behalf of Congress, to give the
legislature special consideration because it is the branch originally designed
to represent the people. But this is not wholly justified: after all, nowadays
the people directly elect the president, and the politicization of Supreme
Court nominations ensures a fair amount of popular input into the composition
of the court. It is also not certain that a rejuvenated Congress would be more
effective in supervising the president than the Supreme Court. The real reason,
then, to hope that Congress will resurrect its lost powers is that the balance
of powers remains, as the framers thought, the best guarantor of liberty in a
constitutional government. The basic fact of presidential power is now
irreversible. No one denies that a strong executive is needed to respond to the
threat of terrorism. But this just means that the presidency requires greater
vigilance than ever to prevent violations of liberty.
No court alone can do the job of protecting liberty from the exercise of
executive power. For that most important of tasks, the people's elected
representatives need to be actively involved. When we let them abdicate this
role, the violations start to multiply, and we get the secret surveillance and
the classified renditions and the unnamed torture that we all recognize as
un-American. Our Constitution has changed enormously over the last two
centuries, and it is sure to change much more in the future. Just how it
changes, though, is up to us.
Noah Feldman, a contributing writer for the magazine and a law professor at
New York University, is the author most recently of "Divided by God: America's
Church-State Problem - and What We Should Do About It."
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