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Thursday, December 25, 2008

The Imperial Presidency?

Now that the Bush term is near it's end, everyone it seems is looking to make the first draft of history. (even myself) For Bush's biggest critics, one common criticism is that he has turned the Presidency into a pseudo Monarchy. For instance, there is this piece from the Nation.

The most significant Bush/Cheney innovation was planted at the taproot of our Constitution. It was the insistence that the president can exercise what Cheney in 1987 called "monarchical notions of prerogative." That he can, in other words, override validly enacted statutes and treaties simply by invoking national security. This monarchical claim underwrote not only the expansion of torture, extraordinary rendition and warrant less surveillance but also the stonewalling of Congressional and judicial inquiries in the name of "executive privilege" and "state secrets."

The Bush/Cheney White House leveraged pervasive post-9/11 fears to reverse what Cheney called "the erosion of presidential power" since Watergate. Relying on pliant Justice Department lawyers for legal cover, it put into practice a vision of executive power unconstrained by Congress or the courts. It achieved what James Madison once called the "accumulation of all powers, legislative, executive and judiciary, in the same hands," which he condemned as "the very definition of tyranny."

Radical change is needed to re-establish legitimate bounds to executive power. We must again place beyond the pale Nixon's famous aphorism that "when the president does it, that means it's not illegal." But radical change--as early appointments and policy signals from the Obama transition team suggest--comes easier as campaign slogan than governing practice. And there are many reasons to fear a go-slow approach from Obama when it comes to restoring the constitutional equilibrium.

Joe Biden said something similar when he referred to Dick Cheney as the most dangerous Vice President of all time, and condemned a "unitary Executive branch".

Such criticism not only lacks historical context, but Constitutional context, as well as all other context, in my opinion. First, all Presidents accumulated more power during war time. They are after all the one and only Commander in Chief and so they will naturally have more power during war time. Lincoln, for instance, suspended habeas corpus, created military tribunals, and even installed martial law while prosecuting the Civil War. FDR created an office of Censorship during WWII. Wilson created the Creel Commission which counted among its duties: spying on war opponents, opening mail, and conducting warrant less searches of Americans. LBJ created a draft during the police action known as the Vietnam War. Compared to these other Presidents, Bush's "power grab" is rather mild. Either they are all imperialists thirsting for power, or those that call Bush an imperialist lack any historical context.

Second, the Constitution gives the Congress all the power that it needs in providing a check on the President's so called imperialism. That power is in the power of Congressional oversight.

Congressional Oversight refers to the review, monitoring, and supervision of federal agencies, programs, activities, and policy implementation. Congress exercises this power largely through its standing committee system. However, oversight, which dates to the earliest days of the Republic, also occurs in a wide variety of congressional activities and contexts. These include authorization, appropriations, investigative, and legislative hearings by standing committees; specialized investigations by select committees; and reviews and studies by congressional support agencies and staff.

All those screaming about a usurping of power should realize that if Congress isn't exerting enough authority it is by choice only. Any and all of the aggressive GWOT measures like warrant less wiretapping, enhanced interrogations, GITMO, and the Patriot Act, should have been monitored by the Congress through their role in oversight. The likes of Nancy Pelosi knew about each and everyone of these programs, and they only complained when it became politically advantageous.

Everyone that screams that the President can snatch anyone off the street and declare them a terrorist even though they are totally innocent knows absolutely nothing about our Constitution. The President could only do this if the Congress allows him to. The reason that Congress has oversight responsibility is to make sure that exactly such a scenario never occurs. Bush's detractors often use a vague hypothetical about how such a thing "might happen", but in reality, it never would. That's because the Congress would be there to investigate and stop it. That there hasn't been a case speaks to the system working.

Finally, it is amusing to see someone go on the Internet and post something calling the President a "monarch", "imperial", or "tyrant". How many such systems would allow for such vicious dissent? That journals like the Nation are allowed "with impunity" to print over and over that the President is a tyrant is the best proof that he isn't. FDR would never have allowed for such dissent and so he created an office of Censorship. In any real tyranny, such dissent would be unheard of. That's why we have a first amendment. It's to keep our Presidents from becoming tyrants. The President has done absolutely nothing to silence his critics. In fact, criticism of him has become a cottage industry. Yet, all these critics speak in a duplicitous, hypocritical and totally ridiculous manner about his own imperialism, knowing full well that if their words were true they'd never be allowed to speak them.

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