Charlie Savage: Has presidential power reached its zenith under Bush? Don’t bet on it.
[Charlie Savage covers legal affairs for The Boston Globe. His book, Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy, has just been published by Little, Brown.]
... It may seem that this presidency’s most aggressive expansions of executive power have been curbed. The new Democratic Congress has launched many oversight hearings. Five of nine Supreme Court justices have held that presidents must obey the Geneva Conventions and need congressional permission to set up military commissions.
But the aftermath of the Nixon presidency suggests that any ebbing of presidential power from its new high-water mark may be only temporary. Richard Nixon had sought unchecked power on many fronts—he expanded secrecy, spied on his political enemies, fired the special prosecutor who was investigating him, and kept the Vietnam War going for two years after Congress revoked its authorization. Vietnam and Watergate eventually prompted Congress to impose new controls on executive power. Among other things, the new rules required presidents to consult lawmakers before sending the armed forces into combat, and to bring troops home after 60 days if Congress did not explicitly authorize a longer fight. Congress also created an independent counsel who could investigate the White House without being fired by the president.
The erosion of these and other checks began even before the post-Watergate furor had fully subsided. As early as 1975, Gerald Ford, without consulting Congress, was sending marines on a bloody rescue mission to Cambodia; by 1999, Bill Clinton felt free to order the Air Force to bomb Kosovo and Serbia, which it did for 78 days—all without any explicit congressional authorization. After the Iran-Contra and Whitewater investigations, lawmakers let the independent- counsel law expire.
Administrations from both parties also continued to develop new powers. Jimmy Carter set the precedent for unilaterally scrapping a ratified treaty when he pulled the United States out of a mutual-defense pact with Taiwan. Ronald Reagan’s legal team invented the “Unitary Executive Theory,” which undercuts the authority of Congress to regulate the executive branch. The imperial presidency was largely restored before Bush took office. While Cheney claimed that he and Bush were filling in a valley of executive power, they were actually building atop a mountain....
In 1944, Supreme Court Justice Robert Jackson warned that each new assertion of executive power, once validated into precedent, lies about “like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes.”
Read entire article at Atlantic Monthly
... It may seem that this presidency’s most aggressive expansions of executive power have been curbed. The new Democratic Congress has launched many oversight hearings. Five of nine Supreme Court justices have held that presidents must obey the Geneva Conventions and need congressional permission to set up military commissions.
But the aftermath of the Nixon presidency suggests that any ebbing of presidential power from its new high-water mark may be only temporary. Richard Nixon had sought unchecked power on many fronts—he expanded secrecy, spied on his political enemies, fired the special prosecutor who was investigating him, and kept the Vietnam War going for two years after Congress revoked its authorization. Vietnam and Watergate eventually prompted Congress to impose new controls on executive power. Among other things, the new rules required presidents to consult lawmakers before sending the armed forces into combat, and to bring troops home after 60 days if Congress did not explicitly authorize a longer fight. Congress also created an independent counsel who could investigate the White House without being fired by the president.
The erosion of these and other checks began even before the post-Watergate furor had fully subsided. As early as 1975, Gerald Ford, without consulting Congress, was sending marines on a bloody rescue mission to Cambodia; by 1999, Bill Clinton felt free to order the Air Force to bomb Kosovo and Serbia, which it did for 78 days—all without any explicit congressional authorization. After the Iran-Contra and Whitewater investigations, lawmakers let the independent- counsel law expire.
Administrations from both parties also continued to develop new powers. Jimmy Carter set the precedent for unilaterally scrapping a ratified treaty when he pulled the United States out of a mutual-defense pact with Taiwan. Ronald Reagan’s legal team invented the “Unitary Executive Theory,” which undercuts the authority of Congress to regulate the executive branch. The imperial presidency was largely restored before Bush took office. While Cheney claimed that he and Bush were filling in a valley of executive power, they were actually building atop a mountain....
In 1944, Supreme Court Justice Robert Jackson warned that each new assertion of executive power, once validated into precedent, lies about “like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes.”