A Little Nuance

Perhaps this is just pointless hairsplitting, but I feel I should say that while I'm not at all happy with the precedents Bush is setting with regard to presidential power, that I think the case for strong executive power as such is actually pretty strong. The trouble comes from the nexus between the strong executive and other aspects of the American constitutional system. A Prime Minister in a multi-party democracy with coalition governments (or something like Japan's factions system) granted broad discretion in terms of his powers could, if that discretion was used in an abusive or inept manner, be removed from office and the broad discretionary power placed in the hands of someone either more wise or more cautious.

In the American system, though, the president serves a fixed term and you're only supposed to remove from office for actual criminality. Simply making bad or even abusive decisions doesn't count. Under the circumstances, then, you need it to be the case that abuses are formally prohibited by law. This doesn't always seem optimally flexible, and it probably isn't, but the system requires inflexibility because fairly tight legal constraint of executive authority is a necessary complement to the post's very broad levels of political discretion. The President of the United States, as we've been seeing the past two years, can basically do what he wants know matter how unpopular he becomes or his specific decisions are.

Which is precisely what makes these theories that there's no legal constraint on the President's freedom of action so frightening -- if there's no legal constraint then there's no constraint whatsoever.

Comments

you're only supposed to remove [the president] from office for actual criminality

Is that quite right? Isn't it vaguer than that?

Posted by jonnybutter | October 25, 2007 9:13 AM

So, we should move to a parliamentary democracy system? I'm not so sure that would be any better. American Presidents have a lot of power but they are limited to fixed terms. And their powers are subject to Congressional oversight. If Congress abrogated its responsibility after 9/11, that is not the Constitution's fault, is it?

And a parliamentary system is not so great either. It marries the executive and legislative. In the wrong hands, it could be even more dangerous. Think of a two party system where some unsavory character bullied his way to party leader. If his party could control congress/parliament though the services other unsavory folks like Rove, the country would be truly screwed. The guy could hang on to power as long as his party controlled the legislature. Just the thought of Prime Minister Tom Delay makes me shudder.

Posted by 2cynicalbyhalf | October 25, 2007 9:16 AM

In theory, it seems like one consequence of presidential abuses of power is supposed to be that the president's approval ratings fall, making it harder for the president to move forward other initiatives that (s)he's presumably like to see enacted, so there's a substantive opportunity cost to abusing power. But in reality, two things dampen that effect considerably:

1) The fact that, as some commenters have pointed out at Ezra's place, the founders failed to anticipate parties, setting up a system where other actors face strong partisan incentives not to make waves and challenge the president that often overwhelm the institutional incentives pointing in the other direction.

2) The fact that term limits more or less allow a president to spend about a third of any eight-year term not giving a shit about the opportunity costs of his/her actions. The fact that it's a foregone conclusion in 2004 that Bush won't be re-elected in 2008 -- grateful as I am for that fact -- also effectively allows Bush to say to America, "You can't fire me, I quit! (But I'm going to stay here for four more years anyway.)" Bush got one thing right -- term limits mean that presidents really do only have two major "accountability moments," and none of them occur more than halfway through an eight-year term.

How much of this would be different under a parliamentary system, I leave to abler minds than mine.

Posted by Daniel Munz | October 25, 2007 9:28 AM

The system can work if congress has the political will as Tom Delay demonstrated. During Andrew Johnson's term, the tenure of office act was passed to place actual legal limits on the president's ability to act and when he violated that law, he was impeached, although not convicted.

Bush has apparently violated FISA and has probably violated some other laws if he has really been following his signing statements in executing the laws congress has passed. He could be impeached for these specific violations, and convicted if the necessary majorities in congress wished it. They don't.
Presumably the proponents of expansive executive discretion, do not think it trumps the ability to impeach and convict.

Posted by Doug | October 25, 2007 9:41 AM

In the American system, though, the president serves a fixed term and you're only supposed to remove from office for actual criminality. Simply making bad or even abusive decisions doesn't count.

Well, sure, if you assume the answer. There are other interpretations, as I recall.

Posted by SomeCallMeTim | October 25, 2007 9:41 AM

One interesting thing about the executive authority “precedents” created by this Administration is how infrequently they’ve put their theories to the test in the judiciary. In the case of torture and surveillance, they have claimed unlimited executive authority in theory, but in practice, have taken the conventional step of gaining Congress’s explicit permission to conduct the questionable activities. Likewise, on issues like defying Congressional subpoenas, they have again claimed unlimited executive authority in theory, but in practice, have attempted to dodge judicial review and avoid adjudication. Thus, it really isn’t clear whether a presidential administration has the power to refuse Congressional subpoenas to protect the privacy of cabinet-level presidential discussions. Indeed, to the extent that case law exists on these subjects from the Nixon and Clinton Administration, those decisions would seem to indicate that the Bush position is wrong. This Administration has been too cowardly to test its legal theories in court.

Beyond some troubling judicial decisions regarding state secrets, it’s striking just how few of these “precedents” have been put to the test in the courts. Even on issues such as torture and surveillance, where Congress has essentially acquiesced to the Administration’s position, the White House has cloaked its programs in such complete secrecy that it is unclear what, exactly, Congress has agreed to. In one sense, this means the Administration now has unfettered powers at its disposals based on the broad grant of Congressional authority. However, all that secrecy has a downside: if truly unconscionable conduct comes to light, Congress can say “we never agreed to this” and withdraw its permission, putting the president back in a legal gray zone. Either way, Congress always has the power to withdraw its grant of authority to the executive.

I guess my point is this: if a Guiliani or Clinton Administration tries to make legal arguments relying on executive authority “precedents” established by the Bush Administration, they may not have very much luck. Over and over, this Administration has claimed the right to do whatever it wants based on the “inherent constitutional authority” of the president, but it never bothered to assert these theories before the Supreme Court. Unless and until these theories are properly adjudicated, they are not really “precedents.” They are simply legal arguments that may or may not be valid.

Posted by owenz | October 25, 2007 9:47 AM

And their powers are subject to Congressional oversight. If Congress abrogated its responsibility after 9/11, that is not the Constitution's fault, is it?

Congress has never been particular interested in it's oversight responsibilities since World War II. In general, voters don't hold representatives and senators responsible for what they don't know about, and that means legislators have an incentive to not know about things the executive is doing. If the press recovers something, sometimes Congress responds--but Congress but itself never seems to uncover anything, which means it's unwillingness to provide oversight over secret matters is a structural, Constitutional problem of Congress as an institution, not just particularly lazy post-9/11 sessions of Congress.

And this is a huge problem, because military and intelligence decision makers are just like every other kind of bureaucrat--without oversight, they won't get the job done. They'll cook up hairbrained schemes like Iran-Contra or the Bay of Pigs, and miss stuff like 9/11.

Since deep Constitutional change will never happen , the only alternative I see is the appointment of third parties reporting to Congress providing oversight of the executive, perhaps with the power to block funds for any Congressional appropriation.

Posted by Consumatopia | October 25, 2007 10:02 AM

"In the American system, though, the president serves a fixed term and you're only supposed to remove from office for actual criminality. Simply making bad or even abusive decisions doesn't count."

Matt's interpretation of what isn't just one of many -it's plain wrong. The Constitution gives the power to impeach for "abusive" decisions and NOT for simple criminality. Which makes sense - the punishment for a conviction after impeachment is not prison time, its being removed from office and/or banned from future office. It also makes sense in terms of what institutions and involved in it - why have the House act as a grand jury and the Senate as a petit jury if the questions to be decided were narrowly legal. The houses of Congress are involved precisely because the "crimes" involved are political. If a president or other officer has also committed regular crimes, then they can be prosecuted for that as well, but that is an entirely different process which serves a different purpose.

So, in fact, the actions of Bush and Company are textbook examples of impeachable offenses. This is especially true when we remember that impeachment, as opposed to conviction, only begins the process, and need not mean that the acts have been proven - that part is the Senate's job.

Here's what the Federalist had to say (#65):

"A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt."

http://www.yale.edu/lawweb/avalon/federal/fed65.htm

Posted by David Kaib | October 25, 2007 10:03 AM

"The Constitution gives the power to impeach for "abusive" decisions and NOT for simple criminality."

Quoting the Federalist Papers is not the best source. Nice guys, but we have an actual document to reference.

"The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."

Seems pretty clear to me.

On the other hand, here is a brief analysis supporting a broad interpretation of this clause (I don't agree, but FYI).
http://www.constitution.org/cmt/high_crimes.htm

Posted by Fabius Maximus | October 25, 2007 10:26 AM

"Quoting the Federalist Papers is not the best source. Nice guys, but we have an actual document to reference."

I agree, but....

The issue isn’t broad versus narrow. It’s about what the clause does, that is, it’s purpose. I’m not suggesting that it goes beyond mere criminality, but that the clause DOESN’T cover mere criminality.

That is why the text refers to “HIGH crimes and misdemeanors” and not “crimes.” It’s also why the text specifies a punishment (removal from office and subsequent barring from office, but not prison, fines or death) that makes sense for abuse of the office and not mere criminality. It’s also why the text places this power in the House and Senate (political institutions) and not in more legal institutions. It also just makes sense – why place impeachment as a check on federal officers to ensure they don’t do something that none of us are allowed to do (break the law) as opposed to something that non-office holders can’t do (abuse their office)?

Notice that “treason” and “bribery” are precisely the kinds of abuses of office that I am talking about. Why specify these if the clause was referring to all crimes?

It seems pretty clear to me as well.

Posted by David Kaib | October 25, 2007 11:12 AM

David - are you implying that a President convicted of, say, murder could be imprisoned, but should not - indeed, could not - be impeached? That he would continue to be President from inside prison?

Posted by ajay | October 25, 2007 11:36 AM

In the case of impeachment, whatever the Congress calls a high crime or misdemeanor is a high crime or misdemeanor. If the president gets to have signing statements and ignore the plain language of a bill, the congress could call that a high crime and impeach the bastige for it. Of course, that's a bit like the joke, "If we had some bread we could have a ham sandwich. If we had some ham."

Posted by Jeffrey Davis | October 25, 2007 11:55 AM

Ajay - Wow, good question. If a president committed murder, without using any of the perks of office, and the investigation was not impeded by the executive branch, would it count? I’m not sure. But that’s certainly not the paradigmatic case of what the clause is about. I don’t think those who wrote the Constitution were concerned about the possibility of something like that happening. But odds are, if the president committed murder, he or she would resist prosecution using the powers of their office. Then they could be impeached (for the obstruction,) and then prosecuted (for the murder.) This is the more likely order of things. Or they would resign.

There has been at least one federal judge who tried to continue to take his salary while in prison, since he had not been impeached. (My recollection is that this led Congress to impeach him, but my memory is fuzzy on that.) Which is the point – criminal law and impeachment are related, but not the same.

Posted by David Kaib | October 25, 2007 11:59 AM

In the American system, though, the president serves a fixed term and you're only supposed to remove from office for actual criminality.

Let's put it plainer than that. An American president has not been removed from office, and will not be removed from office unless the make-up of the legislative branch is so one-sided that it can be done on a whim. The impeachment clause is de facto moot for so many reasons, dating back to 1800: the fact that the vice president is of the president's party, that the speaker of the House is next in line, etc.

This is a problem.

It is not unique to strong-president systems, though. The French National Assembly only recently approved an amendment that would authorise impeachment hearings on a two-thirds majority for "neglect of his duties manifestly incompatible with the exercise of his mandate", which seems less ambiguous than the US phraseology.

Curiously, though, there are recall mandates in places like Venezuela.

Posted by pseudonymous in nc | October 25, 2007 12:29 PM

Re: The President of the United States, as we've been seeing the past two years, can basically do what he wants know matter how unpopular he becomes or his specific decisions are.

Oh? Then why couldn't George W Bush simply decree Social Security privitization or order Terri Schiavo to be kept on life support no matter what court of legislature decided otherwise? For that amtter why couldn't he just dismiss the new Congress or annul the results of the election of 2006 and bring bacl the old Congress? Come in, I agree Bush is operating well outside his proper boundaries, but saying he can literally do anything he wants is hypebole.

Re: In theory, it seems like one consequence of presidential abuses of power is supposed to be that the president's approval ratings fall, making it harder for the president to move forward other initiatives that (s)he's presumably like to see enacted

Which is eaxctly what has happened. The Bush administration has been unable to progress on any new initiatives of any sort. It's basically been fighting a rearguard action to continue doing what it started doing in Bush's first term (most obviously in Iraq, but on a number of other fronts as well).

Re: The fact that term limits more or less allow a president to spend about a third of any eight-year term not giving a shit about the opportunity costs of his/her actions.

True, but it is precisely during that phase that most presidents accomplish fairly little of note, since they are generally seen as lame ducks and both their opponents and supporters tend to dismiss them as less relevant as they plan for the future.

Posted by JonF | October 25, 2007 1:06 PM

I find the parliamentary system rather attractive exactly because it makes the legislature more powerful (the Founders intended that). And parliamentary systems have a better track record of stability over presidential systems, mostly because of the no-confidence mechanism allowing otherwise unresolvable tensions between the two to be handled. In many presidential system, such tensions get resolved via coup.

But when it comes down to it, Americans are ingrained that checks and balances are good, and we're mature enough of a country that deadlock is hardly the disaster that it is in Latin American Countries (and indeed deadlock is often a good thing for us). So I would probably favor a semi-presidential system, which has both a popularly elected president and a prime minister appointed by the legislature. That would hopefully provide a better check on our executive than Congress.

Posted by fling93 | October 25, 2007 1:10 PM

Our system would work perfectly well if our members of Congress took themselves seriously. Yes, we're supposed to have a strong president, we're also supposed to have a strong Congress and a strong Judiciary.

Currently we have an ineffectual president who believes he's all-powerful (that's not the same thing as a strong president). We also have a pathetic Legislature, half of whom think the president has sole authority over military and security matters (no matter how incapable he is). And while those legislators are busy rubber stamping every fool idea the president dreams up, they're trying to strip the courts of all jurisdiction.

Posted by Jinchi | October 25, 2007 1:57 PM

I think the point made at Ezra's replies to Jinchi: congresscritters have been given powers that are more valuable to them in the short term, namely earmarking. Earmarks get them re-elected: standing up to the COMMANDER-IN-CHIEF!ZOMG! doesn't.

Posted by pseudonymous in nc | October 25, 2007 2:47 PM

I cannot possibly imagine the Founding Fathers of this nation doing anything but assuming some one like Bush would have been impeached in his first term. And how do you think they would react to the "process" which got him there?

Posted by Mooser | October 25, 2007 2:59 PM

I cannot possibly imagine the Founding Fathers of this nation doing anything but assuming some one like Bush would have been impeached in his first term. And how do you think they would react to the "process" which got him there?

Posted by Mooser | October 25, 2007 2:59 PM
===============================================

Let's see - one of the Founding Fathers (Pres. Adams) and his party (Federalists) passed the Alien and Sedition Acts that they used to throw political opponents into jail. Another (Pres. Jefferson) launched an undeclared war in the Middle East (Barbary States) prior to any sort of Congressional approval.

Posted by Campesino | October 25, 2007 3:32 PM

And how do you think they would react to the "process" which got him there?

Posted by Mooser | October 25, 2007 2:59 PM
================================================

I imagine they would have been pretty comfortable with it as, after all, they were the guys who designed the Electoral College. Also you have to remember that the Constitution left the method of picking presidential electors to the states. In most of the early elections there wasn't any direct vote for president by individuals and in most states the state legislature picked who the electors were. No messy hanging chads there

Posted by Campesino | October 25, 2007 3:44 PM

Whatever powers the Constitution assigns to, not taken by, the executive branch, one power that the Constitution does not give to the executive branch is to break arbitrarily the laws that it chooses. All powers assumed by the executive branch must be within the requirements of the Constitution and the law. No constitutional exceptions for criminality exist.

Unlimited presidential power is absurd because it denies human nature, and affirms criminality. Why would the Constitution instruct on the conditions that must exist for impeachment? Clearly, the intent was not to allow a criminal to run roughshod over foreign policy, the rule of law, and the principles of a free civilized nation.

Posted by purpleOnion | October 25, 2007 4:31 PM

"Let's see - one of the Founding Fathers (Pres. Adams) and his party (Federalists) passed the Alien and Sedition Acts that they used to throw political opponents into jail."

Except when he had his "accountability moment" in 1800...well, the dude lost

Which is why elections are, in the end, supposed to be the last, best defense.

The Founders probably thought (remember there was no 22nd Amendment then) "Well, even if he's not impeached, he'll definitely lose the next time he's running for office."

One more thing. I really don't understand why people don't bring up the age requirements anymore.

I mean, I find it hilarious that the Daily Show writers in AMERICA: The Book show more interest than practically any constitutional scholars.

If the minimum age for president is 35, and the life expectancy then was only until about 42, as Stewart and the others said, at most we're only looking at 5-10 years of tyranny before the bastard kicks the bucket.

I think that if you really wanted to recapture the spirit of the founders, we'd arrange minimum age requirements so that officeholders have a term limit that only someone like Jesus could bypass.

Posted by Greg | October 25, 2007 4:47 PM

Matt you're an idiot. Your baby face and youth do not excuse you on this point.

Posted by Steven D | October 25, 2007 6:13 PM

Whatever powers the Constitution assigns to, not taken by, the executive branch, one power that the Constitution does not give to the executive branch is to break arbitrarily the laws that it chooses. All powers assumed by the executive branch must be within the requirements of the Constitution and the law. No constitutional exceptions for criminality exist.
================================================

You are assuming with this statement that every law enacted by the legislative branch is constitutional. Let's say Congress passes a law that is enacted that says only male, red-headed, left-handed Catholics can be Cabinet Members. You don't think that the Executive branch would be entitled to "choose" to "arbitrarily" break the law to force the judicial review to have that law declared unconstitutional?

We already went through something like that with the "Tenure of Office Act". Pres. Andrew Johnson refused to obey it and Congress used that as a pretext to impeach him in 1868. The Senate wouldn't vote to remove him from office, but that law was later declared unconstitutional by the Supreme Court.

Posted by Campesino | October 25, 2007 6:23 PM