Friday, May 27, 2005
Do People Really Want an Imperial President? Because in some ways you already have one
Over the last couple of years I have become somewhat addicted to talk radio. For this I blame three things: (1) getting a car; (2) having a decent commute to and from work; and (3) the abject failure of modern and "popular" radio stations to play anything that even resembles quality music. Be that as it may (it could easily be a post all its own), I’m really surprised by the number of people who call into to these shows (be they liberal, conservative, or C-SPAN which is "bi-partisan") who say things like "I support [GWB] or [the President] no matter what," " people (read: liberals) who don’t support this President are not good Americans," or "this President deserves to have his agenda acted upon no matter what." Now granted, I’m paraphrasing here a bit for effect, but anyone who has listened to even a bit of talk radio these days knows what I’m referring to. Now to be fair, the left is not any better, nor was it any different when Clinton was President, so this phenomena of blind support for the President has nothing to do with partisan politics.
What it does have to do with, in my opinion, is a basic misunderstanding of how our government works, or should I say, is supposed to work. More and more often I get the feeling that the average American forgets about Congress's existence and thinks that the Administration or the Executive Branch runs the entire show. Now, I can make all the arguments that based on the structure of the Constitution (listing Congress first) that the framers intended the legislative branch to be the most important/powerful branch of government, but that would be boring, and my fellow bloggers are equally, if not more, capable of doing the same thing. In addition, the claim, while supportable, it also contentious with a fair amount of evidence supporting alternative interpretations. Rather I want to focus on the "power-grab" that Presidents usually engage in, but that this Administration in particular has seemed to perfect. This, again, in my opinion, is leading down the road to an "Imperial Presidency."
Paul and I have commented on the acquiescence of Congress, and its failure to assert its independence numerous times, but neither of us has really attempted to flesh out some recent examples of the problems that this abdication of power has caused. So I want to focus on two things that have occurred since President Bush has taken office that highlight this dangerous trend. First, the President’s refusal to respond to or enforce lawfully enacted requirements for information and reports to Congress. Second, the President’s naked attempt to extend the doctrine of executive privilege.
Take the following as a prime illustration of the first problem. In each of the recently enacted "terrorist related" legislation (Patriot Act, Air Transportation Security Act of 2002, Homeland Security Act, and Intelligence Reform and Terrorism Prevention Act of 2004), as well as in numerous other laws there have been hundreds if not thousands of requirements that the Administration (President, DOD, and other relevant agencies) report on the progress and use of the law that they are making. Some of these requirements involve simply filing written documents with various Congressional committees, while others involve live testimony before committees, and still others require periodic updates to Congress before additional provisions go into effect or additional money is made available. None of these requirements are new, Congress has required reports by the President since 1787, unusually onerous, or unconstitutional. This President, however, unbeknownst to many Americans has indicated in signing statement after signing statement, that these reports are not to be filed and that he will not enforce the requirements on his agencies. In effect, the President has exercised a line-item veto over reporting requirements to Congress. Now, for those of our readers who are not attorneys, the Line-Item Veto is a power that Presidents of both parties have advocated being granted for a long time. President Clinton actually succeeded early in his first term in convincing Congress to give him this power over appropriations measures. The statute was later declared unconstitutional in a case titled Clinton v. New York, for the simple, yet straightforward reason that it violated the Constitution’s detailed prescriptions on how legislation is to become law. Simply put, bills are to be passed in identical form by majorities of both the House and the Senate and then signed by the President. Nowhere does the Constitution contemplate a bill passed by both houses, then amended by the President via a line-item veto and then signed into law. So what has this President done, well he’s effectively vetoed over 600 provisions requiring his administration to report on its activities to Congress.
What, you ask, has Congress done in response...wait for it...NOTHING, not a gosh darn thing. Well, okay, that’s not quite true. A couple of weeks ago a House sub-committee spanked the Administration with the loss of $700 million dollars until it completed a long-overdue report on aviation security. It remains to be seen if this will have any effect. I tend to doubt it as the money will likely be restored in conference and besides $700 million in a $30+ billion dollar appropriations bill really isn’t all that big of a deal. While all of this may not seem like a big deal to you, you would be wrong to think that way. If the President can simply refuse to enforce lawfully enacted reporting requirements, it begs the question, of what’s next, or what else has Congress done that the President has decided he doesn’t like, and therefore, will not follow? Furthermore, it sets an awful precedent for future Presidents and Congresses regardless of which political party is in control. Finally, well it’s a big deal because its illegal, not to mention unconstitutional, and it continuation destroys the delicate separation of powers principle that this nation was founded upon.
For our next example one needs look no further than the dealings between the Vice-President’s office and the Government Accountability Office regarding the energy commission, as well as the actions of the President with regard to the Medicare actuary who was responsible for communicating to Congress on the projected costs of the proposed, and ultimately enacted prescription drug benefit during the 108th Congress. Both cases are long and detailed, but they boil down to this, under this administration the principle of executive privilege, found no where in the constitution has been extended far beyond even that which President Nixon could have imagined. I mean when the President asserted that the medicare actuary was protected by executive privilege from disclosing the Administrations own projected cost figures, he not only extended the protection so far down the chain of command, he also thwarted the ability of Congress and the intent of the statute that created the job of actuary in the first place. If you look at the statute, the actuary’s job is protected by "for cause removal" meaning that while the person works in the Executive Branch and reports to the President, there has to be a stated reason for the person’s termination, he can’t simply be fired for any old reason. In other words, the actuary is not an at-will employee. In fact, that protection was given precisely so that communication between that position and Congress could occur free from any political influence. So much for Congress’s intent, by extending executive privilege to such a job the President has shielded the person from communicating with Congress something required by the statute. More to the point, there are other federal laws that prohibit people from thwarting a government official from communicating or sharing information with Congress. Again what has congress done, that’s right, you guessed it, NOTHING. They still don’t actually have the actuary’s figures, even though every major media outlet reported that they were $200-300 billion dollars more than what CBO estimated and the GOP Congress relied on when passing the bill.
So when people say that one should support the President because that is what American’s do I wonder if (a) they are aware of some of the things that this President has done, and (2) if they have forgotten about the other co-equal branches of government. More to the point, I wonder if congress remembers that it is a co-equal independent branch of government that is not beholden to this or any other President, but can and has the responsibility to take its own actions, interpret the constitution and the laws its own way, and act according to what it thinks is in the best interest of this government and nation. If they have forgotten, they may as well recess permanently and appoint the President King, because that’s where we’re heading if they don’t take back some power and influence soon. What’s even worse, is I’m not sure that many Americans would notice or even care.
What it does have to do with, in my opinion, is a basic misunderstanding of how our government works, or should I say, is supposed to work. More and more often I get the feeling that the average American forgets about Congress's existence and thinks that the Administration or the Executive Branch runs the entire show. Now, I can make all the arguments that based on the structure of the Constitution (listing Congress first) that the framers intended the legislative branch to be the most important/powerful branch of government, but that would be boring, and my fellow bloggers are equally, if not more, capable of doing the same thing. In addition, the claim, while supportable, it also contentious with a fair amount of evidence supporting alternative interpretations. Rather I want to focus on the "power-grab" that Presidents usually engage in, but that this Administration in particular has seemed to perfect. This, again, in my opinion, is leading down the road to an "Imperial Presidency."
Paul and I have commented on the acquiescence of Congress, and its failure to assert its independence numerous times, but neither of us has really attempted to flesh out some recent examples of the problems that this abdication of power has caused. So I want to focus on two things that have occurred since President Bush has taken office that highlight this dangerous trend. First, the President’s refusal to respond to or enforce lawfully enacted requirements for information and reports to Congress. Second, the President’s naked attempt to extend the doctrine of executive privilege.
Take the following as a prime illustration of the first problem. In each of the recently enacted "terrorist related" legislation (Patriot Act, Air Transportation Security Act of 2002, Homeland Security Act, and Intelligence Reform and Terrorism Prevention Act of 2004), as well as in numerous other laws there have been hundreds if not thousands of requirements that the Administration (President, DOD, and other relevant agencies) report on the progress and use of the law that they are making. Some of these requirements involve simply filing written documents with various Congressional committees, while others involve live testimony before committees, and still others require periodic updates to Congress before additional provisions go into effect or additional money is made available. None of these requirements are new, Congress has required reports by the President since 1787, unusually onerous, or unconstitutional. This President, however, unbeknownst to many Americans has indicated in signing statement after signing statement, that these reports are not to be filed and that he will not enforce the requirements on his agencies. In effect, the President has exercised a line-item veto over reporting requirements to Congress. Now, for those of our readers who are not attorneys, the Line-Item Veto is a power that Presidents of both parties have advocated being granted for a long time. President Clinton actually succeeded early in his first term in convincing Congress to give him this power over appropriations measures. The statute was later declared unconstitutional in a case titled Clinton v. New York, for the simple, yet straightforward reason that it violated the Constitution’s detailed prescriptions on how legislation is to become law. Simply put, bills are to be passed in identical form by majorities of both the House and the Senate and then signed by the President. Nowhere does the Constitution contemplate a bill passed by both houses, then amended by the President via a line-item veto and then signed into law. So what has this President done, well he’s effectively vetoed over 600 provisions requiring his administration to report on its activities to Congress.
What, you ask, has Congress done in response...wait for it...NOTHING, not a gosh darn thing. Well, okay, that’s not quite true. A couple of weeks ago a House sub-committee spanked the Administration with the loss of $700 million dollars until it completed a long-overdue report on aviation security. It remains to be seen if this will have any effect. I tend to doubt it as the money will likely be restored in conference and besides $700 million in a $30+ billion dollar appropriations bill really isn’t all that big of a deal. While all of this may not seem like a big deal to you, you would be wrong to think that way. If the President can simply refuse to enforce lawfully enacted reporting requirements, it begs the question, of what’s next, or what else has Congress done that the President has decided he doesn’t like, and therefore, will not follow? Furthermore, it sets an awful precedent for future Presidents and Congresses regardless of which political party is in control. Finally, well it’s a big deal because its illegal, not to mention unconstitutional, and it continuation destroys the delicate separation of powers principle that this nation was founded upon.
For our next example one needs look no further than the dealings between the Vice-President’s office and the Government Accountability Office regarding the energy commission, as well as the actions of the President with regard to the Medicare actuary who was responsible for communicating to Congress on the projected costs of the proposed, and ultimately enacted prescription drug benefit during the 108th Congress. Both cases are long and detailed, but they boil down to this, under this administration the principle of executive privilege, found no where in the constitution has been extended far beyond even that which President Nixon could have imagined. I mean when the President asserted that the medicare actuary was protected by executive privilege from disclosing the Administrations own projected cost figures, he not only extended the protection so far down the chain of command, he also thwarted the ability of Congress and the intent of the statute that created the job of actuary in the first place. If you look at the statute, the actuary’s job is protected by "for cause removal" meaning that while the person works in the Executive Branch and reports to the President, there has to be a stated reason for the person’s termination, he can’t simply be fired for any old reason. In other words, the actuary is not an at-will employee. In fact, that protection was given precisely so that communication between that position and Congress could occur free from any political influence. So much for Congress’s intent, by extending executive privilege to such a job the President has shielded the person from communicating with Congress something required by the statute. More to the point, there are other federal laws that prohibit people from thwarting a government official from communicating or sharing information with Congress. Again what has congress done, that’s right, you guessed it, NOTHING. They still don’t actually have the actuary’s figures, even though every major media outlet reported that they were $200-300 billion dollars more than what CBO estimated and the GOP Congress relied on when passing the bill.
So when people say that one should support the President because that is what American’s do I wonder if (a) they are aware of some of the things that this President has done, and (2) if they have forgotten about the other co-equal branches of government. More to the point, I wonder if congress remembers that it is a co-equal independent branch of government that is not beholden to this or any other President, but can and has the responsibility to take its own actions, interpret the constitution and the laws its own way, and act according to what it thinks is in the best interest of this government and nation. If they have forgotten, they may as well recess permanently and appoint the President King, because that’s where we’re heading if they don’t take back some power and influence soon. What’s even worse, is I’m not sure that many Americans would notice or even care.
# posted by mouldfan : 8:28 AM
