For libertarians, liberals, and limited government conservatives, the most alarming aspect of the Bush 43 administration has been the drive to expand the power of the executive at the expense of the judicial and legislative branches. The recent Washington Post series ÃƒÂ¢Ã¢â€šÂ¬Ã…â€œAnglerÃƒÂ¢Ã¢â€šÂ¬Ã‚? confirms the fears of many – This administration, while paying lip service to the constitutional notion of three co-equal branches, has consciously and forcefully promoted an agenda to institutionalize the Presidency as ÃƒÂ¢Ã¢â€šÂ¬Ã…â€œmore equalÃƒÂ¢Ã¢â€šÂ¬Ã‚? than the other two branches. This is not new. The administration has been quite explicit about their intent to expand the power of the presidency. What is new, is the degree to which the series reveals that while the President may be the driver of the administration bus, the Vice-President is the navigator setting the political destination and steering the administration course, is the engine powering this ideological vehicle grinding opposition under the wheels, and is pumping the high octane political fuel for this reckless joy ride. What is interesting, is that despite, and perhaps even because of this single minded driving obsession, the office of the Presidency will arrive at a completely different destination.
Not surprisingly, political opposition continues to focus on the car wreck that the libertarian Cato Institute called a ÃƒÂ¢Ã¢â€šÂ¬Ã…â€œPower SurgeÃƒÂ¢Ã¢â€šÂ¬Ã‚? in their May, 2006 analysis of the administrationÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢s constitutional record. Two recent examples illustrating this perspective:
- The publication of ÃƒÂ¢Ã¢â€šÂ¬Ã…â€œUnchecked and Unbalanced – Presidential Power in a Time of TerrorÃƒÂ¢Ã¢â€šÂ¬Ã‚? – From the International Herald Times review:
ÃƒÂ¢Ã¢â€šÂ¬Ã…â€œIn their chilling and timely book Frederick A. O. Schwarz Jr., senior counsel at the Brennan Center for Justice at the New York University School of Law, and Aziz Z. Huq, who directs the Liberty and National Security Project at the Brennan Center, argue that the Bush administration’s “monarchist claims of executive power” are “unprecedented on this side of the North Atlantic,” and that its “executive unilateralism not only undermines the delicate balance of our Constitution, but also lessens our human liberties and hurts vital counterterrorism campaigns” by undermining America’s moral authority and standing in the world.ÃƒÂ¢Ã¢â€šÂ¬Ã‚?
- The well attended ÃƒÂ¢Ã¢â€šÂ¬Ã…â€œCurbing The Imperial PresidencyÃƒÂ¢Ã¢â€šÂ¬Ã‚? panel discussion at the liberal ÃƒÂ¢Ã¢â€šÂ¬Ã…â€œTake Back AmericaÃƒÂ¢Ã¢â€šÂ¬Ã‚? conference a few weeks ago. The conference was covered by David Weigel at Reason who highlighted this nugget:
ÃƒÂ¢Ã¢â€šÂ¬Ã…â€œÃƒÂ¢Ã¢â€šÂ¬Ã‚Â¦ the most interesting exchange came near the very end, after Podesta had heard a week’s worth of griping about presidential power crammed into one hour. “Keep in mind,” he said, “we could go too far in hobbling the president. The next president will repeal Don’t Ask Don’t Tell. Congress won’t support it. We want to restore some balance, but you don’t want to give all of this power to Congress.”
Aye, John – there’s the rub. With all due respect to the International Herald Tribune, the time for the Fredrick Schwarz book has come and gone. In May 2006, when the Cato article was published, it was timely. But it is no longer May 2006. It is July 2007. There have been Supreme Court decisions and there has been a congressional election. We now have a Democratic majority in congress, divided government, a lame duck executive without popular support and the pendulum is swinging back with a vengeance. While many in the blogosphere and MSM have focus on the WAPO exposure of the worrisome but ultimately historical aspects of Cheney’s role in this administration, few seemed to note the more relevant and timely message of the article:
“The way he did it — adhering steadfastly to principle, freezing out dissent and discounting the risks of blow-back — turned tactical victory into strategic defeat. By late last year, the Supreme Court had dealt three consecutive rebuffs to his claim of nearly unchecked authority for the commander in chief, setting precedents that will bind Bush’s successors.”
“The irony with the Cheney crowd pushing the envelope on presidential power is that the president has now ended up with lesser powers than he would have had if they had made less extravagant, monarchical claims,” said Bruce Fein, an associate deputy attorney general under President Ronald Reagan.”
“One of the main themes of the series is that Cheney, while harshly rebuked, has in practice been far less leashed than most people think, thanks largely to his willingness to build and exploit legal loopholes and questionable claims to get around adverse rulings. But the fact remains that he has weakened the White House for future occupants, especially ones with more respect for legal precedent, logic and intent.”
The genius of our constitution pitting “separate and equal” partisan branches with “ambition countering ambition” and holding each other in “check and balance” is that the swings of power behave like a pendulum, rising and falling in any given branch. And like any pendulum, the further it it is pushed out, the further it swings back. If you push it really hard and fast in one direction with the hope it will stay there, then you better hope to break the constitutional framework that holds the cable, or when that pendulum swings back it will knock you well behind where you started.
The ultimate irony: The historical legacy of Dick Cheney and this administration will be a permanently weaker executive branch, constrained by shackles applied by the judiciary and the legislature, precipitated precisely by and in reaction to the overreach of Dick Cheney in pursuit of a stronger executive branch.
continued at “Divided We Stand United We Fall”