Separation Of Powers 1787-2008
George Will has a great column in today’s Washington Post on the significance of President Bush’s decision to go over Congress’s head and give taxpayer dollars to General Motors and Chrysler:
Congress’s marginalization was brutally underscored when, after lawmakers did not authorize $14 billion for General Motors and Chrysler, the executive branch said, in effect: Congress’s opinions are mildly interesting, so we will listen very nicely — then go out and do precisely what we want.
On Friday the president gave the two automakers access to money Congress explicitly did not authorize. More money — up to $17.4 billion — than had been debated, thereby calling to mind Winston Churchill on naval appropriations: “The Admiralty had demanded six ships: the economists offered four: and we finally compromised on eight.”
The president is dispensing money from the $700 billion Congress provided for the Troubled Asset Relief Program. The unfounded assertion of a right to do this is notably brazen, given the indisputable fact that if Congress had known that TARP — supposedly a measure for scouring “toxic” assets from financial institutions — was to become an instrument for unconstrained industrial policy, it would not have been passed.
As Will notes, of course, this is hardly a surprise. For eight years the Bush Administration, relying largely on the “unitary Executive” theories of legal scholars like John Yoo, has sought to expand the power of the President far beyond anything set forth in Article II of the Constitution. Principally, these expansions have been in areas surrounding the War on Terror, such as the Presidential authorization of a warrant-less wiretapping program that violated both the spirit and the letter of the Foreign Intelligence Surveillance Act.
As Will notes, however, that expansion of Executive Power has ocurred in other areas:
According to former representative Mickey Edwards in his book “Reclaiming Conservatism,” the president has issued “signing statements” designating 1,100 provisions of new laws — more designations than have been made by all prior presidents combined — that he did not consider binding on him or any other executive branch official.
Still, most of the administration’s executive truculence has pertained to national security, where the case for broad prerogatives, although not as powerful as the administration supposes, is at least arguable. With the automakers, however, executive branch overreaching now extends to the essence of domestic policy — spending — and traduces a core constitutional principle, the separation of powers.
For all the world, it looks as though the Bush Administration has spent the last eight years putting into action an idea that Richard Nixon put forward during his now-famous interviews with David Frost:
FROST: The wave of dissent, occasionally violent, which followed in the wake of the Cambodian incursion, prompted President Nixon to demand better intelligence about the people who were opposing him. To this end, the Deputy White House Counsel, Tom Huston, arranged a series of meetings with representatives of the CIA, the FBI, and other police and intelligence agencies.
These meetings produced a plan, the Huston Plan, which advocated the systematic use of wiretappings, burglaries, or so-called black bag jobs, mail openings and infiltration against antiwar groups and others. Some of these activities, as Huston emphasized to Nixon, were clearly illegal. Nevertheless, the president approved the plan. Five days later, after opposition from J. Edgar Hoover, the plan was withdrawn, but the president’s approval was later to be listed in the Articles of Impeachment as an alleged abuse of presidential power.
FROST: So what in a sense, you’re saying is that there are certain situations, and the Huston Plan or that part of it was one of them, where the president can decide that it’s in the best interests of the nation or something, and do something illegal.
NIXON: Well, when the president does it that means that it is not illegal.
FROST: By definition.
NIXON: Exactly. Exactly. If the president, for example, approves something because of the national security, or in this case because of a threat to internal peace and order of significant magnitude, then the president’s decision in that instance is one that enables those who carry it out, to carry it out without violating a law. Otherwise they’re in an impossible position.
When the President does it’s not illegal.
Stop for a moment and think about the implications of that statement, and the implications of eight years of the Bush “unitary Executive” theory, not to mention Dick Cheney’s creative interpretation of the powers of the Vice-President.
It essentially means that all the work that the Founding Fathers did to create an Executive who could rule but not be a ruler have come to naught. We are now ruled by a man who is King in all but name and title.
Yes, we may elect a new one every four or eight years, but if the successor holds on to the same powers that his predecessors have, and if Congress does nothing to stop it, then the Constitutional framework that was created 221 years ago is, for all purposes, broken.
H/T: James Joyner
Cross-posted at Below The Beltway