Savage v. Goldsmith: Is presidential power a one-way ratchet? Has Cheney succeeded?
Several people in the comments section yesterday questioned my contention that presidential power is not a partisan issue because future Democratic presidents will enjoy the same enhanced authorities that the Bush-Cheney administration has pioneered. They noted that the push to concentrate more power in the White House in recent decades has been largely the work of Republican administrations, and they argued that a future Democratic administration would behave differently. So this raises a question worth examining in more detail: Will the Cheney Project outlive the Bush-Cheney administration?
As many of you know, my new account of the Bush-Cheney administration’s efforts to expand presidential power, Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy, is coming out alongside Jack Goldsmith’s new memoir of his 10-month tenure as head of the Office of Legal Counsel, The Terror Presidency: Law and Judgment Inside the Bush Administration. Our books complement each other in many respects: mine, based on interviews and documents, is a comprehensive overview of many different aspects of the project to expand White House power; Goldsmith’s, based on his own experiences, focuses on one particularly important component: the effort to free the commander-in-chief from a need to obey rules -- laws and ratified treaties – in national security matters.
In one important respect, our two accounts diverge. Goldsmith argues that the Cheney-Addington effort to expand presidential power has backfired, and the ironic result is that future presidents will be weaker. I argue that their push has been the administration’s most successfully implemented policy, and that future presidents will be stronger as a result. So what will follow after the Bush-Cheney administration passes into history?
I haven’t read Goldsmith’s book yet because my pre-ordered copy has not arrived. But Goldsmith’s view is on display in several advance interviews and accounts of his book. When the administration wanted to do something – warrantless surveillance, harsh interrogations for detainees – that was apparently prohibited by a law or ratified treaty, it could have gone to Congress and asked lawmakers to change the rules. Instead, it asserted that presidents have an inherent and exclusive power to ignore laws and ratified treaties at their own discretion in national-security matters. By basing its policies on this shakier legal foundation, Goldsmith argues, the administration created a backlash that will leave a lingering mistrust of executive power in Congress and the Supreme Court. From the New York Times Magazine:
The Bush administration’s legalistic “go-it-alone approach,” Goldsmith suggests, is the antithesis of Lincoln and Roosevelt’s willingness to collaborate with Congress. Bush, he argues, ignored the truism that presidential power is the power to persuade. “The Bush administration has operated on an entirely different concept of power that relies on minimal deliberation, unilateral action and legalistic defense,” Goldsmith concludes in his book. “This approach largely eschews politics: the need to explain, to justify, to convince, to get people on board, to compromise.”
Goldsmith says he remains convinced of the seriousness of the terrorist threat and the need to take aggressive action to combat it, but he believes, quoting his conservative Harvard Law colleague Charles Fried, that the Bush administration “badly overplayed a winning hand.” In retrospect, Goldsmith told me, Bush “could have achieved all that he wanted to achieve, and put it on a firmer foundation, if he had been willing to reach out to other institutions of government.” Instead, Goldsmith said, he weakened the presidency he was so determined to strengthen. “I don’t think any president in the near future can have the same attitude toward executive power, because the other institutions of government won’t allow it,” he said softly. “The Bush administration has borrowed its power against future presidents.”
By contrast, I make a nearly opposite case in “Takeover.” As I write:
Yet even if the victor in the 2008 presidential election declines to make use of the aggrandized executive powers established by the Bush- Cheney administration, in the long run such forbearance might make little difference. The accretion of presidential power, history has shown, often acts like a one-way ratchet: It can be increased far more easily than it can be reduced. The annals of American history are now filled with new precedents in which a White House has claimed the power to bypass laws and then acted upon that claim, especially in matters of national security. The zone of secrecy surrounding the executive branch has been dramatically widened. The Supreme Court has been sharply tilted toward a sympathetic view of executive power, and the White House’s political control of the permanent government has been dramatically expanded. The federal statute books are now riddled with asterisks, thanks to the explosive growth of signing statements, which have made it clear that a president can routinely sign legislation while declaring himself free to ignore sections that restrain his own powers — a dramatic change that has the potential to take away from Congress its constitutional right to override a president’s decision to reject a new law.
The expansive presidential powers claimed and exercised by the Bush- Cheney White House are now an immutable part of American history -- not controversies, but facts. The importance of such precedents is difficult to overstate. As Supreme Court justice Robert Jackson once warned, any new claim 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.”
Sooner or later, there will always be another urgent need.
In the short-term, I’m not as sure as Goldsmith about the backlash. Witness the Democratic Congress’ recent willingness to pass the White House’s preferred version of the Protect America Act, expanding its power to wiretap without warrants and providing for little in the way of oversight, even after-the-fact.
But whatever the short-term difficulties, in the long term it seems likely that Dick Cheney and his aide David Addington have succeeded. History has shown that backlashes against executive power are short-lived, and that precedents established during periods of expansion survive to resurface once political winds have shifted again. After Nixon’s “imperial presidency” fell, Congress began conducting vigorous oversight again and passed a series of new controls on the exercise of presidential power in order to prevent future abuses. For example, it passed the War Powers Resolution, which required presidents to consult Congress when sending troops into combat and to pull out of any military action after 60 days if it has not received explicit congressional authorization. It created an independent counsel who could investigate White House wrongdoing without being fired by the president. And it created many other controls, which I explain in greater detail in my book. But, as I wrote in the October issue of The Atlantic Monthly:
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.
It may be that this history will not repeat itself. But there is no reason to think that will be the case.
This brings us to why I say that presidential power is not a partisan issue, and that future Democratic presidents will be stronger because of the Bush-Cheney record. I do not mean to suggest that Democrats, in their modern form, are just as likely as Republicans to actively seek ways to expand presidential power beyond what they inherit. Nor do I mean to suggest that a Democratic president is certain to impose or continue the same specific policies of the Bush-Cheney record – Guantanamo, say, or harsh interrogations. A Democratic president will have his or her own policy preferences. But history has shown that all presidents, no matter their party, are willing to draw on all the tools available to them to achieve their policy goals – even if they only use what they have inherited, rather than trying to grow them.
For example, Bill Clinton was the first Democrat to become president after Reagan’s legal team had come up with the idea of frequently issuing signing statements as a tool to expand presidential power. Clinton kept issuing them, too – he made the second most challenges in history to that point. On the other hand, the Clinton administration was still relatively restrained. In 1996, for example, Clinton’s legal team declared that a president could decline to enforce or obey a law he had signed only if a court had already made clear that such a law was unconstitutional. (The context was a provision in a military bill requiring the Pentagon to expel HIV-positive but otherwise healthy soldiers from the military – a law Clinton’s legal team said was probably unconstitutional but which no court had reviewed yet.)
After the Bush-Cheney administration leaves office in 2009, and especially after another election cycle or two have passed, the White House will have a clean slate. The players and the political fights will be different. The mistrust will be gone, but the precedents will remain. So while the Cheney Project may end with the Bush-Cheney administration, future presidents will inherit the fruits of its labors.
Comments (39)
"So while the Cheney Project may end with the Bush-Cheney administration, future presidents will inherit the fruits of its labors."
Well, at least until they are challenged in court up to the US Supreme Court. And then the Court can wade through all the BS and actually determine which 'powers' are constitutional and which are not, with an eye on the issue that whatever they decide, the power in question will be available/unavailabe to all future administrations, Democratic or Republican or other.
September 11, 2007 12:32 PM | Reply | Permalink
I argue that their push has been the administration’s most successfully implemented policy, and that future presidents will be stronger as a result. So what will follow after the Bush-Cheney administration passes into history?
I'd argue that there will be blowback because when cooperation isn't possible, then factions form. Of course, that's why I think that the government "has legalized spying" to ensure that alternative voices and choices can be oppressed.
Anyway, I think that diversity can be oppressed short term, but not long term. You can read Niccolò Machiavelli who described long ago how democracies yield to oligarchies who then yield to dictatorships-- and then back to a democracy?
I was reading Jean-Jacques Rousseau today; he's a guy who conceptualized that a democracy could exist without individual freedom. The book that I was reading claimed that Lockean democracy had indeed won the battle versus Rousseau's notion of democracy since Communism fell.
Cheny seems to be bringing us communism, or something like that. We see it in false news reports, the rollback of our "freedom of information" rights and electronic voting machines that rig elections.
So, if the populist voice rises up again-- and the common man demands to be heard, Cheney's legacy will be toast.
It's my hope that the democratic party starts to read MLK, Locke-- and others, and decides to restore Lockean democracy-- that's my opinion anyway!
To boldly go...
September 11, 2007 12:38 PM | Reply | Permalink
"The Supreme Court has been sharply tilted toward a sympathetic view of executive power"...when the Executive is populated by the GOP. As proven by the 2000 election decision, SCOTUS is not above blatantly politicized decisions. Assuming a Democrat becomes POTUS in '08, if he/she were to try the same sorts of illegal overreaches, they'll smack it down on review. What's more, you can be damned sure that the existing conservative majority would be joined by at least one or two of the reasonable liberals on the court. If the GOP somehow wins back the presidency though, it's 5-4 in favor of the GOP. Checks and balances, shmecks and shmalances.
September 11, 2007 12:53 PM | Reply | Permalink
First was Marius
And after Marius came Sulla
after Sulla there was Caesar
Caesar bequeathed Octavian
from Octavian came Nero
History travels in ruts, the worst is yet to come.
September 11, 2007 12:55 PM | Reply | Permalink
The Savage vs. Goldsmith outcomes will be determined, not so much by whether future presidents view power expansively, but by whether there are negative consequences over the next 3-4 years for the architects of this view.
We know that, but for the hardcore, Bush-Cheney will not fare well, though there will be few personal consequences. What will happen to Addington? Yoo? Gonzales? Much depends on the results of both government and journalistic investgative endeavor during that time frame. Should facts be uncovered and documents surface that show, in black and white, truly hair-curling power grabs, not to mention cynicism and personal aggrandizement, the 'cause' of executive power expansion will suffer.
Should we get a chance to read the Yoo theories on torture, habeus and the Geneva Convention, as opposed to hearing about their effects third hand, does Yoo still have a job at Pepperdine Law? Is Addington employable anywhere outside a right wing think tank if various of the many bureaucratic power grab stink bombs come to light? As for Gonzales ...
They can't shred it all. Mr. Savage, your service, and those of the few who have gone that difficult route, has been invaluable. Necessarily, it has just begun.
September 11, 2007 12:56 PM | Reply | Permalink
The ratcheting effect of precedent is quite real. Once a new power has been introduced, we can be sure it will be exercised again, unless specifically checked by a countervailing power.
As post-Watergate history demonstrates, neither the courts nor existing legislative oversight powers are of much lasting help. No other duly-constituted power in our system is sufficiently strong, at present, to check the powers that have been accumulated in the imperial presidency. The imbalance is Constitutional in nature and the countervailing power, if there is to be one, will need explicit Constitutional sanction.
September 11, 2007 1:02 PM | Reply | Permalink
"The federal statute books are now riddled with asterisks, thanks to the explosive growth of signing statements, which have made it clear that a president can routinely sign legislation while declaring himself free to ignore sections that restrain his own powers — a dramatic change that has the potential to take away from Congress its constitutional right to override a president’s decision to reject a new law."
A signing statement is hardly "law" just because a President says so (or a vice president tells a president to say so). I would agree it's moot if unchallenged, but that would be beside the point in terms of legality.
You seem to be suggesting the divine right of kings isn't so bad... just as long as it's the right king. Most Americans are appalled by such stuff as that.
And mcs,
Cheney is so NOT communist. He's an authoritarian dictator type, but that is not remotely the same thing.
Keep up your reading, though,...it helps with that eventual emergence of filtering and synthesis.
September 11, 2007 1:05 PM | Reply | Permalink
I fully agree with you, Mr. Savage. The issue of executive privilege and power is one of the main reasons I fear a Hillary Clinton presidency. Her penchant for extreme secrecy seems like a perfect fit with Cheney-Addington's great gift to the next president.
A question that should be seriously posed at a presidential debate: As to executive privilege, how much of it will you give back to Congress and the American people?
September 11, 2007 1:25 PM | Reply | Permalink
I think you are both correct. Goldsmith is because Cheney did over-reach and exposed the problem so that it will be easier to deal with politically.
You are because we would have to be fools to assume the problem is self-correcting or that a Democratic president would voluntarily relinquish any such power.
We will have to work hard to diminish the power of the president.
September 11, 2007 1:30 PM | Reply | Permalink
Under the Cheney-Addington approach, the President and his Administration are free to ignore any court decisions, including Supreme Court decisions, with which they disagree[1]. And other than a few building policemen the Supreme Court indeed has no way to enforce its decisions against a hostile Administration.
So I have to disagree with this.
sPh
[1] After such disagreement is laundered through the wash of "national security", of course - but it is also part of the Cheney-Addington approach that since 9/11 every single decision a President makes is a national security decision.
September 11, 2007 1:39 PM | Reply | Permalink
"Cheney is so NOT communist. He's an authoritarian dictator type, but that is not remotely the same thing."
I know that some people don't like Wikipedia, but the Politburo is an interesting comparison:
In Marxist-Leninist states, the party is seen as "the vanguard of the people" and therefore usually has the power to control the state, and the non-state party officials in the politburo generally hold extreme power.
...
In the Soviet Union for example, the General Secretary of the Communist Party did not necessarily hold a state office like president or prime minister to effectively control the system of government.
I'm reminded of Karl Rove here. As far as I know, Cheney doesn't care much about democracy-- he even put forth the notion that his office was off limits for investigation. The supreme court, not the people, put Bush in the white house in 2000 and about 2004, UsaToday wrote:
Robert F. Kennedy Jr., weighs in with an article in Rolling Stone magazine that's certain to generate a bonfire of partisan heat. The headline: "Was the 2004 Election Stolen? Republicans prevented more than 350,000 voters in Ohio from casting ballots or having their votes counted -- enough to have put John Kerry in the White House."
and there's lots of other stuff out there about Ohio.... read greg palast.
communism doesn't rule out authoritarian dictators, that's why I think it fell-- centralized planning became too corrupted. with bush's signing statements and cheney's disregard for transparency, I see parallels to the negative aspects of communism.
To boldly go...
September 11, 2007 1:44 PM | Reply | Permalink
It seems to me that 'precedent' or whatever is not actually the determining factor. Power being the wielding of opinion that outweighs the others, the Constitution overtly allows power concentration according to the situation the country finds itself in.
In wartime, the Presidency is dominant. In peacetime, power devolves to Congress and lower down the pyramid. In periods intermediate between war and peace, Congress and the Presidency compete for domination. In periods of great social evolution/upheaval/change, domestic policy power concentrates in the Supreme Court.
Right now we're in the end stages of a sub-violent domestic civil war about social Modernity, in which painful major domestic policy decisions were mostly pushed over to the Supreme Court. But Chief Justice Roberts has, probably correctly, decided that the conflict is in fact decided and is drastically reducing the Court's engagement and power relative to the Rehnquist Court.
We're also in the end stages of a residual flareup of remnants of the Cold War, in which the Cold War's excessive power concentration in the Presidency was recapitulated. Yet most of the power the Bush/Cheney Presidency accrued in the name of attaining victory over Al Qaeda and in Iraq has neither served to actually attain victory nor has it been necessary or important in staving off defeat. It is unnecessary, thus misused or unused, power. And misused, unused, or wasted power gets taken away in a hurry- though it usually takes exposure, campaigns, and elections for the big ceremonial ritual of excoriation, exorcism, and abjuring the abuses and waste to occur.
The Bush/Cheney Presidency and its excess powers are built on the fact of continuing warfare. End the war(s), and power reverts to Congress and The People.
September 11, 2007 2:07 PM | Reply | Permalink
"End the war(s), and power reverts to Congress and The People."Which is why Cheney/Bush want an endless "war on terror".
September 11, 2007 2:24 PM | Reply | Permalink
Excellent posts, and I look forward to reading your book. Two questions for you, Mr. Savage:
(1) Do you see any way to reverse the "ratcheting" effect of these recent moves to strengthen the executive. For example, would impeachment of the current occupant do anything to roll back the tide? Or would it be only a temporary reduction, as in the aftermath of Nixon's Watergate? If not impeachment, is there some other means?
(2) Are you persuaded at all by those who argue that Cheney's plan includes two parts -- the stronger executive, *and* some means to ensure a permanent Republican majority (or, at least, occupancy of the White House)? Have you considered the question of whether the fix is in, and the possibility that another Republican (puppet) administration will be the result of the 2008 election, despite all current indications to the contrary?
Just wondering. Thanks!
-- ARG
September 11, 2007 2:55 PM | Reply | Permalink
In 2000, I voted for the Chimp King because I feared Al Gore would continue Bill Clinton's tendency to act unilaterally, as he had often in the West in declaring large swaths of land off limits to any sort of consumptive use. Gore confirmed this when he came to Washington state a few months before the elections to announce the White House was putting its fence around the entire Hanford Reach area. As a Westerner, I saw this as a very heavy-handed statement of disregard, even contempt, for people who make their living from the land, who are many out here. I trusted in the purported conservative value of smaller government and pulled the lever for Junior.
Boy, would I regret that!
Mr. Savage makes an important point that while the executive branch power grab is now at its most virulent, it has happened in administrations of both parties. simply electing a Democratic president in 2008 will not solve the problem. Only an institutional fix -- a constitutional fix -- will prevent future presidents from behaving like George IV III. This fix must do the following:
- Explicitly state that the President, Vice President, and all members and employees of and contractors to the executive branch, as well as those of and to the legislative and judicial branches, are subject to all duly created laws, including properly ratified treaties.
- Define signing statements as legally null,
- Clarify Congress' war powers along the lines of the War Powers Resolution, and
- Make the Great Writ of Habeas Corpus inviolable. Period.
This is not up to the Congress, the President, or the courts. It is up to their bosses, the people.
"L'etat, c'est moi!" - George W. Bush
"Segregation today! Segregation tomorrow! Segregation forever!" - The John Roberts Supreme Court in Parents Involved v. Seattle School District, 2007
September 11, 2007 3:27 PM | Reply | Permalink
Re: Will the Cheney Project outlive the Bush-Cheney administration?
Well, yes and no. Some specifics are bound to rolled back by court decisions or acts of Congress. Others will simply be ignored by presidents who have no desire to use that particular power and so they will fall into abeyance. But of course some aspects of the Bush power-grab probably will survive, most likely those which fly below the radar and do not outrage any significant segment of either the public or the governing class itself.
Re: Under the Cheney-Addington approach, the President and his Administration are free to ignore any court decisions, including Supreme Court decisions, with which they disagree
Maybe, but will future presidenst dare that gambit, knowing it could lead to political ruin? Andrew Jackson pulled a number like that back in the 1830s but no one followed his example. If Bush leaves office (as seems likely) deeply unpopular and widely hated who would want to repeat that sort of presidency? Morever, if some future Democratic president tries to pull that off, expect the Right to suddenly rediscover the wonders of judicial review.
Re: I think that the government "has legalized spying" to ensure that alternative voices and choices can be oppressed.
Oppressed how? One notes that this blog continues in operation, as do quite a few far more leftist ones. There's no evidence of any suppression of contrary politcal opinion. Moreover the government doesn't have to spy to discover contrary opinions; they can read them (in The Nation, Mother Jones, in innumerbale blogs) quite openly and freely.
Re: First was Marius
Relax. We haven't even made it to the Gracchi yet.
Re: Once a new power has been introduced, we can be sure it will be exercised again
Which is why Habeas Corpus was suspended permanently in 1861 and why we are interning Arab Americans in Kansas, just as we did Russian and Chinese Americans in the Cold War.
September 11, 2007 3:49 PM | Reply | Permalink
The writers of the Constitution foresaw this type of problem and provided a remedy. Unfortunately, they made the remedy optional instead of mandatory. So, one way out of this mess, which will otherwise eventually result in a dictatorial form of government, is an amendment to the Constitution, making that remedy mandatory. It would only take a few words, for example: "The President, Vice President and all civil Officers of the United States, shall will be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." And: "To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;(new) To impeach the President, vice President and all other members of the Executive branch, and that power must be exercised every time there is credible evidence that one of those individuals has failed to defend the Constitution in all of its parts."
Hoppy in Sacramento
September 11, 2007 3:50 PM | Reply | Permalink
I don't share Goldsmith's faith that there will be a backlash strong enough to undo the damage that has been done. To me it seems that the only way to nullify the precedents set by this administration is through impeachment.
September 11, 2007 5:32 PM | Reply | Permalink
Yes, the people have to weigh in. Their representatives are Congress. If it does not act, precedent accrues like rust on a tightened bolt.
The Constitution already states that everyone is subject to law.
FISA already stated it was the exclusive avenue to legal surveillance.
Congress has to assert itself, again. It predates the Constitution, after all.
September 11, 2007 5:53 PM | Reply | Permalink
In the so massively unlikely as to be entirely hypothetical situation that a Dem Prez does something along the lines of, say, the Military Commissions Act, for those interned at Gitmo, the Supreme Court, as currently composed, is most certainly going along with it. There's no GOP/Dem line there. Just justices who favor max central power vs. those who do not.
September 11, 2007 6:26 PM | Reply | Permalink
The post has a real concern, but I worry about putting rhetoric and alarm in favor of substance. American government textbooks will always point out that our legislature has more power than in comparable systems, like the U.K., and I like it that way. And sure, that difference is slowly eroding, especially when it comes to war powers. But the next president as Cheney's vision? Calm down, for goodness sake.
First, the administration's whole way of avoiding impeachment has been to take its case to the courts. (See, we didn't know until, oh, 2008.) And they've been slammed every time. Second, every Democrat has to run now against such policies. They talk about shutting down Guantanamo, etc. Third, the GOP-media connivance would never let this stand if a Democrat were president. And finally, what indication is there that each president really would even if it were possible to continue on a course of expanding powers? Clinton surely skirted the law in the Balkans, although I'd count that among the least of a president's usurpations, pitiful compared to Iran-Contra or Iraq, and maybe even a good outcome.
I'm ticked off at the erosion of the constitution, but let's try to stay in the reality-based community anyhow.
John
http://www.haberarts.com/
September 11, 2007 6:37 PM | Reply | Permalink
I agree, a precedent has been set and it's not going away under a Democratic President. Forget about who is more "virtuous", it has to do with power and a Democratic president would attempt to use Bush precedents if it serves his/her purposes. A Democrat we hope would be much smoother than Bush and his eminence grise Cheney and who are well known for their bullying arrogance and stupidity.
I don't think the American public is sick enough of Bush to support the post-Watergate type reforms. Americans were political "innocents" during Watergate and there was real moral outrage. People now are more cynical and unless we have riveting Congressional hearings that produce big smoking guns, Bush will only get chewed up by the historians in the future.
September 11, 2007 6:49 PM | Reply | Permalink
I think the founders created a system that was based on human nature. If abuses of power are not deterred they grow. FISA was created because Nixon was spying on his evil enemies like John Lennon. Well, Johnson allowed Hoover to spy on activists, too. The same pressures from a powerful elite are felt by all administrations. A corrupted WH may have a principled occupant or two or three, but eventually, it will degenerate.
Also, The War on Terror is driving the abuses and what candidate is talking about ending the WOT as it is? Is a new president going to immediately free or try those people who are being illegally held and tortured around the world? Forget about abusing powers, will a new president restore the rule of law and respect for constitutional limits? If so, how?
And America stands for the rule of law. Every incremental infringement that is allowed to stand with impunity contributes to a further degradation of the country. A recent World Bank study proposed that 80% of a first world country’s wealth does not consist of natural resources and goods and technology but is made up of intangibles like higher skills and education of workers. The bulk of that intangible wealth derives from its institutions and the rule of law. This is what separates societies like the US or Switzerland from the Congo or Somalia. Even more than other countries, the rule of law is a source of our wealth and chipping away at it will bankrupt us eventually.
September 11, 2007 7:53 PM | Reply | Permalink
BTW Yoo is Prof at UC Berkeley now ...
September 11, 2007 7:54 PM | Reply | Permalink
May I recommend Geoffrey Stone's book on freedoms and liberties in wartime? His thesis is basically that our gov't overreaches in times of war/crisis and then everyone comes to regret it and either the Prezzy or Congress or the S.Ct undoes it afterward. The next time, we have learned a little bit, so we overreact in a slightly different way, usually in a slightly less extreme way.
i.e. early days of the Republic Alien and Sedition Acts then suspension of habeas corpus during Civil War, then Red Scare stuff in early 20th c. then WWII internment then Red Scare stuff in mid 20th c. Now Bush/GWOT. Already screwed the pooch in terms of what they can do w/r/t the Supreme Court. Say what you will, losing before the S.Ct makes it a lot harder to do something clearly contrary to that decision, esp. if there is any remote possibility of anyone finding out.
You don't think future Prezzies won't learn a lesson from the Bush/Cheney fiasco? These egos don't run for Prez to be judged Worst Prez Ever during their second term. He only sez history will judge to cover up all the tears. Deep down, he knows how history will judge.
September 11, 2007 8:01 PM | Reply | Permalink
Part of the problem is, also, obviously, the absolute abdication of any role whatsoever in terms of making a determination of constitutionality by Congress before passing legislation, particularly by the GOP Congress of the last 10 years. Also true of the last 4 presidents in some respects.
Since Congress insists on passing blatantly unconstitutional laws in some respects, and since the modern legislative process is a such a massive sausage grinder, it makes sense to a certain extent to not throw the baby out with the bath water in terms of not vetoing an entire bill to excise one small, likely unconstitutional piece.
Unfortunately, the S.Ct can't issue an advisory opinion to the President to say whether an interpretation is correct, and the blatantly ridiculous Political Question doctrine prevents good decisions on these issues. Also, as Goldsmith shows, pick a schmuck for the OLC, and everything falls apart and lawlessness rules.
September 11, 2007 8:06 PM | Reply | Permalink
Also, the Clinton example seems to me to be a bad example, as it appears he was trying to do what I suggest above, i.e. avoid vetoing an entire massive and complicated piece of legislation over one tiny, albeit likely unconstitutional, detail.
September 11, 2007 8:13 PM | Reply | Permalink
Not only her love of secrecy, her love of POWER!
The only bright side is watching Bush, the dumber, grind his teeth at the prospect of Hillary using the tools that his puppet-masters engineered.
September 11, 2007 8:49 PM | Reply | Permalink
Quoting:
A recent World Bank study proposed that 80% of a first world country’s wealth does not consist of natural resources and goods and technology but is made up of intangibles like higher skills and education of workers.
To quote an increasingly popular response:
"From your keyboard to God's monitor"
I also include as a contributor to a nation's wealth:
"Trust that one's work is rewarded with a reasonable expectation of financial survival" -- A sine qua non for the real engines of a nation's wealth production: creativity, production and enough sense of safety to avoid distractions that attend dangerous living conditions.
September 11, 2007 9:48 PM | Reply | Permalink
Hi Charlie and Cafe-ers. I wrote about the significane of what Charlie is up to her for press coverage of the Bush White House. See PressThink, The Master Narrative that Went Missing During the Bush Years Turns Up in Charlie Savage's Book.
September 12, 2007 4:47 AM | Reply | Permalink
I still hold out hope that the damage can be undone. It would take the D's controlling the Executive and Congress after the '08 elections and passing specific legislation to reassert their constitutionally mandated powers. Would a Democratic President sign that legislation? That is the $64,000 question. I think the chances of this scenario playing out are slim though. Once power becomes institutionalized it is unlikely that power will be relinquished. So for the foreseeable future the American people have to hope for benevolence from whoever (the choices only being at the discretion of the 2 parties and their financial puppet masters) the reigning King or Queen might be. I wonder what the Founders would say of the 21st Century version of their Great Experiment? A non-transparent government, closed off from the people, run by a permanent ruling class. I am waiting for Peerage to be introduced in the US.
My home when I am not ranting here...
September 12, 2007 6:15 AM | Reply | Permalink
"...reigning King or Queen..." Some renowned, ancient thinkers suggested that a country ruled by a Benevolent Dictator was probably the best of all possible worlds.
In our present candidates running for the presidency, is there such an animal? Benevolent - kind, charitable, sympathetic, generous, humane, philanthropic... Substitute 'dictator' for 'dictate'(the noun) - directive, rule, order, direction, command, mandate, law, bidding, dictum, requirement.
Given the extraordinary powers bequeathed by past presidents, and past precedents, and the pernicious narcissism inherent in probably anyone running for president today, a Benevolent Dictator sounds pretty good. Gives me something to look for in today's line-up of candidates.
September 12, 2007 8:45 AM | Reply | Permalink
WestofLeft
http://mysite.verizon.net/res7qkq0/assordidcommentary/
mcs,It is probably so that the authoritarian aspects of communist rule as it manifested in the Twentieth resemble authoritarianism as it appears in fascism. However, it is only because authoritarianism when used to preserve an odious government looks the same pretty much.
What we are looking at now is: government seizing powers which are unconstitutional, and in fact against all principles of freedom that underlie our constitution; government and capitalism walking hand in hand as industry misuses the powers of government for its own fiscal gain, and government permits it. In short. There is more to the story, but this is what I would call the rough spots.
September 12, 2007 11:04 AM | Reply | Permalink
Agreed, but even if the Supreme Court denies the Dem Prez a particular power, that decision is likely the ultimate decision on the issue, and future Dem AND GOP administrations will, ordinarily, be required to follow that precedent.
September 12, 2007 11:59 AM | Reply | Permalink
Personally, I think this line of thought misunderestimates the depth of the Unitary Executive Theory as implemented by Cheney, Addington, Yoo, and (I suspect) Norquist. Future Republican presidents will simply act as Cheney, Bush, and Addington have; future Congresses and media will require Democratic Presidents to act in the traditional constrained manner. It is a ratchet to the benefit of Republicans and it will not apply to Democrats.
sPh
September 12, 2007 12:09 PM | Reply | Permalink
No doubt, precident is extremely important in our system. Furthermore it's said, we are a nation of laws, not men. I've always thought this cliche overlooks the fact that it is only by the will of men that the laws are adhered to and enforced.
It has taken an extremely hard-headed and ignorant administration to push us to the point where we are abusing the constitution in multiple ways daily. It's also taken the co-operation of congress. That co-operation has been won by intimidation, but it has nonetheless been gained. (And, I'd allow there are other ingredients in this perfect storm of wreckless and arrogant government.)
Should 1/09 find a Democratic majority firmly in power, they will find themseleves confronted by a hard-assed minority that will not be pushed around, one that is willing to engage in destructive games of chicken to make sure they are not.
It would be an interesting time. But, it would not be a time of an inordinantly powerful unitary executive. We have seen the Democrats of today. They are neither hard-assed enough, wreckless enough, nor as deferrential to the authorities within their own party as Republicans are. It seems to me, the next Democratic president would only be able to make limited use of the expanded power born in our present.
For the most part, today's dangerous precidents will lie buried like old bombs awaiting the confluence of just the right conditions to go off.
The danger lies in those conditions returning where a ruthless administration could use these illegitimate precidents to again assault us, much like the insurgency in Iraq uses old explosives in their IEDs.
(Without alteration of the court, the Supremes seem like likely enablers, too.)
Kevin Russell Cook
September 13, 2007 11:05 PM | Reply | Permalink
Ah Chicago! A couple of excellent points you've made that few, very few, in the recognized media seem to think worthy of consideration.
I think it has something to do with the Republican color of the MSM. They'll grow some balls, in the event we get a Dem at 1600.
Kevin Russell Cook
September 14, 2007 9:33 AM | Reply | Permalink
Let's just pass a law that everyone must follow the law!
(But, I do so much like the part about impeaching the president. I wanted a pony for Christmas when I was nine. How about a more diverse press? Can we have that, too?)
So tough trying to quit caffine.
Kevin Russell Cook
September 14, 2007 10:00 AM | Reply | Permalink
"People now are more cynical and unless we have riveting Congressional hearings that produce big smoking guns, Bush will only get chewed up by the historians in the future." - observer
No Tuman commission or hearings in The United States of Amnesia? As for non- historians (except for Byrd that's congressional figures), we will sweep it all under the rug and forget it, until it comes back to bite us.
Notice the dominant assumtion in this thread is: we'll soon be moving on to better times. (Yeah, well, I hope.)
Kevin Russell Cook
September 14, 2007 4:52 PM | Reply | Permalink