Despite having lost the popular vote in 2000, George Bush governed as though he had inherited a throne, with disdain for democratic and legal conventions. Citing the "inherent authority" of the office, he used the Justice Department as a political weapon, ordered officials to ignore inconvenient laws and treaties and, through unprecedented use of signing statements, subverted laws that he could not veto. Claiming dictatorial powers, he detained prisoners in a black limbo without hope of legal review.
Such a "runaway president" is not unprecedented in US history (more about that later), and was almost inevitable, according to Garrett Epps, Law Professor at the University of Baltimore, in a fascinating article in the current Atlantic Magazine.
http://www.theatlantic.com/doc/200901/founders-mistake
He believes that the fault for such outrageous actions lies as much with the founding fathers as with presidents who took advantage of the lax language in the Constitution describing the powers of the office of President.
Since George Washington was universally expected to take over as first president, the founding fathers gave very little apparent thought and almost no debate to the design of the office of President in the Constitution. Alexander Hamilton wanted a president to serve for life - once elected he would serve until he decided to step down at which time the Vice President would assume the office. Hamilton's first Pacificus essay forms the basis of the "unitary executive" theory that Bush/Cheney used to run amok. According to Epps in the Atlantic article:
"Hamilton seized on the first words of Article II: 'The executive power shall be vested in a President of the United States of America.' What this meant, Hamilton argued, was that Article II was 'a general grant of ... power' to the president.
Hamilton contrasted this wording with Article I, which governs Congress and which begins, 'All legislative powers herein granted shall be vested in a Congress of the United States.' Although Congress was limited to its enumerated powers, [according to Hamilton] the executive could do literally anything that the Constitution did not expressly forbid."
In other words, the powers given to Congress are ONLY those specified, while the president's powers are everything NOT specified. In 2005, John Yoo used Hamilton's argument to draft the infamous memos that Bush claimed gave him the power to authorize torture.
In the years since our founding, there have been other "runaway presidents". Again, according to Epps:
"John Tyler, who was never elected president, was the first runaway, in 1841. William Henry Harrison had served only a few weeks; after his death, the obscure Tyler governed in open defiance of the Whig Party that had put him on the ticket, pressing unpopular pro-slavery policies that helped set the stage for the Civil War.
Andrew Johnson was the next un-elected runaway. Politically, he had been an afterthought. But after Lincoln's assassination, Johnson adopted a pro-Southern Reconstruction policy. His obduracy crippled Reconstruction; in fact, we still haven't fully recovered from that crisis."
There is still debate among legal scholars whether the founders foresaw contested elections for president instead of the gentlemanly acclaim by which Washington was elected. Consequently, short of impeachment - the nuclear option - the Constitution provides no way to reign in a runaway president. Professor Epps proposes three fixes to bring the President under the control of the Constitution without unduly tying his hands. While amending the Constitution is difficult, the office of the President is its most-amended feature. And as Epps points out, "this is the moment to think of reform - the public's attention is focused on the Bush disaster, and ordinary people might be willing to look at the flaws in the office that allowed Bush to do what he did."
Epps' proposed fixes:
First, the President should be directly elected, and take over within a week. We can debate the length of the delay, but by any measure, the current eleven weeks is too long, especially if the old president is of the runaway variety.
Second, the President's powers should be more clearly defined. The Congress's power to start - and stop - wars should be specified. In Epps' words, "the duty to 'take care that the laws be faithfully executed' needs to be clarified: [that duty] is not the power to decide which laws the president wants to follow, or to rewrite new statutes in 'signing statements' after Congress has passed them; it is a duty to uphold the Constitution, valid treaties, and congressional statutes (which together, according to the Constitution, form 'the supreme law of the land')."
As further clarification, Epps proposes that if a President's party loses some minimum number of seats in Congress in an interim election, a sort of "national unity" should be formed by, for example, requiring the president to name a new cabinet, including members of both parties, to be approved by the new Congress.
Finally, the Executive Branch should be divided between two elected officials, a President and an Attorney General. The elected Attorney General would be responsible for the activities currently under the Justice Department, and be less tempted to twist interpretations to fit the President's political agenda. Meanwhile the President would retain his White House Council who would help ensure that Justice doesn't get too far afield of the President's legitimate concerns. The two legal offices would keep an eye on each other.
The US government has grown too big for a single executive, who only serves for a relatively short period. Dividing the office would provide balance. While this is the most controversial of Epps's proposals, it is not unprecedented: most state governments elect their attorney general.
Epps closes, "Our government is badly out of balance. There is a difference between executive energy and autocratic license, between leadership and authoritarianism, between the firmness of a Lincoln and the ... rigidity of a Bush."
We should all read the article.
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Comments: 13
But I quite disagree with Epps reforms. I don't think they can work. I don't think they would solve the problem and they could be far worse than the problem they seek to remedy.
Moving up the date of assuming office doesn't shorten a Presidents term it just changes when it starts and stops by a few weeks on each end. The runaway is still a runaway for the same length of time. So that change is just irrelevant. But it does drastically limit the time the new President has to assemble a Cabinet and get organized to perform as President.
The power to start and *stop* wars is already in Congress' hands. All they have to do is stop the money and the troops disengage. What good would a "declaration of a state of peace" do for our troops in combat? What would it stop? Nothing and it would be just as difficult to get passed while military conflict was going on as stopping the money.
Naming a cabinet with some members of the opposition party will also solve nothing because of the diversity in both parties. A President can always find some nominal member of the opposition who agrees to go along with whatever the President wants to do.
The division of the Executive into two parts is the act of a madman. Divided command of any bureaucracy is asking for trouble, especially if one of the two is supposed to serve as a brake on the other. The Executive would be at war with itself. The nation's interests would be ignored while the two sides fought. And if the were not battling, if they were cooperating, then your brake is gone.
The underlying problem is that the pay of the Executive Branch of our government is controlled by the Presidency. They work for the President and not for the nation. They can be punished for disobeying a rogue (runaway) President. So long as that is true, control of the President will rest largely with the wisdom of the voters in electing only Presidents who will not become runaways. It is the self restraint of the persons in the Office and not the Constitution that protects us and as Nixon and other have proven, that self restraint is not always there.
My proposed solution is detailed at
www.nopom.info
or you can read it here on Gather at Invisible Hand.
While it's true that shortening the interval won't change the total time in office, that's irrelevant. The important thing is that if a new president is elected, the nation has elected him/her. The new president needs to assume command before the old one can create new havoc or problems fester because of the lame duck effect of nobody in charge makes things worse. Why wait almost 3 months between election and assumption of command? Naming a cabinet would become part of the campaign, giving voters a good idea of how a candidate would govern.
Of course Congress can stop wars by cutting off funds. How'd that work out for us in the Iraq mess? Cutting off funds is a bad way to end a conflict. By clarifying and strengthening Congress' powers over initiating the use of military force a war is less likely to be started in the first place, but also less likely to be extended to provide political face-saving.
The Attorney General only would have power over the Justice Department. I disagree that would be the disaster you envision.
The benefit here would be in deterring the declaration of war without actually declaring it.
The problem isn't in the Constitution, it's in the temptation. It is in the control that the office of President has over the Executive Branch of government. It is in the opportunities to abuse the office because people will obey and think they are doing their jobs even when the orders are against the constitution. (Remember Andrew Jackson telling the Supreme Court to "stick it" when they made a ruling he didn't like?) Those secretaries and soldiers and other bureaucrats will enable the President to run amok just by shuffling those papers and answering the phone and so forth. They will follow those directives. They will transport those prisoners who have had no charges lodged against them to jail just because that's their job. Will they refuse to go along with what their boss tells them to do? In a few rare cases, yes. But they will be fired, replaced, and the bureaucracy will go right on abusing the powers of the Presidency.
You can't fix this problem by changing the Constitution or by making laws against it because it is already a violation of the law. You have to change the context, the situation, in which all those people act.
The excesses these proposals address are the most egregious - we elect a chief executive and should be able to presume at least a modicum of responsibility in that person.
If the Presidents of the future worry too much about how they will be judged, and their approval ratings, instead of doing what they feel is right for this country, then we will be in very serious trouble.
I believe that Obama has the potential to be a great "runaway president". His poise and demenor will balance his will in doing what is right for the people. Hopefully he will listen to the need of the world and not to Pelosi, and party ties. That is what we need.
We have to remember what is right, is not always what is liked.
Keep up the great posts!
We need to change the Constitution to prevent this from occurring in the future.
Making the Justice Department independent of the Executive branch seems consistent with the idea of checks and balances.
I do believe that there can be no question that clarifying and, to some degree, limiting modern presidential powers enhances our democracy.
The argument against reviewing the Illinois state constitution in November 2008 was that it would be too expensive, but it may cost us too much in freedom and good government not to do it.
Amending the Constitution is rightly difficult, but timing is important. Limiting the president to 2 terms came after FDR's 4 term reign and death in office. The end of Bush administration offers a moment in history for t he limits described in Epps's article.
Debra: Repairing the nation's image in the world may be easier than amending the Constitution.