McCain draft

John McCain

John McCain has not taken on the issue of executive power directly. In his speeches he has expressed frustration with aspects of the Bush agenda—particularly for the way the Administration has undermined congressional oversight and used signing statements. McCain opposes Bush’s torture policies on moral and strategic grounds. He has criticized the way the President neglected to get congressional authorization for domestic surveillance program. But unlike Democrats, he rarely if ever frames his opposition to these initiatives in constitutional terms.

When he does talk about distortion of constitutional democracy, he aims his sight at the judiciary. In several forums organized by the conservative Federalist Society, he argued that the greatest threat facing democratic government were activist judges, not a disproportionately powerful President or weakened Congress.

Views of executive power

McCain has spoken out against big government, but not Bush’s build-up of the executive branch. Speaking at the Federalist Society after the 2006 mid-terms, McCain argued that Republicans lost because they neglected the principle of limited government. Though he subtly criticizes his own party’s loss of its own ideals, the speech is remarkable for how it’s not about executive power.

He articulate a small government vision that would seem to include a limited executive.

[The Founders] realize[d] something important about power: if its exercise isn’t limited, it will become absolute. Because power always tries to expand. It’s a law of nature, of human nature… The solution that our Founders devised guides us to this day: limited government. Understanding the natural tendency of power to expand, the Founders designed our government to restrain it. They created a Federal government of enumerated powers, of three branches whose reach was limited by the powers of the other branches, by the powers reserved to the states, and by the rights reserved to individuals… By limiting government in these ways, the Founders attempted to assure that no one branch could dominate the others…

Then McCain told the roomful of conservatives that judicial activism posed the greatest threat to our constitutional system. “Our freedom is curtailed no less by an act of arbitrary judicial power as it is by an act of an arbitrary executive, or legislative, or state power,” he said. He’s since repeated the point several times. In a February 2008 online candidate debate by the Federalist Society, he made the same case about the dangers of judicial activism.

I believe that one of the greatest threats to our liberty and the Constitutional framework that safeguards our freedoms are willful judges who usurp the role of the people and their representatives and legislate from the bench. As President, I will nominate judges who understand that their role is to faithfully apply the law as written, not impose their opinions through judicial fiat.

His opposition to judges who “legislate from the bench” is in part a rejection of judicial restraint on executive power. He told the Federalist Society—a group that strongly supports the Bush/Cheney view of the presidency—that his “judicial appointees will understand that it is not their role to usurp the rightful functions and powers of the co-equal political branches. I will look for candidates who respect the lawmaking powers of Congress, and the powers of the President.” McCain here echoed the views of other conservatives at the Federalist Society who have held that judges lack the authority to constrain the president’s national security strategies.

His antipathy for “activist judges” does not necessarily equate to a rejection of constitutional balance of powers. In his response to the Boston Globe‘s candidate survey on executive power, McCain stated that the President should execute laws that Congress passes, no more and no less. “I think that presidents have the obligation to obey and enforce laws that are passed by Congress and signed into law by the president, no matter what the situation is,” he responded to a question about warrantless surveillance. To a follow-up question, he stated, “I don’t think the president has the right to disobey any law.”

Checks and balances

On his signature issues of torture and ethics reform, John McCain has fought for stronger congressional oversight in the face of Administration stonewalling. But he has also called for limits to congressional oversight and recognition of executive autonomy.

He has strongly criticized what he sees as Democrats’ efforts to “micromanage” the war by denying funding and re-authorization. As early as the 2002 debate over the initial Iraq invasion, McCain called for Congress to recognize that its responsibilities are limited to funding and declaring war, and the rest falls under the authority of the president.

There is a reason why the Constitution vests shared power in the president and the Congress on matters of war. But there’s also a reason why the Constitution recognizes the president of the United States as commander in chief… No resolution tying the president’s hands or limiting the president’s ability to respond to a clearly defined threat can anticipate the decisions the president will have to make in coming weeks and months with American forces deployed overseas on his orders to defend American security… That’s why there is one commander in chief, not 535 of them. Restricting the president’s flexibility to conduct military action against a threat that has been defined and identified makes the United States less capable of responding to that threat.

Though he sees a limited role for Congressional oversight in the conduct of war, McCain has also called for greater transparency and oversight as a matter of general principle. In a May 21, 2007 speech to the Oklahoma State Legislature, McCain pledged that as president he would submit to public scrutiny and avoid secrecy: “We’re going to make every aspect of government purchases and performance transparent. Information on every step of contracts and grants will be posted on the Internet in plain and simple English. We’re not going to hide anything behind accounting tricks and bureaucratic doubletalk that a linguist with a PhD in accounting couldn’t decipher.”

He calls for the administration to submit to more congressional hearings. The President’s failure to get authorization on domestic wiretapping—a security measure McCain generally supports—prompted the candidate to question the president’s legal authority. In a January 2006 Fox News broadcast, he asked of Bush’s lack of authorization, “why not come to Congress? We can sort this all out. I don’t think—I know of no member of Congress, frankly, who, if the administration came and said here’s why we need this capability, that they wouldn’t get it. And so let’s have the hearings.”

Executing the war on terror

McCain strongly opposes torture and calls for closing Guantanamo and restoring the Geneva Conventions. (Though some critics have questioned his commitment.) His position is based on both principles and strategy. In a recent major foreign policy speech at the Los Angeles World Affairs Council, he called for restoring America’s moral leadership: “America must be a model citizen if we want others to look to us as a model. How we behave at home affects how we are perceived abroad. We must fight the terrorists and at the same time defend the rights that are the foundation of our society.” He also believes torturing our enemies will come back to haunt us. In a side-swipe at the Administration, he raised this concern to the Republican Jewish Coalition on October 16, 2007:

Those who have never served in the military, they want to torture. Why is it? Why is it that we who have served in the military are so opposed to torture? Because we have an obligation to the men and women who are serving this nation, that if they fall into the hands of the enemy, that they won’t be tortured.

He agrees with the President on suspending habeas corpus for detainees and permitting warrantless surveillance. He has defended his vote to extend the President’s warrantless surveillance program by questioning the political motives of Democrats on key oversight committees. In a February 7, 2008 speech at the Conservative Political Action Committee, he called for less oversight on national security: “It is shameful and dangerous that Senate Democrats are blocking an extension of surveillance powers that enable our intelligence and law enforcement to defend our country against radical Islamic extremists.”

McCain calls for greater American cooperation in international institutions. He calls for a “league of democracies” and a stronger NATO, G-8, Kyoto protocols, and nuclear nonproliferation pacts. At the heart of his vision for greater internationalism is a belief in America’s moral role in the world. He told the Los Angeles World Affairs Council last month that we should seek support from the world community when we determine military action is necessary:

Recall the words of our founders in the Declaration of Independence, that we pay “decent respect to the opinions of mankind.” Our great power does not mean we can do whatever we want whenever we want, nor should we assume we have all the wisdom and knowledge necessary to succeed. We need to listen to the views and respect the collective will of our democratic allies. When we believe international action is necessary, whether military, economic, or diplomatic, we will try to persuade our friends that we are right. But we, in return, must be willing to be persuaded by them.

He made mostly the same argument in a speech at the Hoover Institution on May 1, 2007—with an important wrinkle: “Like all other nations, we reserve the sovereign right to defend our vital national security when and how we deem necessary.”


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