Draft post 2


The candidates frequently talk about executive power on the campaign trail, though oftentimes obliquely. Hillary Clinton and Barack Obama use the lens of the current administration to get at their views on constitutional principles; they frequently deplore the most extreme aspects of the Bush/Cheney project—torture, warrantless wiretapping, signing statements. John McCain is less likely to use Bush as a way of talking about constitutional matters. He makes the case that excessive and meddlesome oversight by other branches poses as grave a threat as overweening executive power.

Candidates’ positions on the question are shaped, not surprisingly, by their parties’ political identity. The Democrats attempt to assert national security credentials on the one hand, but a scaled-back president on the other. “We face real threats. Any President needs the latitude to confront them swiftly and surely,” Obama said in one of his first major foreign policy addresses. In a speech last June, Clinton similarly said: “I believe that the president—and I mean any president—must have the ability to pursue terrorists and defend our national security with the best technology at hand.” John McCain asserts the Republican notion of small government, but focuses criticism more on judicial activism than overweening executive power.

The political parties have no consistent view point on executive power. Republican candidates embodied polar opposites, ranging from Mitt Romney’s endorsement of the imperial presidency to Ron Paul’s vision for a dramatically reduced executive. Though Democratic candidates shared a deep distrust of the Bush/Cheney project, they were similarly scattered. Dennis Kucinich called for Bush’s impeachment, while Clinton and Obama tussled over whether Bush stole power or Congress willingly gave it away. No party has a historical claim on the issue. A decade ago, with a Democratic president and Republican legislature, the parties held opposite positions.

I reviewed dozens of speeches in which candidates offered an opinion on the nature of executive power through topics such as checks-and-balances, civil liberties, and foreign policy. Through this analysis I sought to reflect the candidates’ range of views—by no means exhaustive, but hopefully illustrative. Though they address the topic frequently, they are not offering specific steps—nor, for that matter, explicitly asserting the need—for scaling back this power beyond reining in the Bush presidency. The issue of expansion of executive power seems to be a matter of politics, not principle. The prospect of any new administration, Democrat or Republican, dramatically reversing it seems unlikely.

Hillary Clinton

Hillary Clinton envisions a strong presidency, but she believes it must be constrained by the balance of powers set forth in the Constitution. She espouses a fundamental belief in the rule of law and a conviction that Bush subjugated our constitutional system to his own partisan ambitions and ideology.

Q: What does her experience as First Lady tell us?

A: Her candidacy has been shaped by her husband’s years as president and her own as First Lady in countless ways. Her position on executive power is no exception. Take, for example, her response to Bush’s commutation of Scooter Libby’s sentence. She described the move in a July 2 speech as “elevating cronyism over the rule of law” and another indication “that this administration has no regard whatsoever for what needs to be held sacred.” But she neglected to mention Bill Clinton’s controversial pardons, and then found herself challenged on this inconsistency. Similarly, she frequently espouses the importance of transparency in government, but her infamous handling of her health care task force suggests otherwise. So while she does present a coherent rhetorical position on executive power, both hers and her husband’s record often makes this position less clear.

Q: What has she said about her husband’s use of executive power?

A: Hillary Clinton has endorsed Bill Clinton’s efforts to build a strong executive. In a 2003 interview with ABC’s George Stephanopoulos, she defended her husband’s decision to send troops to Kosovo without congressional authorization:

I’m a strong believer in giving the executive authority. I wish that when my husband was president people in the Congress had been more willing to recognize presidential authority. You recall, we didn’t get authority to go into either Bosnia or Kosovo and I think that was a mistake.

Q: If she endorses executive power in principle, where did Bush go wrong?

A: She believes Bush has consistently misused presidential authority because of his administration’s impure motives. In October 2006 she told the Council on Foreign Relations, “At the end of the day, you have to question whether this administration has led with our values or used our values as a cloak to justify its ideology and unilateralism.” The problem is a lack of transparency. At the Campaign for America’s Future conference on June 20, 2007, Clinton said that “our Constitution is being shredded… It is a stunning record of secrecy and corruption, of cronyism run amok. It is everything our founders were afraid of, everything our Constitution was designed to prevent.”

Bush operated outside of checks-and-balances when he didn’t necessarily have to (or because he had something to hide). She expounded this view in an interview with the London Guardian last October.

Other presidents, like Lincoln, have had to take on extraordinary powers but would later go to the Congress for either ratification or rejection. But when you take the view that they’re not extraordinary powers, but they’re inherent powers that reside in the office and therefore you have neither obligation to request permission nor to ask for ratification, we’re in a new territory here… There were a lot of actions which they took that were clearly beyond any power the Congress would have granted or that in my view that was inherent in the constitution. There were other actions they’ve taken which could have obtained congressional authorization but they deliberately chose not to pursue it as a matter of principle.

She reprimands Bush for snubbing the other branches in his attempt to expand his own power–not for attempting it in the first place. In a key 2006 speech on privacy and wiretapping to the American Constitution Society for Law and Policy Convention, the candidate said

If the executive needs additional authority to legitimately monitor and track terrorists, it should not just simply overlook and ignore the law. If the president feels he needs more flexibility in order to protect our security, he should engage Congress… It is a cause for deep concern that the administration did not seek changes to the FISA law to legitimize its surveillance program, but instead deliberately chose to act outside of the law.

Q: What has she said about the Office of the Vice President?

A: She argues that Vice President Cheney has attempted to operate outside of public scrutiny. In a September 17, 2007 speech to the SEIU, Clinton referenced the unprecedented expansion of powers in the Office of the Vice President as fundamentally unconstitutional.

You know, our founders, who wrote our Constitution, understood human nature. That’s why they had checks and balances. That’s why we had three different branches of government for separation of powers, at least until Vice President Cheney came along and said he was part of a heretofore never discovered fourth branch of government.

Q: What has she said about her own willingness to submit to oversight as President?

A: She believes the Constitution provides the necessary mechanism for responding to the challenges of the 21st century and that she would govern accordingly. She told the American Constitution Society that the “answer to this delicate security dilemma is neither blank checks nor blanket opposition. It is to use the judicial and legislative mechanisms we have to build a consensus about what is necessary, what is legal and what is effective.”

She calls for greater transparency to enable meaningful oversight. She underscored this point at American Federal of State, County, and Municipal Employees June 2007 Leadership Forum: “I believe in balance. I think it’s the genius of our political system: Checks and balances, separation of powers… Let’s reform this government, make it more transparent…” In November 2005, she told the American Bar Association when “we do not fear transparency into the workings of our government, when we aim to hold every part of our government accountable, then we—much more than in words, but in deeds—promote the rule of law.”

Q: What role does she see Congress playing in national security?

A: On the Senate floor prior to her vote against the Military Commissions Act, Clinton strongly denounced the administration for rail-roading the problematic legislation and the Republican majority for letting it happen. “The president acted without authority and it is our duty now to be careful in handing this president just the right amount of authority to get the job done,” she said. She sees the legislation as “giving the Bush-Cheney Administration a blank check to torture, to create secret courts using secret evidence, to detain people, including Americans, to be free of judicial oversight and accountability, to put our troops in greater danger.”

She asserts that domestic surveillance must take place within an explicit legal framework established through legislation and subject to judicial oversight. “I’m proposing that we have a new privacy bill of rights… and a new national security consensus setting out clear rules to allow the government to use new intelligence techniques within a rule-of-law framework, and making sure that the public knows its rights and the government’s limits,” she said at the American Constitution Society for Law and Policy Convention on June 17, 2006.

Q: Does she think there are limits to congressional oversight?

A: Though she calls for transparency and a clear legal framework, she also suggests that the president can operate outside this framework in extraordinary circumstances. In the same speech she elaborated on these exceptions:

We can allow for carefully defined exceptions to the warrant requirement in the immediate aftermath of war, and allowances can be made for greater flexibility — for example, warrants after the fact in cases of true emergencies… Unchecked mass surveillance without judicial review may sometimes be legal but it is dangerous. Every president should save those powers for limited critical situations. And when it comes to a regular program of searching for information that touches the privacy of ordinary Americans, those programs need to be monitored and reviewed, as set out by Congress in cooperation with the judiciary.

Q: What has she said about torture?

A: Clinton’s position on torture has changed over time. At times she has made an exception for the “ticking-time bomb” scenario. Though she has repeatedly opposed extraordinary rendition and Guatanamo, she hasn’t addressed the programs initiated during her husband’s presidency. These discrepancies have led some critics to describe her positions as more vague and less direct than her democratic rival’s.

Barack Obama

Barack Obama is outspoken in criticizing how President Bush has aggregated and used executive power, but inconsistent when discussing what he would do with that power in the Oval Office. In instances where Bush’s policies have infringed on civil liberties, Obama pledges to scale back power with greater transparency and involvement by the other branches. But he reserves the right for a president to exercise a strong hand in matters of national security. Like Clinton, he criticizes Bush’s constitutional record less for the fact that he expanded executive power, and more for why and how this expansion occurred.

Q: What claims to authority does he make?

A: He often references his earlier career as a University of Chicago constitutional law professor as a way of emphasizing his appreciation of constitutional checks-and-balances and protections of civil liberties, but he doesn’t have much of a voting record on these questions. When he broaches the topic, he asserts that it is an issue of major concern and he promises to actively take steps to scale it back. In Lancaster, PA late last month he said, “The biggest problems that we’re facing right now have to do with George Bush trying to bring more and more power into the executive branch and not go through Congress at all. And that’s what I intend to reverse when I’m president of the United States of America.”

Q: How do his views on executive power play out in national security matters?

A: In spite of this harsh language, Obama does not categorically reject the need for a strong presidency. When crititicizing Bush, he asserts the need for strong intelligence gathering mechanisms—tools that would fall within the executive branch: “We face real threats. Any President needs the latitude to confront them swiftly and surely,” he told the crowd at DePaul in October.

Q: If he endorses executive power in principle, where did Bush go wrong?

A: Bush’s great sin was not that he used an overly strong hand to protect the nation, but rather that he used it for partisan motives and with scant attention to civil liberties. To the crowd in Chicago last October, he asserted that

we’ve paid a heavy price for having a President whose priority is expanding his own power. The Constitution is treated like a nuisance. Matters of war and peace are used as political tools to bludgeon the other side… I’ll turn the page on the imperial presidency that treats national security as a partisan issue – not an American issue.

He argues that the worst excesses of the Bush Administration happened behind closed doors—executive orders that didn’t involve congressional oversight. Responding to an audience question in the speech last month in Lancaster, he defended his 2006 vote to re-authorize the Patriot Act by asserting that constitutional abuses happened through executive orders rather than misguided legislation. Bush’s secret tendencies have made our nation more vulnerable. Obama made this point at DePaul:

We get subjected to endless spin to keep our troops at war, but we don’t get to see the flag-draped coffins of our heroes coming home. We get secret task forces, secret budgeting, slanted intelligence, and the shameful smearing of people who speak out against the President’s policies… We don’t need another President who thinks big but doesn’t feel the need to tell the American people what they think. We don’t need another President who shuts the door on the American people when they make policy.

Q: What has he said about his own willingness to submit to oversight as President?

Greater transparency, he argues, is the best and only way to balance civil liberties and the expansion of executive branch functions that are necessary in the age of terrorism. In a foreign policy speech at the Woodrow Wilson Center at Princeton University in August 2007, Obama pledged to find a balance between the two.

I will provide our intelligence and law enforcement agencies with the tools they need to track and take out the terrorists without undermining our Constitution and our freedom. That means no more illegal wiretapping of American citizens; no more national security letters to spy on citizens who are not suspected of a crime; no more tracking citizens who do nothing more than protest a misguided war; no more ignoring the law when it inconvenient. That is not who we are, and it’s not what is necessary to defeat the terrorists.

He promises to “turn the page on a growing empire of classified information, and restore the balance we’ve lost between the necessarily secret and the necessity of openness in a democratic society” (DePaul, October 2, 2007). He recognizes that transparency will involve scaling back some of the powers he would inherit, but nonetheless asserts his commitment to “a new era of openness.”

[W]hen I’m president, one of the first things I’m going to do is call in my attorney general and say to him or her, “I want you to review every executive order that’s been issued by George Bush, whether it relates to warrantless wiretaps or detaining people or reading e-mails or whatever it is, I want you to go through every single one of them and if they are unconstitutional, if they’re encroaching on civil liberties unnecessarily, we are going to overturn them.

Q: What has he said about judicial review?

At a MTV/MySpace forum in October 2007, he called for “a Supreme Court that is not just giving the president a blank check for whatever executive power grab he or she is engaging in.” The courts must also play a hand in detainee prosecutions and ensuring the appropriateness of domestic surveillance.

I have faith in America’s courts, and I have faith in our JAGs. As president, I will close Guantanamo, reject the Military Commissions Act, and adhere to the Geneva Conventions. Our Constitution and our Uniform Code of Military Justice provide a framework for dealing with the terrorists… The FISA Court works. The separation of powers works. Our Constitution works. We will again set an example for the world that the law is not subject to the whims of stubborn rulers, and that justice is not arbitrary. (Woodrow Wilson Center, August 2007)

Q: What role does he see Congress playing in national security?

A: He promises as president he would hold regular meetings with Congressional leaders from both parties before taking military actions. In the DePaul speech he promised “a standing, bipartisan Consultative Group of congressional leaders on national security. I will meet with this Consultative Group every month, and consult with them before taking major military action.”

Q: Does he think there are limits to congressional oversight?

A: Defending his decision to provide the president continued funding for further Iraq operations, he told the Chicago Council on Global Affairs in November 2006, “Ultimately… the president is the commander in chief. The only way to force the president’s hand would be in some ways to restrict funding for the war effort in Iraq,” which he wouldn’t do.

He echoed this view on the limited ability of Congress to rein in the President in the foreign policy speech at DePaul. He suggested that executive power will naturally expand, and the only check on that expansion is a muscular and assertive Congress.

After Vietnam, Congress swore it would never again be duped into war, and even wrote a new law—the War Powers Act—to ensure it would not repeat its mistakes. But no law can force a Congress to stand up to the President. No law can make Senators read the intelligence that showed the President was overstating the case for war. No law can give Congress a backbone if it refuses to stand up as the co-equal branch the Constitution made it.

He promises he would accept and welcome restraints imposed by Congress. This comment raises the unanswered question what he would do if he disagreed with those restraints.

Q: What has he said about unilateralism and pre-emption?

A: Though he regularly calls for multilateralism and diplomacy, Obama doesn’t reject unilateralism in principle. “We must always reserve the right to strike unilaterally at terrorists wherever they may exist,” he told the Chicago Council on Global Affiars in November 2006. In the same speech, he raised some eyebrows when he pledged to move troops from Iraq to Pakistan to pursue Bin Laden. His critics saw the speech as both dangerously naïve and possibly even masking a hawkish agenda.

Q: What has he said about torture?

A: Obama has unambivalently pledged to close Guatanamo and cease the practices of torture and extraordinary rendition. He describes these strategies as both morally indefensible and a clear demonstration of excessive executive power. But he does call for broad counter-insurgency capabilities—with clear limits to those capabilities: “I will not hesitate to use military force to take out terrorists who pose a direct threat to America, and this requires a broader set of capabilities, as outlined in the Army and Marine Corps’ new counter-insurgency manual” (Woodrow Wilson Center, August 2007).

John McCain

John McCain has rarely 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 the domestic surveillance program. But unlike Democrats, he rarely if ever frames his opposition to these initiatives in constitutional terms.

Q: How does McCain reconcile Republicanism with the expansion of executive power in the Bush years?

A: 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 party’s loss of its core ideals, the speech is remarkable for how it’s not about executive power.

In the speech he talks about distortion of constitutional democracy but aims his sights squarely at the judiciary, not the other branches. He argued that the greatest threat facing democratic government were activist judges. “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.

Q: Does his opposition to judicial activism mean he rejects restraints on executive power?

A: In part, at least. 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.

But his position is more complicated than a simple endorsement of Bush’s view of executive power. 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.”

Q: What role does he see Congress playing in national security?

A: On his signature issues of torture and ethics reform, John McCain has fought for stronger congressional oversight in the face of Administration stonewalling. 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.”

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.

Q: What does he say about torture?

A: 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 principle 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.

Q: What has he said about civil liberties?

A: 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.”

Q: What has he said about internationalism?

A: 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.

Though he urges a more internationalist approach, he asserts America’s authority to act independently when needed. At the Hoover Institution on May 1, 2007, he said, “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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