Would a President Clinton Cede Powers?
The president went to war without congressional approval, kept the workings of a major policy task force secret, seized 1.7 million acres of land with the stroke of a pen and made extravagant claims of executive authority that were later struck down by the courts. His assertions of presidential rights left his critics sputtering with anger. An "unprecedented grab for new powers," one critic wrote.
That was Bill Clinton, of course, who like many presidents tried to push the boundaries of his office to accomplish his goals and counter his adversaries. Yet now his wife, Sen. Hillary Rodham Clinton (D-N.Y.), thinks the man who succeeded him, George W. Bush, went too far in claiming presidential authority and is promising to give back some of the powers he assumed should she ever sit in the Oval Office.
She made that promise this week at a rally in Denver and in an interview with a British newspaper and, unwittingly no doubt, at times seemed to echo some of the complaints once made against her husband. "I will conduct a very serious review of how the Bush-Cheney administration has grabbed power," she told the rally Tuesday. "Everywhere we look, we see that. They have ignored checks and balances, they have disregarded the separation of powers, they have this theory of the so-called unitary executive and then Vice President Cheney has a whole different theory about how he's a fourth branch of government."
Speaking with Michael Tomasky for Guardian America, the new U.S.-focused web site of the British paper, she went so far as to promise to surrender some of those powers if she becomes president. When he sounded skeptical that any president could ever actually do that, she expressed no hesitation. "Oh, absolutely," she said.
The discussion of executive power, of course, goes to the heart of the Bush presidency. In the years since the attacks of Sept. 11, 2001, he has made a concerted effort to expand the scope of presidential authority, from arguing that his power as commander in chief trumps laws against warrantless surveillance to setting up military commissions and holding detainees for years without letting them see a lawyer much less the inside of a courtroom. The debate over such unilateral assertions of power has at times divided his own administration, leading to congressional hearings and books replaying the disputes.
But Bush is hardly the first president to generously interpret his own power. Thomas Jefferson, who before office was a powerful advocate of limited central government, more than doubled the size of the country on his own with the purchase of the Louisiana territory and unilaterally sent U.S. forces to fight the Barbary pirates. Abraham Lincoln suspended habeas corpus and with no act of Congress, much less constitutional amendment, freed slaves in rebel territories through the Emancipation Proclamation. Franklin D. Roosevelt interred more than 100,000 Japanese and Japanese Americans during World War II and set up his own military commissions to try accused Nazi saboteurs, telling his attorney general that he would refuse to comply if the Supreme Court ordered him to turn over the alleged spies.
And then there was Bill Clinton. For the most part, his assertions of executive power did not reach as far as Bush's, much less Roosevelt's or Lincoln's. But there were plenty of battles over just how far he as president could go. Just as Cheney would later refuse to provide information about his energy task force, Clinton refused to allow scrutiny of Hillary Clinton's health care task force. Clinton sent troops to Bosnia and launched an air war over Kosovo without asking Congress for permission; Bush sought and received congressional resolutions authorizing him to invade both Afghanistan and Iraq. Clinton also angered critics by seizing 1.7 million acres in the West for national parks without congressional involvement in the 1996 election year.
And of course, he constantly battled his nemeses over executive privilege, claiming that a president could not be sued while in office, that Secret Service officers could not be compelled to testify about what they see while guarding a president and that aides could defy subpoenas from prosecutors investigating alleged criminal activity. The courts repeatedly rejected those as overly sweeping assertions of executive power and legal scholars have argued about whether Clinton in effect left the office less powerful by trying to reach too far.
The same argument will be held about Bush. The Supreme Court has now repeatedly scolded him for assuming powers that were not his. And the Clinton camp would argue that his assertions of authority far outstretched anything his predecessor did and with far more pernicious results. In her interview with the Guardian, Hillary Clinton made the case that past presidents who stretched during wartime only did so temporarily. "Other presidents, like Lincoln, have had to take on extraordinary powers but would later go to the Congress for either ratification or rejection," she said. "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."
Still, Hillary Clinton is an advocate of executive power. She voted for the USA Patriot Act, which expanded the authority of the executive branch to chase terrorists at the expense, in the view of critics, of civil liberties. And she has cited deference to the president in defending her vote for the 2002 resolution authorizing Bush to use force against Iraq. "I'm a strong believer in executive authority," she told her husband's former aide, George Stephanopoulos of ABC News, in December 2003, in a statement recently recollected by Michael Crowley in The New Republic. "I wish that, when my husband was president, people in Congress had been more willing to recognize presidential authority."
Even today, the Clintons have maintained the right to secrecy reminiscent of the Bushes and other presidents. The former president's library in Little Rock does not plan to make millions of pages of records related to Hillary Clinton's time as first lady public until after the 2008 election and the Clintons have rebuffed entreaties to push that process along. Similarly, the Clintons have refused to make public the names of big-moneyed contributors to the library, even if that might lead to suspicions of potential conflicts of interests.
The notion that Hillary Clinton would be the cure to the perceived abuse of executive authority by the Bush team lately has provoked a hot debate on the Internet, even before her most recent comments. "It's difficult to see Hillary Clinton voluntarily handing back all of those extra-constitutional executive powers claimed by President Bush," Radley Balko, senior editor of the libertarian magazine Reason, wrote on Foxnews.com. "Her husband's administration, for example, copiously invoked dubious 'executive privilege' claims to keep from complying with congressional subpoenas and open records requests -- claims the left now (correctly, in my view) regularly criticizes the Bush administration for invoking."
Andrew Sullivan echoed that sentiment last week on his blog on the Atlantic magazine's Web site. "You want a change from the Bush era?" he wrote. "Only pure partisans think a third term for a Clinton co-presidency would do it. Yes, it would give every partisan Democrat a thrill. But if you care about the damage done by this president to the constitutional order, don't believe for a minute that the Clintons would reverse it. They love their power."
That prompted a sharp retort on the Anonymous Liberal web site, which scoffed, saying that "the idea that she's Cheney in a pant-suit is just crazy." The blogger wrote that Sullivan's claim "is nonsense," adding that Bill "Clinton didn't push the envelope nearly as much as his predecessors, and when he did, it was usually for instrumental reasons (such as to thwart partisan investigations of him) rather than ideological reasons. ... There is no reason whatsoever to think that Hillary Clinton will adopt the Cheney/Addington/Yoo approach to executive power if she becomes president."
The debate continues. Stay tuned.
-- Peter Baker
October 25, 2007; 9:45 AM ET
Categories: A_Blog , Morning Cheat Sheet
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