The Volokh Conspiracy - Did Cheney Succeed?

Dick Cheney famously advocated strong executive authority, ruing the collapse of presidential power that he witnessed in the era of the Ford administration and the post-Watergate Congress. One of his goals as vice president was to "leave the presidency stronger than we found it." Did he?

Here's Jack Goldsmith (quoted in Newsweek article):

"The presidency has already been diminished in ways that would be hard to reverse" and may be losing its capability to fight terrorism, he says. He argues that Americans should now be "less worried about an out-of-control presidency than an enfeebled one."

And here's Jack Balkin, disagreeing:

With all respect to Jack, the pendulum hasn't even begun to swing yet. Barack Obama hasn't even taken office. It is a little early to be worried about an enfeebled Obama. Nor is this an accurate assessment of the historical trends.

Indeed, as I've written elsewhere, Obama takes office as probably the most powerful president in American history, in terms of what he can do and how he can project his power both around the world, in the economy and through the new forms of surveillance power that Congress has given him.

And that's really the point: Cheney's mistake was assuming that more power comes through unilateral action and through doing things in secret-- like torture.

But if you want a strong executive, you don't really need to act unilaterally or always in secret. All you have to do is to get Congress to bestow power upon you, which recent Congress's have been more than willing to do, in the AUMF, the Patriot Act, the Protect America Act, the FISA Amendments Act and the Military Commissions Act.

Barack Obama has the opportunity to be a very strong president, not an enfeebled one, in part because he has enormous Congressional grants of power and, given that his party controls Congress, has the opportunity to ask for even more power.

The two Jacks are talking about different things. Jack Goldsmith means the power of the president to act without the say-so of Congress; Jack Balkin means the power of the president to act (that is, to change the status quo) with the authority of Congress. Balkin also appears to believe that Congress will give President Obama whatever he wants. That view may be colored by recent events—the massive grants of power to Ex-President Bush to conduct wars on security terror and financial terror, in recent years by a Congress dominated by the opposite party. But it is not persuasive if one considers the numerous conflicts between President Bush and Congress, and indeed all the other post-Nixon presidents and Congress. "All you have to do is to get Congress to bestow power upon you" is like saying "if you don't like the people you work with, all you have to do is to get your boss to bestow power upon you to fire them."

This is not to say that Goldsmith is correct, either. In what way has the presidency been diminished? Bush is very unpopular, but his unpopularity doesn't seem to have affected people's attitudes about the office. We need to think about the issue of presidential power more carefully.

1. The constitutional scope of presidential power. Cheney and friends sought to expand the scope of presidential power—in the Goldsmithian sense of making it difficult for Congress, the courts, or other political institutions to prevent the president from doing what he wants to do. The strategy consisted of the making of broad claims about executive power, the commander-in-chief power, the appointments power, and the vesting clause, which, however, were grounded in Clinton-era and earlier precedents. Many of these claims prevailed, others did not, but in most cases—as usually happens—conflict was avoided. The Supreme Court, for example, never got around to repudiating various war powers arguments though it did (pointedly?) ignore them. Congress objected to many of the administration's assertions while avoiding an impasse by providing legislative authority for what the administration wanted or yielding.

We just don't know yet whether these assertions of executive power will have a lasting effect on the scope of the office. There are two possibilities. First, the Obama administration may end up citing Bush administration precedents—especially, one suspects, with respect to executive privilege. Even if it does not, some future administration may resurrect them. Second, the Obama administration will repudiate the Bush administration precedents and future administrations will as well. What does seem clear is that there is little public pressure, at least at the moment, to repudiate the Bush administration precedents—in contrast to the period after Watergate when the presidency, not just the president, was brought into disrepute. What is less clear is how much Congress and the courts are going to fight back and whether they have the means and motivation to cut back the powers of the presidency.

2. The willingness of the legislature to grant powers to the president. The Balkinian idea may be interpreted as a claim that Congress is increasingly willing to grant powers to the presidency. To the extent that this is the result of Obama's particular skills and advantages, it says nothing about the power of the presidency per se. But to the extent that Congress has come to realize that it can accomplish little by trying to manage the presidency, and that it can best satisfy the demands of constituents by yielding power to the presidency, it all comes to the same thing. Presidential power rises not because of a formal increase in constitutional powers but simply because Congress, as a practical matter, has become weak. The supreme irony of the last eight years is that Cheney was pushing on an open door.

However, clearly, Congress did not give Bush everything he wanted, nor did it give everything Clinton or Bush I or Reagan wanted. Perhaps Balkin thinks that these presidents asked for powers they didn't need, or the implementation of policies that weren't justified, but that is at best a contestable judgment. When Clinton ignored Congress's wishes and launched an air attack on Kosovo in 1999, he exercised Goldsmithian power, not Balkinian power. Obama is popular right now, and maybe Congress will give him all he wants. But the honeymoon will end and only then will we discover whether Cheney's agenda has met with success or failure.

	[Eric Posner, January 20, 2009 at 1:13pm] Trackbacks Did Cheney Succeed? Dick Cheney famously advocated strong executive authority, ruing the collapse of presidential power that he witnessed in the era of the Ford administration and the post-Watergate Congress. One of his goals as vice president was to "leave the presidency stronger than we found it." Did he? Here's Jack Goldsmith (quoted in Newsweek article): "The presidency has already been diminished in ways that would be hard to reverse" and may be losing its capability to fight terrorism, he says. He argues that Americans should now be "less worried about an out-of-control presidency than an enfeebled one." And here's Jack Balkin, disagreeing: With all respect to Jack, the pendulum hasn't even begun to swing yet. Barack Obama hasn't even taken office. It is a little early to be worried about an enfeebled Obama. Nor is this an accurate assessment of the historical trends. Indeed, as I've written elsewhere, Obama takes office as probably the most powerful president in American history, in terms of what he can do and how he can project his power both around the world, in the economy and through the new forms of surveillance power that Congress has given him. And that's really the point: Cheney's mistake was assuming that more power comes through unilateral action and through doing things in secret-- like torture. But if you want a strong executive, you don't really need to act unilaterally or always in secret. All you have to do is to get Congress to bestow power upon you, which recent Congress's have been more than willing to do, in the AUMF, the Patriot Act, the Protect America Act, the FISA Amendments Act and the Military Commissions Act. Barack Obama has the opportunity to be a very strong president, not an enfeebled one, in part because he has enormous Congressional grants of power and, given that his party controls Congress, has the opportunity to ask for even more power. The two Jacks are talking about different things. Jack Goldsmith means the power of the president to act without the say-so of Congress; Jack Balkin means the power of the president to act (that is, to change the status quo) with the authority of Congress. Balkin also appears to believe that Congress will give President Obama whatever he wants. That view may be colored by recent events—the massive grants of power to Ex-President Bush to conduct wars on security terror and financial terror, in recent years by a Congress dominated by the opposite party. But it is not persuasive if one considers the numerous conflicts between President Bush and Congress, and indeed all the other post-Nixon presidents and Congress. "All you have to do is to get Congress to bestow power upon you" is like saying "if you don't like the people you work with, all you have to do is to get your boss to bestow power upon you to fire them." This is not to say that Goldsmith is correct, either. In what way has the presidency been diminished? Bush is very unpopular, but his unpopularity doesn't seem to have affected people's attitudes about the office. We need to think about the issue of presidential power more carefully. 1. The constitutional scope of presidential power. Cheney and friends sought to expand the scope of presidential power—in the Goldsmithian sense of making it difficult for Congress, the courts, or other political institutions to prevent the president from doing what he wants to do. The strategy consisted of the making of broad claims about executive power, the commander-in-chief power, the appointments power, and the vesting clause, which, however, were grounded in Clinton-era and earlier precedents. Many of these claims prevailed, others did not, but in most cases—as usually happens—conflict was avoided. The Supreme Court, for example, never got around to repudiating various war powers arguments though it did (pointedly?) ignore them. Congress objected to many of the administration's assertions while avoiding an impasse by providing legislative authority for what the administration wanted or yielding. We just don't know yet whether these assertions of executive power will have a lasting effect on the scope of the office. There are two possibilities. First, the Obama administration may end up citing Bush administration precedents—especially, one suspects, with respect to executive privilege. Even if it does not, some future administration may resurrect them. Second, the Obama administration will repudiate the Bush administration precedents and future administrations will as well. What does seem clear is that there is little public pressure, at least at the moment, to repudiate the Bush administration precedents—in contrast to the period after Watergate when the presidency, not just the president, was brought into disrepute. What is less clear is how much Congress and the courts are going to fight back and whether they have the means and motivation to cut back the powers of the presidency. 2. The willingness of the legislature to grant powers to the president. The Balkinian idea may be interpreted as a claim that Congress is increasingly willing to grant powers to the presidency. To the extent that this is the result of Obama's particular skills and advantages, it says nothing about the power of the presidency per se. But to the extent that Congress has come to realize that it can accomplish little by trying to manage the presidency, and that it can best satisfy the demands of constituents by yielding power to the presidency, it all comes to the same thing. Presidential power rises not because of a formal increase in constitutional powers but simply because Congress, as a practical matter, has become weak. The supreme irony of the last eight years is that Cheney was pushing on an open door. However, clearly, Congress did not give Bush everything he wanted, nor did it give everything Clinton or Bush I or Reagan wanted. Perhaps Balkin thinks that these presidents asked for powers they didn't need, or the implementation of policies that weren't justified, but that is at best a contestable judgment. When Clinton ignored Congress's wishes and launched an air attack on Kosovo in 1999, he exercised Goldsmithian power, not Balkinian power. Obama is popular right now, and maybe Congress will give him all he wants. But the honeymoon will end and only then will we discover whether Cheney's agenda has met with success or failure.