As the Bush administration enters its final year, how fares its effort to remake the law for the benefit of the presidency? With the resignation of Alberto Gonzales, the withdrawal of the infamous 2002 torture memos and setbacks at the Supreme Court in the Guantánamo cases, executive supremacy no longer reigns entirely supreme. At the same time, it hasn’t been dethroned either: witness the recent revelations about further Justice Department memos that permit forms of torture, written in 2005 and still in place. And then there’s the testimony of Michael Mukasey, George W. Bush’s choice for attorney general, who surprised the Senate by unabashedly promoting the president’s authority to act outside statutory boundaries in sensitive areas like wiretapping and by refusing to renounce waterboarding. The salient question of the moment, then, is about Bush’s legal legacy. After his tenure, what will come of the changes his lawyers have wrought, especially their attempts to expand executive power?
The Return of the Imperial Presidency and the Subversion of American Democracy.
By Charlie Savage.
Illustrated. 400 pp. Little, Brown & Company. $25.99.
THE GENIUS OF AMERICA
How the Constitution Saved Our Country — and Why It Can Again.
By Eric Lane and Michael Oreskes.
296 pp. Bloomsbury. $23.95.
Two new books offer contrasting answers. Charlie Savage, the author of “Takeover,” depicts a presidency on steroids, pumped up by Vice President Dick Cheney. For decades, Savage argues, Cheney has “wanted to permanently alter the constitutional balance of American government, establishing powers that future presidents would be able to wield as well.” And because presidential power once accrued generally sticks, Cheney is likely to get his wish. In “The Genius of America,” Eric Lane and Michael Oreskes also rue the increase of presidential power at Congress’s expense. But they think our system of government can recover, if only we can remember and keep faith with the crucial accomplishments of the Constitution’s framers. Viewed through this lens, Bush’s lawyers seem smaller and their influence less enduring.
In the meantime, though, oh what fun those lawyers have had. Savage, the national legal affairs writer for The Boston Globe, charts their many exploits. The terrain is familiar from the front pages, but he has a real gift for amassing detail so as to reveal the thread that connects separate news stories. Savage is particularly good on the subject for which he won a Pulitzer Prize: presidential signing statements. By Bush’s seventh year in office, he writes, the president had signed 150 bills to which he added statements that challenged “the constitutionality of well over 1,100 separate sections in the legislation.” All the presidents who came before this one, by contrast, appended signing statements to a total of only 600 sections of law.
Savage deftly lays out the significance of this shift: Bush has used signing statements as a stealth line-item veto, and along the way explicitly augmented his own powers. For example, when Congress passed a law barring the military from using illegally collected intelligence, Bush signed it, but added a statement saying that only he could determine whether such intelligence could be used. Signing statements may be of dubious constitutionality, but they can nonetheless influence the implementation of new laws.
Where did this masterstroke of presidential primacy come from? It has an antecedent in the Reagan administration, which used signing statements to parry the legislative history created by Congress. But according to Savage, it is Cheney and his longtime aide David Addington who saw the statements’ larger potential. A former associate White House counsel, Brad Berenson, tells Savage that Addington “would dive into a 200-page bill like it was a four-course meal,” relishing the chance to advance the cause of executive power.
Addington and Cheney are so perfectly perfidious that if they didn’t exist, Savage (and a lot of other writers) would have had to invent them. This is one of many accounts of the Bush presidency that, accurately or not, treats the president himself as an aside. It’s Cheney who articulates that the Bush administration’s challenges to the laws Congress passed after Vietnam and Watergate to contain and oversee the executive branch — the Foreign Intelligence Surveillance Act, the Presidential Records Act, a strengthened Freedom of Information Act, the War Powers Resolution — are “a restoration, if you will, of the power and authority of the president.”
Cheney doesn’t necessarily have his history wrong. As Savage recognizes, long before Richard Nixon and Bush, presidents had succeeded in building themselves up while tearing down Congress. The courts tend to stay out of the fight, and Congress — fractious, sprawling, cacophonous — generally goes down. By some measures, it’s the laws Congress passed in the 1970s to push back that are the exception.
Still, Cheney has tried to elevate the presidency to heady new heights. For the genesis of his unorthodox thinking, Savage goes back to 1987. Congress had investigated the Iran-contra affair and concluded that, by flouting its ban on funding for the contras, Oliver North and his helpers exemplified “disdain for the law.” As a member of the joint House and Senate Iran-contra committee, Cheney signed up Addington and others to write an alternate report, Savage explains, which “declared that the real lawbreakers were Cheney’s fellow lawmakers, because the Constitution ‘does not permit Congress to pass a law usurping presidential power.’” At the time, this seemed merely nutty. But two years ago, when The New York Times broke the story that the National Security Agency was conducting widespread surveillance without warrants, Cheney told reporters that the president had all the power he needed to bypass the Foreign Intelligence Surveillance Act, one of his least favorite post-Watergate statutes. To explain why, he instructed the press to read his Iran-contra report. His old outlier view was now front and center.
Lane, a law professor at Hofstra, and Oreskes, the executive editor of The International Herald Tribune, also single out Cheney’s 1987 report as a prime example of executive power gone off the rails. To them it’s a link between Ronald Reagan’s message that “government is the problem” and the “institutional deterioration” of the present. Their overriding concern is that in our frustration with gridlock and long-running political battles, we’ve lost sight of the Constitution’s irreplaceable strengths. The genius of the founders was their recognition that Americans had no exceptional ability to rise above their own interests, and inevitably would splinter into factions. And so the framers hammered together a form of government built to absorb the shocks of division, by subverting pure majority rule, forcing compromise and generally gumming up the works whenever a whiff of radical change comes along.
Today, however, we’re too weary of our own strife to remember all of this. “The message we are hearing is that our government does not work,” Lane and Oreskes write. “The message we should be hearing is that our government is a reflection of our own divisions.” If Congress is supine, that’s because we’ve helped to beat it down. If we recalled the lessons of the nation’s founding, on the other hand, we’d quit looking for shortcuts and falling for imperially-minded presidents. We’d see the Bush-Cheney march of executive power for the threat that it is. And we’d put a halt to it. A rallying cry, perhaps, for the post-2008 era.