Because I Say So

Charles Pierce of Newton, MA, a frequent commenter on Eric Alterman's Altercation blog at Media Matters, noted the importance of discerning where the Democratic candidates stand on the issue of presidential powers and the unitary executive. Referring to the recent appearance of Attorney General Mukasey on waterboarding and warrantless wiretapping, see Talking Points Memo, Piece said:

For the past couple of weeks, they've just gotten blatant about it. The administration of George W. Bush is bound by no law, bound by no precedent, bound not even by the forms of democratic self-government, let alone its actual substance, which is being used as a throw-rug in John Yoo's den these days. They will torture and the Congress can do nothing. Their powers to spy, to search, and to seize are unlimited and Congress is not remotely entitled to know even what those powers are. They can imprison without trial. They can force corporations -- and, indeed, individuals within the government -- to violate the law. They are not subject to treaties. They are not subject to oversight, nor even subpoenas. Read this swill from yesterday. Through his actions, and from the mouths of his minions, George Bush is now claiming fully the powers of a tyrant, by any reasonable definition of the term.

This is the only issue in the presidential campaign. It is the only truly existential threat to the country. Everything else -- health care, climate change, campaign finance, the deficit -- mean nothing if we fail on this fundamental issue. I don't know where the two Democratic contenders fall on this stuff -- their campaigns have been damnably vague about it -- but I know John McCain will be immeasurably worse. His anti-torture bill allowed torture. His "compromise" on judicial nominations allowed the Democrats to maintain the right to filibuster as long as they promised never to do so. . . . And, yesterday, he got up in front of the CPAC crowd that earlier had cheered every single one of the steps toward tyranny that the administration had undertaken.

I so agree with Pierce. These are issues that will determine the course of the future of our country. We have so crossed the line under the reign of Bush that I sometimes worry if we are too far gone to ever be able to go back again. It is extremely important that we know where the candidates stand on issues like this.

There is some indication on their positions. Charlie Savage of the Boston Globe did conduct an in-depth survey on the candidate's positions in December of 2007 on the issue of signing statements and other executive power issues. Savage is the reporter who won a Pulitzer for his expose on the use of signing statements, see, e.g., Cheney in Charge.

In Survey reveals candidates' views on scope of executive power, he gave the candidates a list of 12 questions related to issues of executive privilege, wiretapping, habeas corpus and others. As he summarized:

Republican John McCain says that if he is elected president, he would consider himself bound to obey treaties because they are "the law of the land." But Mitt Romney says he would consider himself free to bypass treaties if they "impinge" on his powers as commander in chief.

Democrat Hillary Clinton says "in very rare instances," she might attach a so-called signing statement to a bill reserving a right to bypass "provisions that contradict the Constitution." . . .

These contrasts are found in the answers to a Globe survey of the presidential candidates about the limits of executive power. The study is the most comprehensive effort to date to get the candidates to declare in specific terms what checks and balances they would respect, and whether they would reverse the Bush administration's legacy of expanded presidential powers.

"These are essential questions that all the candidates should answer," said Illinois Senator Barack Obama in responding to the survey. "The American people need to know where we stand on these issues before they entrust us with this responsibility - particularly at a time when our laws, our traditions, and our Constitution have been repeatedly challenged by this administration."

Frankly, no one thought to ask Bush or the other candidates in 2000, because no one (other than Nixon) had taken such extreme views on the scope presidential power before him. Yet, now that the authority of the president has expanded so significantly, it is extremely relevant going forward. As Savage notes:

Bush has bypassed laws and treaties that he said infringed on his wartime powers, expanded his right to keep information secret from Congress and the courts, centralized greater control over the government in the White House, imprisoned US citizens without charges, and used signing statements to challenge more laws than all predecessors combined.

Legal specialists say decisions by the next president - either to keep using the expanded powers Bush and Cheney developed, or to abandon their legal and political precedents - will help determine whether a stronger presidency becomes permanent.

"The sleeper issue in this campaign involves the proper scope of executive power," said Richard Epstein, a University of Chicago law professor.

Not surprisingly, the Democrats are definitely more in line with the traditional views on executive power:

[T]he . . . Democrats - Clinton, a New York senator, and Obama - were both more definitive. . . . Clinton and Obama endorsed a more restrained approach to executive power than Bush.

The Democrats said a president must obey laws and treaties that restrict surveillance and interrogation. They also said that the Constitution does not allow a president to hold US citizens without charges as "enemy combatants" - even though Bush has won court rulings upholding his right to indefinitely imprison citizens suspected of terrorist links.

There were some differences among the Democrats. For example, Clinton, a veteran of congressional investigations of her husband's administration during the 1990's, embraced a stronger view of a president's power to use executive privilege to keep information secret from Congress than some rivals.

And while all the Democrats condemned Bush's use of signing statements, Clinton, Edwards, and Obama each said that they would use them too - just less aggressively. Obama said the problem with Bush's signing statements is not the device itself, but rather that Bush has invoked legal theories that most constitutional scholars consider "dubious" when reserving his alleged right to bypass certain laws.

"No one doubts that it is appropriate to use signing statements to protect a president's constitutional prerogatives; unfortunately, the Bush administration has gone much further than that," Obama said.

Yet, I still think that follow up questions on these issues to explore their positions should occur. We need to be able to make an informed decision when selecting the candidates. For me, this may be the deciding factor between Clinton & Obama, depending on their answers to these questions.

Although, in the end, I'm not sure it will matter. If a Democrat does win the White House, to some degree, these issues will resolve. As I said in The New Normal:

On the other hand, if power does pass to the Democrats, I have no doubt that some of the worst excesses, such as all of this executive power stuff, will go the way of the Edsel. The Republicans will flip that switch instantly and will espouse policies like limited presidential powers, as they did re: filibusters and vetoes. Perhaps that will start the correction that's needed for the country.

And I don't doubt that for a minute.