Chapter 29: Contemporary Issues of Presidential Power

“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

–James Madison in Federalist #47

The Problem of Executive Power

The Constitution performs a delicate balancing act between empowering and constraining the presidency. It is no surprise, then, that American political history has witnessed numerous controversies about presidents exercising power. Some presidents have pushed the envelope, while others have not. However, the long-term trend is clear: over time, presidential power has increased considerably.

Executive power is always a tricky political problem. The founders were especially cognizant of what history had to teach about checking executive power. Democratic republics are fragile, as the demise of Athenian democracy and the Roman republic demonstrate. It was a long time before anything resembling popular democracy returned to the West. In 1215, King John of England—after disastrous foreign policy mistakes and domestic power abuses—was forced to accept the Magna Carta, or Great Charter. The Magna Carta limited the king’s power vis a vis the nobility and the clergy. Later, in 1649, Parliament executed Charles I. During his rule, he levied taxes without Parliament’s approval, disbanded Parliament for eleven years, forced people to loan money to the government, and sent an armed force into Parliament to arrest members. After a Commonwealth period in which Oliver Cromwell ruled a fractious England as “Lord Protector,” the monarchy was restored in 1660 when Charles II, son of Charles I, was invited to be king. A later king, James II, was forced from power in the Glorious Revolution when Anglicans feared that his son’s birth would establish a Catholic dynasty in England. Instead, they asked his Protestant daughter, Mary, and her husband, William of Orange, to rule. William and Mary were forced to accept the 1689 Bill of Rights, which guaranteed, among other things, the right not to be taxed without Parliament’s approval, the right to petition the King, the right for Protestants to bear arms for self-defense, freedom from cruel and unusual punishments, freedom from excessive bail, freedom of speech in Parliament, and guarantees of a trial before having to pay fines. This background and the American colonists’ belief that both Parliament and King George III denied to them the “rights of Englishmen” underscores our own struggles with executive power.

Informed citizens should be familiar with four key issues regarding executive power in the United States. Keep in mind that the issues are all interrelated, even though they are treated separately here.

Executive Privilege

Since the American republic’s beginning, presidents have exerted a right to executive privilege, even though this right is nowhere mentioned explicitly in the Constitution. Aside from not being in the Constitution, the problem with executive privilege is that its definition rests almost entirely on the collective judgments of courts over the years. As constitutional law professor Jonathan Shaub puts it, “the term executive privilege has no legal content. There is no law governing executive privilege.” (1) Basically, executive privilege asserts that the separation of powers built into the Constitution gives presidents a certain amount of discretion when responding to the legislative and judicial branches’ orders and information requests. (2) Specifically, presidents have argued that they are entitled to withhold from Congress, the courts, and the public certain executive branch documents and the transcripts  of deliberations within executive agencies. Executive privilege is not absolute. This is contested ground, of course, because unitary executive theory advocates would say that there should be no limits (described below). However, mainstream opinion among scholars and lawyers is that this particular presidential prerogative is limited. The consensus is that executive privilege cannot do the following:

• Protect the president when he is acting in his personal capacity.
• Shield information related to presidential decisions once they have been made.
• Hide communications related to committing a crime.
• Block information Congress requires in an impeachment proceeding.
• Protect communications that the president or his office never received.
• Provide absolute immunity to congressional subpoenas.
• Be exerted by a former president over the objections of the sitting president. (3)

George Washington was the first president to assert executive privilege, but the stakes have become more significant in recent cases. Presidents of both parties have tried to push the envelope and get around the limitations that courts have placed on executive privilege. During the Watergate scandal, President Nixon invoked executive privilege and refused to turn over White House tape recordings and written documents to special prosecutor Leon Jaworski. The Supreme Court ruled against Nixon—a decision that sealed his presidency’s fate because the tapes were damning—but it also appeared to give some credence to the executive-privilege idea. In its opinion in United States v. Nixon (1974), the Court recognized “the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties,” and that “human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision making process.”

President Bill Clinton’s administration invoked executive privilege on thirteen occasions, a record up to that time. Clinton’s special counsel Lloyd Cutler wrote a memo indicating that “Executive privilege will be asserted only after careful review demonstrates that assertion of the privilege is necessary to protect Executive Branch prerogatives,” and that “Executive privilege belongs to the President, not individual departments or agencies.” (4) Clinton asserted executive privilege on its least defensible issue—the Monica Lewinsky scandal. He used it to conceal information about their affair and how his White House personnel handled it. As with the Watergate scandal, the dispute between the White House and Congress eventually went to the courts. In this case—and relying on the precedent in United States v. Nixon (1974)—Federal Judge Norma Holloway Johnson again seemed to embrace executive privilege but ruled against the president on the merits of that particular case. (5)

President George W. Bush invoked executive privilege six times. His administration asserted executive privilege on various issues such as energy policy, Pat Tillman’s death, firing federal prosecutors, and allegedly misusing organized crime informants. Barack Obama invoked executive privilege one time to prevent Congress from having access to certain documents related to Operation Fast and Furious, which was a weapons-trafficking sting that was poorly conceived and poorly executed. Federal agents lost track of many weapons that they sold to suspected Mexican gun traffickers. (6) Republicans in Congress held Obama’s Attorney General, Eric Holder, in contempt for refusing to turn over documents, but the Obama administration successfully ran out the clock and withheld the documents throughout Obama’s term.

President Donald Trump exerted executive privilege over releasing the full Mueller Report regarding Russian ties to Trump’s 2016 campaign and to Trump’s attempts to obstruct investigating those ties. Trump then attempted to completely deny Congress’ ability to investigate anything having to do with his administration. He would not allow the IRS to turn over his tax returns to a congressional committee even though a federal law explicitly says the IRS “shall” do so upon request, and then he would not let the IRS director or the Treasury Secretary testify to Congress about the issue. When the issue of Trump’s taxes was litigated in New York state, his lawyers asserted what the prosecutor in the case described as “blanket immunity” from “any routine, lawful grand jury request for information.” (7) Note that President Trump’s tax returns were not made public until two years after he left office. Trump also exerted executive privilege over documents related to his administration’s attempt to add a citizenship question to the full census. When the House began impeachment proceedings against Trump for bribery, abuse of office, and obstruction of justice, Trump refused to allow key figures like Chief of Staff Mulvaney, Attorney General Barr, and Vice President Pence to testify. After encouraging his supporters to march on the Capitol and “fight like hell” to keep him in office after he lost the 2020 election, Trump attempted unsuccessfully to use executive privilege to keep records of his attempt to overturn the election from Congressional investigators. In Trump v. Thompson (2022), the Supreme Court ruled 8-1 that Trump could not exert executive privilege to shield the relevant documents.

Unitary Executive Theory

Republican administration members and their supporters have been the strongest proponents of what is known as the unitary executive theory. This theory has been circulating among conservative legal scholars for years, but it finally reached the public consciousness when it became known that George W. Bush had relied on this theory to authorize the National Security Agency to wiretap phone calls in the United States without a warrant as required by the Foreign Intelligence Surveillance Act. Even before that, however, the Bush administration relied on the unitary executive theory in its War on Terror. Bush and his defenders asserted that the unitary executive idea allowed the executive branch to hold what it called “enemy combatants” in a state of legal limbo where they were not criminal defendants, nor prisoners of war, nor covered by the Geneva Convention, nor able to talk with lawyers, nor able to see any of the evidence against them. (8)

The unitary executive theory argues that the White House’s occupant has broad inherent powers that are implied by the Constitution’s executive authority vestment with the presidency. The president, these theorists argue, can act without legislative authorization and is virtually without check in the realm of national security. The theory also holds that the president can go beyond merely executing the law, and execute it as they interpret it. Here, the issue concerns presidential signing statements, written statements that presidents have issued when they sign a bill into law. They aren’t new, but President George W. Bush used them extensively and wrote them in ways that suggest great latitude in enforcing the law. In the country’s history up through the Clinton administration, all presidents combined issued a total of 322 signing statements. President Bush issued 435 of them in his first term alone. (9) For example Congress, spurred on by Republican Senator John McCain, passed the McCain Anti-Torture Law to push back against the executive branch’s excesses during the War on Terror. President Bush signed the bill, but issued the following signing statement:

 “The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President…of protecting the American people from further terrorist attacks.” (10)

It is not yet clear what kind of credence the Supreme Court will give to signing statements when it comes time to interpret the laws. If the Constitution requires that the president “shall take care that the laws be faithfully executed,” and if the Supreme Court allows the president to “construe” the very laws he is supposed to be enforcing, it brings into question whether the president would become more like a monarch than the leader of a democratic republic. In any case, it would further shift the balance of power away from Congress and toward the president. A 2006 report by the American Bar Association condemned Bush for abusing signing statements, saying that it was “contrary to the rule of law and our constitutional system of separation of powers.” (11)

Candidate Obama roundly criticized President Bush for abusing signing statements. President Obama did not issue nearly as many signing statements as his predecessor, but even those remained controversial. The American Bar Association was sufficiently concerned with Obama’s signing statements that it issued a public letter “restating its objection to the practice and urging him to instead veto bills if he thinks sections are unconstitutional.” (12) President Donald Trump continued with the practice of issuing signing statements—most famously indicating that he considered numerous provisions of the National Defense Authorization Act unconstitutional infringements on his executive authority. (13)

The unitary executive theory has important implications for the rule of law in the United States. The rule of law refers to the related ideas that no one is above the law, that all of us are equally subject to the laws that we collectively make together, and that decisions are reached by following pre-established procedures. During Donald Trump’s presidency, the president and his Attorney General William Barr, acted together to ensure that the law fell lightly on the president’s friends and heavily on the president’s detractors. (14)

The National Security State

Much of the growth in the president’s power can be attributed to what scholars and critics refer to as the rise of the national security state. This concept suggests that the exigencies of protecting the United States from real or imagined external enemies inflates the power of the military, the intelligence agencies, and the internal security agencies—all of which are directed by the president. The founders feared this sort of development because it inevitably eroded democracy and the civil liberties they cherished, and they continually warned against a large standing army in peacetime. James Madison wrote to Thomas Jefferson in 1798 that “perhaps it is a universal truth that the loss of liberty at home is to be charged to provisions against danger, real or pretend, from abroad.” (15)

World War II was clearly a watershed event in expanding the United States’ national security apparatus. Before that conflict, the country’s peacetime armed forces were relatively small—in 1896, there were only 41,680 active-duty military personnel. Indeed, on the eve of World War I, Belgium’s tiny army was larger than the United States Army. Since 1945, however, the United States armed forces have never comprised fewer than 1.3 million people and have often included more than twice that figure, which doesn’t count reservists and guardsmen. During World War II, the Pentagon—still the largest office building in the world—was created to coordinate military efforts against the axis powers. It has become the national security state’s focal point. (16) The United States spending priorities shifted to favor military spending after World War II when the Cold War standoff between the U.S. and the Soviet Union consumed our foreign policy. During the Cold War (1948-1991), the United States spent tens of trillions of inflation-adjusted dollars on its military. If we had spent only half that much on the military, we could have funded numerous domestic policy priorities. (17) Military spending goes through cycles of ups and downs, but always at a very high level. The United States spends about the same on its military as the other top twenty countries combined, many of which are U.S. allies. The United States and its allies spend approximately six times more on their armed forces than Russia, China, Sudan, Cuba, Libya, North Korea, Iraq, Syria, and Iran all together. (18)

In 1947 the National Security Act passed, which consolidated the Department of War and the Navy Department into the Department of Defense—notice the rhetorical shift from War to Defense—it’s easier to support large expenditures year after year for “defense” rather than “war.” The Act created the National Security Council to advise the president on foreign affairs and security. The Act also created the Central Intelligence Agency (CIA), which was designed to gather intelligence and engage in covert operations around the world. Over the years, the CIA has led or participated in overthrowing foreign leaders and unsuccessfully attempting to overthrow others; the CIA has experimented with mind-altering drugs on Americans and illegally spied on Americans. Later, the United States established the National Security Agency (NSA), which is charged with gathering information from electronic intercepts and satellite imagery.

In his famous 1961 farewell address, President Dwight Eisenhower—who spent his career in the military before becoming president—warned against the power of what he called the military-industrial complex. It is worth quoting him at length:

This conjunction of an immense military establishment and a large arms industry is new in the American experience. The total influence – economic, political, even spiritual – is felt in every city, every Statehouse, every office of the Federal government. We recognize the imperative need for this development. Yet we must not fail to comprehend its grave implications. Our toil, resources and livelihood are all involved; so is the very structure of our society.

In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex. The potential for the disastrous rise of misplaced power exists and will persist. (19)

This is no less true today, say critics of the national security state, because of the War on Terror declared by President George W. Bush following the events of September 11, 2001. Spending on the military and other security operations increased, intelligence and law enforcement operations of the CIA, the NSA, and the FBI became more aggressive, and President Bush asserted broad executive authority in the name of national security.

President Obama continued to do so by expanding the U.S. presence in Afghanistan and ramping up drone attacks and raids in neighboring Pakistan. Eric Holder, Obama’s Attorney General, said in 2013 that in some “extraordinary circumstances” his opinion was that the president would be legally allowed to direct a drone strike on American citizens on U.S. soil. Presumably, the permitted circumstances would be if said Americans were about to carry out a terrorist attack. (20) President Trump and a compliant Congress increased military spending by hundreds of billions of dollars per year. (21)

Imperial Presidency

In his classic book, The Imperial Presidency, Arthur Schlesinger, Jr., warned that the growth of presidential power—particularly in response to national security concerns—threatened to warp the country’s constitutional fabric. The book was especially timely given the Nixon administration’s abuses, but its theme has continued to resonate to the present. Gene Healy of the Cato Institute condemned William Clinton’s presidency saying that he “has adopted a view of his executive power that is positively Nixonian in its breadth and audacity,” and that “the imperial presidency is as unconstrained and as menacing as it has been at any time since the Vietnam War.” (22) The presidencies of George Bush and Barack Obama have also been condemned from the left and the right for their imperial character, and the president appears in case after case to act outside of—or at the margins of—the rule of law. When such actions are revealed in the media, the administration goes on a public relations blitz justifying its actions as necessary and thereby undercutting the political will of Congress to stand up. Writing in Newsweek, Jonathan Alter feared that because of the Bush years manifesting the imperial presidency, “we are in danger of scrapping our checks and balances—not just for a few years as was done during the Civil War, but for good.” (23) During the Trump administration—with its seizure of money and diverting it to build a wall against Congress’ wishes and his use of his office to attack his political rivals, Attorney General William Barr was such an advocate for the unified executive theory and the imperial presidency that even conservative commentators recoiled at the notion of an unfettered chief executive. (24)

What if . . . ?

Can you articulate a one-paragraph vision for the president’s proper role in the American republic? In other words, if you could define for the country, what would be the presidential role when it comes to enforcing laws passed by Congress and signed by the president? What should and should not the president be doing? What amount of discretion and leeway should she have?

References

1. Jonathan Shaub, “Executive Privilege is Lawless,” The Atlantic. January 20, 2022.
2. Michael C. Dorf, “A Brief History of Executive Privilege, From George Washington Through Dick Cheney,” Findlaw Legal News and Commentary. February 6, 2002.
3. Katrina Mulligan and Aminata Diallo, “Executive Privilege is Far From Absolute,” . October 16, 2019. Jonathan Shaub, “Executive Privilege Should Have No Power When It Comes to Impeachment,” The Atlantic. November 15, 2019.  Center for American Progress. October 16, 2019. Jonathan Shaub, “Executive Privilege Should Have No Power When It Comes to Impeachment,” The Atlantic. November 15, 2019. Trump v. Thompson (2022).
4. Quoted in Mark J. Rozell, “Something to Hide: Clinton’s Misuse of Executive Privilege,” PS: Political Science and Politics, 32(3). September, 1999, pp. 550-553.
5. David Willman and Tom Schultz, “Judge Blocks Clinton Use of Executive Privilege,” Los Angeles Times. May 6, 1998.
6. Conor Friedersdorf, “Obama Discovers the Convenience of Executive Privilege,” The Atlantic. June 21, 2012.
7. Adam Kasfeld, “No Tax Return Privilege or Blanket Immunity, DA Tells Trump,” Courthousenews.com. September 23, 2019.
8. The Supreme Court eventually moved to require that enemy combatants have access to lawyers and be covered by parts of the Geneva Convention. The Court mandated in the summer of 2006 that the Congress needed to authorize whatever legal proceedings used in the disposition of the enemy combatants. Congress did so in September of that year, giving further power to the President to define enemy combatants and suspend habeus corpus.
9. Jennifer Van Bergen, “The Unitary Executive: Is the Doctrine Behind the Bush Presidency Consistent with a Democratic State?” Findlaw Legal News and Commentary. January 9, 2006.
10. President’s Statement on Signing of H. R. 2863, the “Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006,” as posted on www.whitehouse.gov.
11. Robert Pear, “Legal Group Says Bush Undermines Law by Ignoring Select Parts of Bills,” New York Times. July 24, 2006. Page A12.
12. Charlie Savage, “Obama Disputes Limits on Detainee Transfers Imposed in Defense Bill,” New York Times, January 3, 2013.
13. Scott R. Anderson, “What to Make of Trump’s NDAA Signing Statement,” Lawfare. August 23, 2018.
14. Ian Millhiser, “How Justice Scalia Paved the Way for Trump’s Assault on the Rule of Law,” Vox. February 14, 2014. Savannah Behrmann and Kristine Phillips, “More Than 1,100 Ex-DOJ Employees Call for Attorney General Barr’s Resignation,” USA Today. February 16, 2020.
15. “From James Madison to Thomas Jefferson, 13 May 1798,” Founders Online, National Archives.
16. See James Carroll, House of War. The Pentagon and the Disastrous Rise of American Power. Houghton-Mifflin, 2006.
17. Scott Reimer, “Butter, Not Guns,” Common Dreams. August 24, 2018. See also the National Priorities Project.
18. John W. Schoen, “Here’s How U. S. Defense Spending Stacks Up Against the Rest of the World,” CNBC. May 2, 2017. Melvin Goodman, “The Great Cost and Myth of U. S. Defense Spending,” Counterpunch. August 30, 2019.
19. Transcript of President Dwight D. Eisenhower’s Farewell Speech, The National Archives.
20. Guy Benson, “Holder: In ‘Extraordinary’ Circumstances, the President has the Authority to Order the Killing of Americans on US Soil.” Townhall. March 6, 2013.
21. Robert Reich, “Trump Increased Military Spending by Over $200 Billion. Here’s How That Money Could be Spent,” Newsweek. June 19, 2018.
22. Gene Healy, Arrogance of Power Reborn: The Imperial Presidency and Foreign Policy in the Clinton Years. Cato Institute Policy Analysis #389.
23. Jonathan Alter, “A Power Outage on Capitol Hill,” Newsweek. January 23, 2006. Page 36.
24. Andrew Napolitano, “The Dangers of an Imperial Presidency,” Newsmax. December 27, 2019. Benjamin Parker, “William Barr’s Dangerous Affection for the Imperial Presidency,” The Bulwark. April 23, 2019.