All The President's Power, Part I

The Daily Reckoning PRESENTS: Contrary to liberal mythology, abuse of executive authority has deep roots in both parties. In part one of this two-part essay, The American Conservative magazine’s Thomas Woods, looks into the state of the union…

ALL THE PRESIDENT’S POWER, PART I

Vice President Dick Cheney recently told the Washington Post that when the Bush administration entered office, it was determined to reinvigorate the presidency and reverse the steady reduction in executive power and prerogative that had persisted since Watergate. But what reduction could the vice president have had in mind? “The vice president,” noted Sen. John E. Sununu (R-N.H.), “may be the only person I know of that believes the executive has somehow lost power over the last 30 years.”

Whether or not the vice president was correct in his analysis of the state of the presidency in the year 2000, there can be no question that since then George W. Bush has dramatically expanded the powers of the president – primarily though not exclusively in matters pertaining to the war on terror.

One of the most notorious examples involved the torture of prisoners, a power the administration claimed in the face of law and international agreements to the contrary. “The assertion in the various legal memoranda that the President can order the torture of prisoners despite statutes and treaties forbidding it was another reach for presidential hegemony,” wrote Anthony Lewis in the New York Review of Books. “The basic premise of the American constitutional system is that those who hold power are subject to the law…Bush’s lawyers seem ready to substitute something like the divine right of kings.”

Arguably the greatest controversy of all was the revelation at the end of 2005 that the Bush administration had engaged in domestic surveillance without the necessary warrants. James Bamford, author of two books on the National Security Agency, points out the pertinent aspects of what would appear to be the relevant law: the Foreign Intelligence Surveillance Act (FISA), passed in 1978. According to Bamford, then-Attorney General Griffin Bell testified before the intelligence committee that FISA acknowledged no “inherent power of the President to conduct electronic surveillance.”

As Bell himself put it, “This bill specifically states that the procedures in the bill are the exclusive means by which electronic surveillance may be conducted.”

In the wake of the Sept. 11 attacks, Bush administration officials spoke again and again of the president’s inherent powers. But the pertinent statute in this case disclaims any such powers and requires that the president proceed according to the guidelines set out by Congress, which involves securing warrants from a special court. As things stand, the president is claiming a right to engage in surveillance of any American, unrestrained by any institutional check, in the service of the war on terror – a war that by its very nature must go on indefinitely and, indeed, that we can never really know is truly over.

According to Attorney General Alberto Gonzales, the reason the administration did not seek to revise FISA to give the president the clear and unambiguous power to order these wiretaps was that even a Republican Congress would not have gone along. In a Dec. 19 press briefing, the attorney general said, “We have had discussions with Congress in the past – certain members of Congress – as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat, and we were advised that that would be difficult, if not impossible.”

The administration’s claim, as set forth by the attorney general, is that Congress implicitly agreed to such wiretaps when in the days following Sept. 11 it authorized the use of force against the perpetrators and their allies. Of course, if Congress really had authorized them, it is not clear why it would be so difficult for the administration to persuade Congress to amend FISA accordingly in light of this permission.

Gonzales’s argument calls to mind H.L. Mencken’s 1937 “Constitution for the New Deal,” a satirical rewrite of the U.S Constitution, which says of the attorney general, “It shall be his duty to provide legal opinions certifying to the constitutionality of all measures undertaken by the President.”

As the controversy over the wiretapping developed, it was only a matter of time before the “even Lincoln did it” argument would be heard. GOP apologists did not disappoint, reminding Americans that Honest Abe engaged in massive violations of civil liberties while president. But Tom DiLorenzo raises the proper reply to such claims in the form of remarks by Supreme Court Justice David Davis – a personal friend of Lincoln – in the 1866 case Ex Parte Milligan: “The constitution of the United States is a law for rulers and people, equally in war and peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government.”

As DiLorenzo suggests, if the government were to be given carte blanche during wartime, all that would be necessary to whittle away the people’s liberties would be to concoct – or to provoke – an endless series of crises.

This is all deeply disturbing, to be sure. But to hear much of the Left tell it, the presidency of George W. Bush is a bizarre aberration in the history of the presidency and more or less sui generis. I have no objection to those who describe the Bush presidency as utterly disastrous, and I do not mean to excuse the president by recalling that the ideological and institutional roots of the imperial presidency extend back at least a century. My point, rather, is that a bit of history can enrich our understanding.

President Rutherford Hayes once warned that although American chief executives had to that point been conservative men wedded both to precedent and to modesty in the exercise of presidential power, a future president committed to concentrating power in his hands could make of the office what he wished. That future president would prove to be Theodore Roosevelt, a figure loved and admired to this day by Left and Right alike.

TR did not merely extend executive prerogative here or there; he put forth a full-fledged philosophy of the presidency that attempted to justify his dramatic expansion of that office. He contended that the president, by virtue of his election by the nation as a whole, possessed a unique claim to be the representative of the entire American people – a position taken by Andrew Jackson during the 1830s and for which he was sharply rebuked by John C. Calhoun. Each member of the executive branch, but especially the president, “was a steward of the people bound actively and affirmatively to do all he could for the people.” He could, therefore, “do anything that the needs of the nation demanded” unless expressly prohibited in the Constitution. “Under this interpretation of executive power,” TR later reflected, “I did and caused to be done many things not previously done. … I did not usurp power, but I did greatly broaden the use of executive power.”

Since TR believed himself to be doing the people’s will, and since he believed his own rhetoric that portrayed the president as the people’s unique representative in American government, his need to fulfill this special mission overrode concerns about the separation of powers. He remarked privately that in the United States, “as in any nation which amounts to anything, those in the end must govern who are willing actually to do the work of governing; and in so far as the Senate becomes a merely obstructionist body it will run the risk of seeing its power pass into other hands.”

It was TR who pioneered rule by executive order as a governing style among American presidents. Many Americans rightly howled during the 1990s when Bill Clinton’s aide Paul Begala famously said of executive orders, “Stroke of the pen, law of the land. Kinda cool.” But Clinton, who once called Theodore Roosevelt his favorite Republican president, was only exercising a power that TR had made a major feature of the presidential office early in the century.

There are uses of executive orders that are unobjectionable from any standpoint. Thus it was by means of an executive order that George Washington, upon taking office as the first U.S. president, requested that the outgoing government prepare for him a report on the state of the country. A better-known example involves the presidential pardons that President Andrew Johnson issued by means of executive order to ex-Confederates following the Civil War.

There are plenty of examples of the abuse of executive orders as well. As early as 1793, the subject had already led to confrontation between Congress and the president when George Washington declared the United States neutral in the wars of the French Revolution. Congress later ratified the president’s decision, but in the absence of statutory authority or constitutional prerogative, Washington’s action, however innocuous it seems now, was viewed by some early Americans as an abuse of presidential power.

To appreciate the transformation that occurred in American government under TR, consider the number of executive orders issued by the presidents of the late 19th century. Presidents Hayes and Garfield each issued none. Arthur issued three, Grover Cleveland (first term) six, Benjamin Harrison four, Cleveland (second term) 71, and McKinley 51. TR issued 1,006.

Now, it is true that TR served nearly two terms. But that figure is so much higher than that of his predecessors that it reveals a vastly different philosophy of the presidency from that held by those who preceded him.

To take just one domestic example, TR intervened in the United Mine Workers strike in 1902, ordering the mine owners to agree to arbitration. Should they instead remain obstinate, he threatened to order the Army to take over and operate the coalmines. When informed that no constitutional authorization existed for such a brazen act of confiscation, he replied, “To hell with the Constitution when the people want coal!”

In foreign affairs, an excellent if consistently overlooked example concerns the details of Roosevelt’s decision to take over the customs houses in the Dominican Republic. In what has become known as the Roosevelt Corollary to the Monroe Doctrine, TR had declared in 1904 that although the United States had no territorial ambitions in this hemisphere, cases of “chronic wrongdoing” on the part of a Latin American country that might invite occupation by a European power would force America’s hand. To forestall European occupation, the United States would intervene to restore order and to see that all just claims were satisfied.

When it looked in early 1905 as though one or more European countries might intervene in the Dominican Republic to recover outstanding debt, Roosevelt put the corollary into effect for the first time by declaring that the United States would administer the Dominican Republic’s customs collections to forestall any such foreign intervention.

Here’s the part nearly all historians leave out. From the beginning, TR apparently hoped to be able to avoid consulting the Senate at all, even though Senate approval is required to ratify a treaty. The agreement reached with the Dominican Republic was set to take effect Feb. 1, 1905, a mere 11 days after it was signed – obviously too short an interval to allow for Senate discussion or approval.

The president relented and decided to submit the treaty to the Senate after all when he found himself faced with overwhelming opposition, even among his own supporters. Sen. Augustus Bacon objected, “I do not think there can be any more important question than that which involves the consideration of the powers of the President to make a treaty which shall virtually take over the affairs of another government and seek to administer them by this Government, without submitting that question to the consideration and judgment of the Senate.” For his part, Sen. Henry Teller added, “I deny the right of the executive department of the Government to make any contract, any treaty, any protocol, or anything of that character which will bind the United States. … The President has no more right and no more authority to bind the people of the United States by such an agreement than I have as a member of this body.”

After the treaty was finally submitted to the Senate, a special session closed without taking a vote on it. Exasperated, Roosevelt simply defied the Senate, drawing up what we would today call an executive agreement, the foreign-policy equivalent of an executive order. Roosevelt later recalled in his autobiography: “I went ahead and administered the proposed treaty anyhow, considering it as a simple agreement on the part of the Executive which could be converted into a treaty whenever the Senate acted.” Two years later the Senate did finally approve a modified version of the treaty. It hardly mattered to TR. “I would have continued it until the end of my term, if necessary,” he wrote, “without any action by Congress.”

Before TR’s accession to power, the last time a matter of real significance had been carried out by means of an executive agreement was the Rush-Bagot Agreement of 1817 between Britain and the United States that limited naval armaments on the Great Lakes.

But even here, President James Monroe eventually sought the opinion of the Senate as to whether it required ratification; and while that body gave no answer, it did approve the agreement by a two-thirds vote. It fell to TR to convert the executive agreement into a major instrument of American foreign policy.

In 1909, Roosevelt told his son, “I have been a full President right up to the end.” He went on: “[W]henever I could establish a precedent for strength in the executive, as I did for instance as regards external affairs in the case of sending the fleet around the world, taking Panama, settling affairs of Santo Domingo and Cuba; or as I did in internal affairs in settling the anthracite coal strike, in keeping order in Nevada this year when the Federation of Miners threatened anarchy, or as I have done in bringing the big corporations to book – why, in all these cases I have felt not merely that my action was right in itself, but that in showing the strength of, or in giving strength to, the executive, I was establishing a precedent of value.”

Regards,

Thomas E. Woods Jr.
for The Daily Reckoning
February 1, 2006

Editor’s Note: Look for the second part of this essay in tomorrow’s issue.

Thomas E. Woods Jr. is the author of the New York Times bestseller The Politically Incorrect Guide to American History. The above essay originally ran in The American Conservative magazine, a publication that aims to “ignite the conversation that conservatives ought to have engaged in since the end of the Cold War, but didn’t.”

To learn more about this magazine, and to find out how you can receive 5 free trial issues, see here:

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The Exodus of power and money from West to East continues, if you judge by reports from the plutocrats’ premier pow-wow – the World Economic Forum in Davos, Switzerland. A friend asked if we would be attending that August assembly. We could only respond that we weren’t invited. The invitation must have gotten lost in the mail. But what we hear from news reports is that every hack, has-been, and hustler there is angling for a private meeting with officials from India or China. Every sharpie in the world craves a piece of Asian action.

He’ll need it too, to take his mind off the home front.

And here, we cut long-term Daily Reckoning sufferers a break. Since we are rushing to the airport, we won’t waste our words. We’ll just check in on our Big Es.

On the Energy front, the price of natural gas shot up on Monday after investors listened to the weather report. They were surprised to hear that it typically gets cold in winter. Who would have thought?

Meanwhile, the Economic cycle continues to spin against the new Fed chief. The economy only grew at a 1.1% rate last quarter, even, as Dr. Richëbacher pointed out, after playing fast and loose with the numbers. Last month saw a steep drop in the sales of existing houses, down 5.7%. That means they’ve been falling at a 36% annual rate for the last three months. The backlog of unsold houses is now 25% greater than it was a year ago. The median price for a house in America fell in December – 4% below its August peak. If consumers are going to keep on spending, we don’t know what they’re going to keep on spending with.

Finally, history’s most incompetent Empire peaks out. It seems altogether too soon. Why can’t the American hegemony last for another, say, 800 years like Rome? Well, few empires hang on that long, and modern empires usually have shorter lives than their ancient ancestors. Besides, the United States really isn’t cut out to be an empire…or even capable of it. Its Homeland boys really don’t seem to relish the idea of missing an episode of “Family Guy,” let alone getting themselves shot up, for the sake of imperial glory. And its Texas Tyrants and Plain State Caesars seem peculiarly inept at the business of running an empire.

That’s the problem with the empire business. People start losing the hang of it; they slack off and pretty soon, before you know it, the fellow next door is jumping over the gate and setting up his tent on the front porch. Old Rome was weakened in its later days by “consuetude fraudium” – widespread, widely accepted cheating. And then, Rome was crushed by hordes of Germanic barbarians pouring over the frontier. Centuries later, it was the turn of the English; their empire began to peak out and the next thing they knew, they were wasting themselves battering against German trenches in World War I.

Today in America circa 2006, fraud creeps into nearly every transaction, and the empire’s military power is squandered in a war against…well…against no one! Instead of tracking down the villains of 9/11, the empire went to war with Iraq…killing tens of thousands of people who had nothing to do with 9/11, and costing the empire more than a trillion dollars it didn’t have. Every day, enemies we are essentially creating ambush our centurions…

More news from our currency counselor…

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Chris Gaffney, reporting from EverBank’s world currency trading desk:

“While Chairman Greenspan’s record looks pretty good at first glimpse, our friend Al has left his replacement quite a mess. The new chairman is inheriting an economy with record amounts of debt, both public and personal.”

For the rest of this story, and for more insights into the world currency markets, see today’s issue of The Daily Pfennig

————-

Bill Bonner, back in London with more insight…

*** Yesterday, January 31 was chock-full of little tidbits of news. Let’s see…President Bush addressed the nation…the controversial Judge Samuel Alito, Jr. was sworn in as the 110th justice of the U.S. Supreme Court…and oh yes, Greenspan ended his 18-year run at the Fed, passing the torch along to Ben Bernanke.

Did that last one sneak by you, dear reader? If so, you’re not alone…Bernanke’s nomination slipped under most people’s radar – including two 2008 presidential hopefuls.

According to the IHT, when Senator George Allen was asked his opinion of the Bernanke nomination yesterday, he replied:

“For what?”

Whoops.

The same question was posed to Senator John McCain…with similar results.

“McCain said he did not know too much about Bernanke” continues the IHT report, “but was comforted to know that Greenspan had a high opinion of him. The senator was asked if he would be surprised to learn that the hearing were a thing of the past. He paused for a minute, his eyes widening, before giving the verbal equivalent of a knock on the forehead:

“‘You’re right, you’re right, you’re right. Duuuuuh.”

*** We find it remarkable that so few people show interest in the fact that Greenspan – who is referred to time and time again as “the world’s greatest economist” – ended his tenure at the Fed yesterday. To us, it shows that the average American (and the average politician) have no concern over the state of our economy…an economy, as Pat Buchanan puts it, that “appears healthy, a disease is eating [it] away inside, a disease that Dr. Greenspan has been treating with oxycontin.”

Not exactly the ideal economy for Helicopter Ben to takeover.

“While the nation’s economic growth was 3.5 percent last year, that was below the best year of the Bush recovery, 2004, when growth reached 4.2 percent,” continues Buchanan.

“More ominously, in the fourth quarter of 2005, U.S. economic growth fell to 1.2 percent, the worst quarter since 2002, before the recovery began. If we are approaching the end of boom times on borrowed money, Ben Bernanke may be left holding the bag.”

*** Consumers are spending everything they have – and then some. The Commerce Department reported yesterday, “Americans’ personal savings fell into negative territory at minus 0.5 percent last year. That means that people not only spent all of their after-tax income last year but had to dip into previous savings or increase their borrowing.”

Other than spending on the usual doo-dads and gadgets, Americans this time of year are hit with the “double whammy” of Christmas credit card bills and high heating bills.

Despite the unseasonably warm weather most of the country has been enjoying this winter, the Energy Information Administration tells us, “U.S. consumers are expected to pay $985 to heat their homes with natural gas, heating oil, propane and electricity between October and March, compared with $786 during the last heating season. (Midwesterners can expect to pay 36% more, or $1,182 on average, this season.)”

Although some are feeling the pinch of high heating bills on their wallet, there are still many Americans who have a false feeling of wealth due to high home values.

When the air starts to come out of these inflated prices, more than a few consumers will come flying back to Earth with a thud.

*** “Imagine…the federal government has spent over $749.3 BILLION, just since Oct. 1, 2005,” writes our good friend, John Forde, after looking at the debt clock.

“That’s nearly 15 Bill Gates’ fortunes or nearly 19 times the wealth of Buffett.

“Within eight minutes, the government spends more than $35 million… better than either the Shaq or Michael Jordan in their best years.

“In just 14 seconds, they burned through $1 million. And in 4 seconds, they wasted about $260,000 – about the price of a median American home during the greatest property bubble in U.S. history.

“And in just 2 seconds, they spent over $100,000. That’s more than 98% of Americans take home in an entire year.

“Ouch.

“I tried to figure out how quickly they churn through enough to equal a pint of Guinness. But my stopwatch just isn’t that precise.”