"Imperial presidency can ... only be empowered by an invisible Congress"

[omega minimo]

http://www.pbs.org/newshour/bb/white_house/jan-june06/power_01-02.html

PBS Jim Lehrer NewsHour
A RENEWED IMPERIAL PRESIDENCY?
January 2, 2006

For a historical look at how executive powers have been wielded and its impact on governance, we're joined by Richard Norton Smith, director of the Abraham Lincoln Presidential Library and Museum in Springfield, Ill.; Ellen Fitzpatrick, a professor of history at the University of New Hampshire; and Andrew Rudalevige, professor of political science at Dickinson College and author of "The New Imperial Presidency: Renewing Presidential Power after Watergate".

A Constitutional basis for power?

RAY SUAREZ: Professor Fitzpatrick, the president, in a recent news conference, cited Article 2 of the Constitution as the platform he was standing on, more or less, for these authorities, for his privileges in doing the kinds of things he was doing in wartime. What does Article 2 say and does he have a good case?

ELLEN FITZPATRICK: Well, the Constitution gives the president power as executive and as Commander in Chief and in the Federalist Papers, Madison made the point that one of the reasons for transferring power from the state government to the president, to the central government, was to protect against foreign enemies, to really protect the security of the country. But originally the notion of being Commander in Chief was not-- was explicitly divided from the notion that the president would decide when it was appropriate to wage war, that power very explicitly went to the Congress. So, the Constitution is very clear on this point. What has happened historically, however, in times of war is that the Congress has ceded authority -- enormous authority in many cases -- to the president to take on powers during times of war because of this unusual situation and the importance of protecting the security of the nation. I think the historical context for what is going on now is really the expansion in the post-World War Two period of the national security state. It is the idea of national security, the doctrine of national security, that is being invoked now to justify a range of actions on the part of the Bush administration in the context of a proclaimed war on terror that has no endpoint.

RAY SUAREZ: Is this part of a general erosion of Congressional power?
ELLEN FITZPATRICK: It is certainly the case that very few times in American history, in fact, when military intervention has been undertaken has it happened as a result of a congressional declaration of war and increasingly in the post-World War Two period, what the idea of national security does is to put the United States in a state of permanent military readiness. It redefines foreign policy problems as threats to the security of the nation and it turns foreign policy goals or aspirations into necessities for the nation's survival and once that happens, what we've seen in the last 50-plus years, is that repeatedly the president invokes that idea, that doctrine, to take unilateral action and to consult the Congress belatedly, if at all.

Part of a cycle?

RAY SUAREZ: Professor Rudalevige, is this a zero-sum game, that if the executive is gaining power it is almost, by definition, Congress that is losing it?

ANDREW RUDALEVIGE: Well, I don't buy that quite. Over time you have seen certainly the growth of a large American state, something that didn't exist in the 18th century, not only the military establishment that Professor Fitzpatrick talked about, but also a large executive establishment in domestic affair, a regulatory state, and as that grows, the government's power grows and the practical necessity of centralized leadership grows. The president has, in fact, been that person. Really under our Constitutional system, he is the only focal point of national leadership. But, that said, Congress needs to be defining the goals of that leadership, right? Where should it be going? In what direction should the country be going? Congress has been, I think, asleep at the switch in recent years. The imperial presidency can really only be empowered by an invisible Congress and so, right now, I think we do have a zero-sum game. That's not a necessity.

The Nixon precedent
 
RAY SUAREZ: But I guess one recent past example, that's the counter-example, is, Ellen Fitzpatrick, the Nixon presidency where executive privilege almost got a bad name--

ELLEN FITZPATRICK: It not only almost got a bad name, it did get a bad name and I agree with Richard largely, but I would also note that, one thing that I think is important is we have a recent historical memory, both in the case of Vietnam and in the case of Watergate, of what excessive use of the doctrine of national security and the state of permanent warfare -- the Cold War before, the war on terror now -- the dangers of it. What it can do to us domestically. What the civil liberties risks are. What overweening executive authority can lead to, the dangers of that. And that is relatively fresh in the minds of the generations of Americans living today, at least of a certain age. And in that sense, I think history is very, very much with us and as it well ought to be. An important point in all of this to emphasize I think is the decision on the part of the Bush administration to decide in the aftermath of 9/11 to characterize our response to the terrorist attack as a war. Because once the state of warfare is invoked as an ongoing reality, then the president can make the case, or try to, that virtually anything necessary to protect national security can be pursued and that to me strikes me as a dangerous state of affairs. If there is, particularly, no endpoint in sight, that becomes highly problematic.

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