Friday, April 30, 2010

Presidential Powers and Authority

I didn't intend to post again, so soon.  But, I was reading an interesting interview on Front Page Magazine with John Yoo, a law professor at Boalt, and was fascinated by this excerpt:
"...my job on the panel today is try to put what we’re going to talk about in a historical context, which is to talk about where Obama sits in the course of the history of the presidency.  And my basic theme is that President Obama has brought to office what I think of as an upside-down or an inverted view of the presidency, where his view was that the presidency should be a fairly weak office when it came to foreign affairs and national security, that should defer to the other branches; but that he should be a leader of domestic change, and domestic revolution in terms of the economy and society.  And this is the exact opposite, I think, of not just the framers’ design for the office but what his greatest predecessors have done."
Well!  That certainly caught my attention; I majored in History in college, and even taught it for a while.  One year, I coached a team on the U.S. Constitution that participated in a competition.  As a result, I've spent some time reading the actual document, not just re-phrased parts of it.  I'm quite familiar with it, as well as the Federalist Papers, which I also had to read as a part of a class.



The next part of the interview, I'm not so crazy about.  President Buchanan is one I have a peripheral connection to - an aunt by marriage is a descendant.  Many people know little about him.  This excerpt is long, but I needed it to explain why you need to read, not only this interview, but the books the authors are talking about.
"...that’s the basic message of the book, and the basic context I want to set out, is — why is Buchanan the worst President, by universal acclaim, among scholars?  And why is Lincoln almost tied with Washington for being our greatest President?  It has everything to do with emergency and the power of the office.
Buchanan and Lincoln were both Presidents during the worst emergency that we have faced — the Civil War.  And Buchanan responded to it by saying — many people don’t know this — Buchanan thought that secession was unconstitutional.  He actually thought that the states could not leave the Union.  But he said, As President, I have no constitutional power to stop it from happening.  The presidency is powerless.  And he actually said, I call on Congress to reach a solution.
Those of you who’ve worked with a legislature can guess what Congress did.  They formed a special commission to study the problem.  Lincoln comes into office a few months later.  The period between election and inauguration was much longer then.  Lincoln says, I agree with President Buchanan — secession is unconstitutional.  But I have the power as President to protect the country, to protect its security.  And he took extraordinary measures to do that.  He raised an army and a navy, he took money out of the treasury, without congressional permission.  He started offensive operations against the South.  He suspended the writ of habeas corpus through the country, all with the goal of protecting the United States during period of emergency.  His most famous act, and the one for which we as Republicans remember him the most — the Emancipation Proclamation — was what people today would call a unilateral exercise of executive power.
Does anybody remember what the Supreme Court’s opinion about emancipation was in 1863, at the time of President Lincoln’s order?  Supreme Court’s opinion still was Dred Scott vs. Sandford, which said no federal or state government law could eliminate slavery.  Lincoln brushed that aside.  He said, To win the Civil War, we have to free the slaves, which is actually why the Emancipation Proclamation only applied in the South, but not in the peaceful areas of the North.
So in the time I have remaining let me turn to President Obama.  Because the lesson, I think, that comes from the history of our great Presidents and their time during periods of emergency are twofold .  One is that the framers designed the presidency in the weird way they did.  They designed the executive branch with one person in charge, where all the power and responsibility goes to that one person, so that he could act quickly, swiftly, secretly, decisively, as the Federalist Papers talked about.
When it came to domestic policy, however, the framers thought that the presidency would be a modest office.  They were worried about Congress when it came to domestic policy.  Fact, they specifically gave the President the veto power, so that the presidency would moderate the legislative branch.  The framers were extremely worried about the idea that Congress, which had access to the power of the purse, would take money from one group of citizens and transfer it to another group of citizens.  Where would they have gotten that crazy idea from?  The President’s job was to stop Congress from enacting special-interest legislation and to pursue the national interest.
Just let me close by saying — and now set it up for Marc and Andrew, my good friends — look at what Obama did when he came into office.  Right?  He saw his job as pushing Congress to go farther.  And because of that, he’s undermining the legitimacy and power of the presidency, by combining it too closely with Congress, as we’ve seen with health care.  His job was to restrain Congress from passing health care, not to prod it to going farther.
At the same time, I’d say in national security matters, he has tried to retract the power of the presidency.  That’s the way to understand his decision to try Khalid Sheikh Mohammed, the guy who thought up the idea of the 9/11 attacks in civilian court in New York City.  There’s a lot of crazy reasons why this is not a good idea, not the least of which is spending $250 million a year on security in downtown New York, when it only costs, I think — I checked — only $108 million to build the Guantanamo Bay base.
But if you think about it, when you transfer the trial of terrorists to civilian courts, you are, as President, giving up the power to set terrorism policy on a lot of matters to another branch of government, something Presidents Washington and Lincoln and FDR never would have done.  Obama doesn’t want the responsibility, he doesn’t want to make the decisions about the war on terrorism.  But at the same time, he’s, I think, damaging the presidency by pulling the powers of the institution back, and hoping someone else will make the hard choices.
Unfortunately, that’s why we have a President.  If these jobs, these decisions, were easy, we wouldn’t need the President to make them.  And I worry that because of his efforts to avoid these hard choices when it comes to the most important function of government, which is protecting the security of its citizens, that President Obama will not use the powers of his office, as his greatest predecessors did, to protect the security of the country."
 Well!   You really have to read the rest.

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