Directions: Using the accredited sources listed below please provide two, specific, historical examples that demonstrate the 'growth' in presidential power during the 20th and 21st centuries.
+ 2 ( , 1 1 / , 1 (
Citation: 48 Washburn L.J. 299 2008-2009
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&lastSearch=simple&all=on&titleOrStdNo=0043-0420 Takeover: Return of the Imperial Presidency
Charlie Savage*+
DEAN THOMAS J. ROMIG': Good evening. This has been a
great day for Washburn University School of Law and I hope for all of
you. It has been a superb symposium and it is because of all of you here
who have made it so. Tonight will be a perfect conclusion to a great
day.
I am very pleased to introduce our speaker this evening: the Pulit-
zer Prize-winning author, Charlie Savage. Charlie graduated summa
cum laude from Harvard College and earned a master's degree from
Yale Law School while on a Knight Foundation journalism fellowship.
He began his career with the Miami Herald and then moved on to the
Boston Globe, where he covered national legal affairs. This is where he
gained a lot of prominence because of his excellent work and where I
first had contact with him.
Charlie's work on the Bush-Cheney Administration's efforts to ex-
pand the power of the executive-the chief executive -gained him na-
* B.A. 1998, Harvard College; M.A. 2003, Yale Law School. Mr. Savage is a Washington cor-
respondent for the New York Times. Before moving to the New York Times, he covered national legal affairs for the Boston Globe from 2003 to 2008. + The following has been transcribed and edited from Charlie Savage's presentation on No- vember 13, 2008, at "The Rule of Law and the Global War on Terrorism: Detainees, Interrogations, and Military Commissions" Symposium at the Washburn University School of Law. 1. Thomas J. Romig is Dean and Professor of Law at Washburn University School of Law and Major General (ret.) in the United States Army. A native of Manhattan, Kansas, Dean Romig most recently served as Deputy Chief Counsel for Operations and Acting Chief Counsel for the Federal Aviation Administration (FAA). Prior to joining the FAA, Dean Romig served four years as the thirty-sixth Judge Advocate General of the Army. He led and supervised an organization of more than 9,000 personnel comprised of 5,000 active and reserve military and civilian attorneys and more than 4,000 paralegal and support personnel spread throughout 328 separate offices in 22 countries. He oversaw a world-wide legal practice including civil and criminal litigation, international law, ad- ministrative law, labor and employment law, environmental law, claims, and ethics compliance. Dur- ing his career, Dean Romig prosecuted felony and misdemeanor criminal cases in Texas and taught international law at the Judge Advocate General's School in Charlottesville, Virginia. His significant military positions included: Chief of Army Civil Law and Litigation and Chief of Military Law and Operations, both in Washington, D.C. His military legal assignments included Chief of Planning for the Judge Advocate General (JAG) Corps; Chief Legal Officer for Army Air Defense forces in Europe; and Chief Legal Officer for U.S. Army V Corps and U.S. Army forces in the Balkans. He received a bachelor's degree in social sciences from Kansas State University. He was commissioned through the Army Reserve Officer Training Corps program. After serving six years as a military in- telligence officer, he was selected for the Army Fully Funded Law School program and graduated with honors from the Santa Clara University School of Law, where he served as an editor on the Santa Clara LawReviewand as a member of the Honors Moot Court Board. Dean Romig's military service and leadership have earned him numerous decorations and badges. He retired from the Army JAG Corps in October 2005 after thirty-four years of service. Washburn Law Journal
tional acclaim. His articles in the Boston Globe earned him a Pulitzer
Prize, the American Bar Association Silver Gavel Award, and the Ge-
rald R. Ford Distinguished Reporting on the Presidency Award. His
book on the growth of executive power, titled, Takeover The Return of
the Imperial Presidency and the Subversion of American Democracy, 2
was named one of the best works in 2007 by both Slate Magazine and
Esquire. He also received the Award for Constitutional Commentary
by the bipartisan Constitution Project and the New York Public Li-
brary's Helen Bernstein Book Award for Excellence in Journalism.
This is truly an excellent book, particularly for lawyers who are looking
for that link between policy and law and how it affected decisions. I do
not think anybody has done it better than Charlie Savage. He looks at
the whole progression of the unitary executive and how that was funda-
mental to the decisions that were made in this administration. So please
join me in welcoming our speaker tonight, Charlie Savage.
CHARLIE SAVAGE: Thank you very much. I would like to open
with a special word of appreciation to General Romig because, as he
mentioned, we met some years ago in his prior role, and many consider
him to have been one of the heroes for the rule of law in these troubled
years we have been living through. It is a great honor and a great pleas-
ure to be here at the law school now where he is the dean. So thank
you, General.
While others today have talked in great detail about detention and
interrogation policies in the War on Terrorism, I am planning this eve-
ning to take a step back. I will talk a little bit about those things. But I
am also interested in the deeper motivating forces behind both the na-
tional security policies that gave rise to this conference, as well as many
other issues that seemingly are unrelated to 9/11 policies but are, in fact,
connected with a common root. As Dean Romig mentioned, I am not a
lawyer, and so parts of my presentation may be a bit simplistic for this
audience. But I hope you will bear with me, as I think there is value in
stating clearly, in plain English, certain basic principles and then build-
ing up to a more crystallized understanding of the escalating power of
the American presidency. Afterward, we will have a question and an-
swer period, which I enjoy greatly when I do these presentations. I am
looking forward to what I hope will be an interesting exchange of per-
spectives.
My book, Takeover, and my work as a journalist have been an ef-
fort to explain how the power of the United States President has been
growing dramatically in recent years, where these changes are coming
from, and what that means for the future of American-style democracy.
2. CHARLIE SAVAGE, TAKEOVER: THE RETURN OF THE IMPERIAL PRESIDENCY AND THE SUBVERSION OF AMERICAN DEMOCRACY (2007).
[Vol. 48 20091
As a result of the changes that have developed--especially over the last
eight years, but also as part of a larger pattern that dates back to the
1950s-we are moving toward a situation in which, increasingly, the de-
cisions that affect the United States are being made in secret, with less
input from elected representatives in Congress, and if people do not like
these decisions, assuming that they even know about them, their ability
to get recourse in the courts is eroding. It does not matter whether the
issue is the environment, energy, civil liberties, or war-the bottom line
is that the extraordinary power of the federal government is being con-
centrated in fewer and fewer hands. The checks and balances on what
the handful of officials atop the White House hierarchy can choose to
do with that power are eroding away.
Here I want to pause to emphasize an absolutely critical point. Al-
though we are having this conversation in the context of a Republican
administration, executive power is not a partisan issue. America has
had Democrats as presidents in the past. It will have a Democrat as
president again in two months. If they want to do so, Barack Obama
and other future Democratic presidents will be able to draw upon the
same legal and political precedents established by the current occupants
of the White House to unilaterally impose their own policy agendas. To
think clearly about this, we must separate the specific policies that we
associate with the Bush Administration, like the establishment of Guan-
tanamo and harsh interrogations, from the structural or procedural tools
that President Bush used to advance those policies--but tools that a dif-
ferent President could use to advance very different policies.
To give an example, back in 1993 and 1994 when Bill Clinton was
President, Hillary Rodham Clinton had a task force that was trying to
advance the liberal policy goal of creating universal healthcare, and con-
servatives were outraged because the White House was trying to keep
her task force's work a secret. But there were laws on the books that
said that task forces like that had to do their work in the public view.
Eventually, because of those laws, the Clinton White House was forced
to reveal what Hillary's task force was up to.
Flash forward to 2001 and Vice President Dick Cheney is running
the exact same kind of task force, focused on energy policy instead of
health care. The Bush White House wanted to keep its work a secret
from Congress and the public as well. But unlike the Clinton White
House, the Bush-Cheney Administration did not give in when people
started citing those open-government laws. They fought all the way to
the United States Supreme Court, and they won a precedent that gutted
those laws. They established that presidents have the power to keep
task forces like that a secret. That expanded secrecy power was not just
for the Cheney energy task force; it exists from now on. It is for who-
Takeover: Return of the Imperial Presidency Washburn Law Journal
ever happens to occupy the White House at any moment going forward,
including Barack Obama's Administration, beginning in two months.
That is just one tiny example of the myriad ways in which the cur-
rent administration has very successfully, very ingeniously expanded the
fortress of secrecy that protects the upper levels of the executive branch.
Its secrecy push, in turn, is just one of a huge number of changes that
have been afoot, all of which have served to concentrate more power in
the White House. This is why it is really in the long-term interests of
everybody, regardless of their politics or party affiliation, to understand
and have an informed debate about what has been happening to the sys-
tem designed by America's founders.
Earlier today, Professor Philippe Sands 3 walked through a narra-
tive of how he worked, step by step, to uncover the bureaucratic origins
of the Bush Administration's interrogation policy. 4 I would like to fol-
low the same approach in unfolding the story of how I got on to my own
slightly more abstract topic-the growth of executive power.
In 2005, when I was working for the Boston Globe, my beat was es-
sentially 9/11-related legal issues, and I was closely following the debate
in Congress over torture. At the time, as we all remember, Senator
John McCain was in a big fight with the Bush White House over what
limits there were or should be, if any, on the techniques that American
interrogators could use in trying to extract information from captured
detainees in the War on Terrorism. 5
Back in 1988, Ronald Reagan had signed a treaty saying that the
United States would never use cruel, inhuman, or degrading tactics on
prisoners, no matter what the circumstances. 6 And the Senate had rati-
fied that treaty. That seemed to mean that, basically, the issue was al-
ready settled. But in January of 2005, Alberto Gonzales had revealed
during his confirmation hearings to become Attorney General that the
Bush Administration's legal team had come up with a rather creative
theory about that treaty. 7 They noted that the Senate had put a reserva-
tion on the treaty when it ratified the agreement, declaring that the
United States would interpret the words "cruel, inhuman, and degrad-
ing" to mean the same thing as our domestic legal system's understand-
ing of the United States Constitution's words "cruel and unusual pun-
ishment." Their theory was that this meant the treaty must only apply
3. Philippe Sands is Professor of Law and Director of the Centre on International Courts and Tribunals at the University College of London. 4. Philippe Sands, Torture Team-Abuse, Lawyers, and the Possibility of Criminal Responsi- bility, 48 WASHBURN L.J. 353 (2009). 5. See SAVAGE, supra note 2, at 209-24. 6. United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, Dec. 10, 1984,1465 U.N.T.S. 85, available at http://www2.ohchr.org/ english/law/cat.htm. 7. SAVAGE, supra note 2, at 213-14.
[Vol. 48 Takeover. Return of the Imperial Presidency
on U.S. soil, because the Constitution does not apply abroad. Thus,
their theory went, the president is free to authorize the use of harsh in-
terrogation tactics in overseas prisons.
Now Senator McCain, of course, had famously been a prisoner of
war in Vietnam, where he had been tortured. He thought that this the-
ory was outrageous. And, by the way, the Reagan Administration offi-
cial who had negotiated the treaty, Judge Abraham Sofaer, said that was
not what they had meant at all. 8 So McCain proposed a law that would
close that potential loophole and make clear that the United States
would not and could not abuse prisoners anywhere in the world, some-
thing he said was contrary to core American values.
The White House hated McCain's proposal. 9 As the year went by,
I and other journalists covering this wrote stories about how Vice Presi-
dent Cheney was personally going over to Congress, lobbying lawmak-
ers behind closed doors not to pass that law because, he said, the Presi-
dent needed flexibility. Or if they did enact this law, he said, they ought
to make an exception for the CIA. President Bush was threatening to
veto any bill that had McCain's amendment attached, if it arrived at his
desk, even though at that point he had yet to veto a single bill in his five
years as president.
But in December of 2005, Congress sided with Senator McCain.
Nearly every Republican and every Democrat voted for the torture ban,
so overwhelmingly that even if Bush had vetoed the bill, Congress had
the votes to easily override that veto. So President Bush invited Senator
McCain to the White House, and he had the cameras brought in, and he
shook Senator McCain's hand, and he said that he was accepting this
new law after all. The media wrote the day up, and it looked like the
story was over. But a few days later, I came to work and I learned that
maybe it was not over after all. The previous Friday night around 8:00
p.m.-the Friday night before New Year's Eve weekend, when nobody
was in town and no one was paying any attention-Bush had issued
something called a "signing statement" about that bill. 10
Now, I knew only a little bit about signing statements at that point,
although I would become intimate with them as the year went on. It
turns out that a signing statement is an official legal document that a
president issues on the day he signs a bill into law, and it consists of in-
8. Letter from Abraham Sofaer to Patrick Leahy (Jan. 21, 2005) available at http://humanrightsfirst.us/usjlawetnpdf/sofaer-leahy-cat-art6-93005.pdf. 9. Press Briefing with Scott McClellan, Press Secretary, in Washington, D.C. (Oct. 5, 2005) available at http://www.georgewbush-whitehouse.archives.gov/news/releases/2005/10/2005 1005-4.html. 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 of 2006, Dec. 30,2005, available athttp://www.georgewbush-whitehouse.archives.gov/news/ releases/2005/12/print/20051230-8.html.
200911 Washburn Law Journal
structions to the executive branch about how they are to interpret and
implement the new statutes created by that bill. So in this particular
signing statement, Bush had told military and CIA interrogators that de-
spite the new words that were now on the statute books, the Constitu-
tion gave him, as the Commander-in-Chief, unwritten and inherent
powers to bypass such a law at his own discretion; and so they should
obey his orders when it came to interrogating detainees and not worry
about the words of the statute. 11
So I called the White House and I asked what this thing meant-
did it mean what it seemed to mean, that the law was irrelevant, that
Bush would only obey it when he wanted to, and that he would feel free
to disobey it when he did not want to follow it? And they put me on the
phone with one of his top lawyers on the condition that I would not
print his name, and he told me, yes. Under their legal theory, the presi-
dent need not obey a law that restricted his options when it came to do-
ing something he thought necessary to protect national security. 12 Basi-
cally, the White House was saying that the entire year-long dramatic
debate with McCain and Congress had been irrelevant because it did
not matter what Congress thought the rules should be. The president
gets to set his own rules.
Now, that was pretty interesting, but I did not yet grasp just how in-
teresting it could be. So I went about my beat. One of the next big is-
sues in my area was the Patriot Act, which of course is the legislation
Congress passed right after 9/11 which gave the executive branch much
greater authority to search homes and to get information about the web-
sites people were visiting and the people they were e-mailing and call-
ing, often without a warrant. 13 This Patriot Act was set to expire auto-
matically around that time, unless Congress decided to make it
permanent. Just about everybody in both parties supported making it
permanent.
But some of the lawmakers, especially in the Senate, wanted to add
a few more safeguards to it. In particular, they wanted to require the
Justice Department to give regular, detailed reports to Congress about
how often it was using these new powers and in what circumstances, and
what they got out of it. Their goal was to make sure that the executive
branch was not abusing those powers, now or in the future. 14 The White
House hated that idea as well, and they fought it. But eventually, to
break a Senate filibuster, they struck a compromise, and Bush agreed to
11. Id. 12. SAVAGE, supra note 2, at 225-26. 13. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001) (hereinafter USA Pa- triot Act).14. USA Patriot Improvement and Reauthorization Act of 2005, S. 1389, 109th Cong. (2005) (enacted), available at http://www.govtrack.us/congress/bill.xpd?bill=h109-3199.
[Vol. 48 Takeover: Return of the Imperial Presidency
a few more oversight provisions to get the bill passed.
In March of 2006, Bush invited the leaders of Congress and the
media to the White House for an elaborate signing ceremony where he
put his signature on the bill, and journalists wrote it up. Once again I
thought that a story I had been following for some time was over. Ex-
cept, once again that night, after the lawmakers and reporters had gone
home, Bush issued a signing statement. 15 This one told the Justice De-
partment that despite the words of the new law, the president has inher-
ent power under the Constitution to withhold such information from
Congress at his own discretion. The new oversight provisions were un-
constitutional and did not need to be obeyed if he told the Justice De-
partment not to tell Congress about something. So I wrote about that as
well.
Those two stories, about the torture ban and the Patriot Act sign-
ing statements, got an enormous response. My bureau chief suggested
that I ought to stop writing my ordinary daily stories for a while and just
go off and figure out what was going on with these signing statements-
this obscure tool that most people outside the executive branch had
never even thought about before.
It took me a month to find all of the signing statements that Presi-
dent Bush had issued since January of 2001 and to decipher them. 16 But
it turned out that at that point he had attached these things to more than
125 bills, telling the executive branch that it did not need to enforce
more than 750 distinct sections of those bills enacted into law over the
previous six years. Nearly all of those 750 statutory sections were limits
on the President's own power, so what that really meant is that the
President was claiming a right not to obey those laws, including many
things that had absolutely nothing to do with national security. The laws
Bush has challenged include whistle-blower protections for executive
branch employees, requirements to give Congress detailed reports about
a wide range of government activities, and minimum qualifications for
those who could be named for a variety of important positions such as
the Director of the Federal Emergency Management Agency, among
many other things. 17 Nearly all of these laws are the kind of things that
are nearly impossible to get before a court because no one has standing
to file a lawsuit over them. The President was essentially acting as the
judge of his own powers and ruling in favor of himself. Because there
was no mechanism for Congress to override his pronouncements, his de-
cisions about which laws he did not need to obey were final.
15. President's Statement on Signing H.R. 3199, the USA Patriot Improvement and Reauthori- zation Act of 2005, Mar. 9, 2006, available at http://georgewbush-whitehouse.archives.gov/ news/releases/2006/03/20060309-8.html. 16. See SAVAGE, supra note 2, at 228-49. 17. See id
2009] Washburn Law Journal
I also learned that while previous presidents had occasionally done
the same thing dating back to the nineteenth century, Bush had, at that
point, challenged more laws-more statutory sections-than all previ-
ous presidents in American history combined. And, by the way, now
the number is close to 1,100 bill sections, nearly twice the number of
such laws challenged by all previous presidents combined. 18
Now, this revelation was coming out about the same time the pub-
lic was learning about the warrantless wiretapping program.' 9 In this
program, the White House had acted on its very broad theory of execu-
tive power to bypass a 1978 law 20 that required the government to ob-
tain a warrant from a judge any time it wanted to spy on the telephone
calls or e-mails of an American. As with the torture ban and the Patriot
Act signing statement controversies, the Bush Administration's argu-
ments to justify its legal claims supporting the warrantless wiretapping
program centered on the War on Terrorism and the new situation that
arose after September 11.
But I kept digging more, and I learned that this agenda of concen-
trating more unchecked power in the White House pre-dated 9/11. In
fact, I learned that behind closed doors on January 21, 2001, the day af-
ter President Bush's inauguration, White House Counsel Alberto Gon-
zales had talked about a goal of expanding presidential power at the
very first meeting of the White House legal team. 21 The President,
Gonzales had said long before 9/11, wanted that legal team to seek out
opportunities to expand presidential power in order to leave the office
stronger than it had been when they arrived. 22 This is important-it was
a matter of principle, not partisanship. The goal was a permanent ex-
pansion of executive authority -not just for themselves but for all future
presidents to wield as well, whoever that happened to be at any given
moment, including Democrats. The War on Terrorism, of course, would
provide a mechanism for throwing this pre-existing agenda into over-
drive.
As I talked to former administration officials, I also learned that
this agenda was primarily not the work of President Bush. Instead, it
was coming out of Vice President Cheney's office, and on a day-to-day
level, it was the handiwork primarily of Cheney's long-time aide, a man
named David Addington. 23 When the warrantless wiretapping program
18. See, e.g., Christopher Kelley, President Obtuse, Zone of Twilight, http:// unitaryexec.blogspot.com/2008/10/president-obtuse.html (Oct. 5, 2008, 20:58). 19. James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. TIMES, Dec. 16, 2005, at Al, available athttp://www.nytimes.com/2005/12/16/politics/l6program.html. 20. Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-511, 92 Stat. 1783 (1978). 21. SAVAGE, supra note 2, at 73-76. 22. Id 23. David Addington was a top aide to Dick Cheney in the Office of the Vice President and previously in the Pentagon when Cheney was Secretary of Defense in the Bush-Quayle Administra- tion. He met Cheney as a Republican staffer on the committee investigating the Iran-Contra scandal,
[Vol. 48 2009]
had been revealed, Cheney had told reporters in a very rare press con-
ference that if they were interested in why the Administration thought
that it had all the constitutional power it needed to bypass that warrant
law, they should look up a report that he had overseen back in 1987
when he was a member of Congress and Addington was a Republican
congressional staffer during the Iran-Contra scandal. 24 That, of course,
was the scandal in which several officials in the Reagan Administration
had conspired to bypass a law cutting off assistance to anti-Marxist re-
bels in Nicaragua.
So I took Cheney's advice. I dug up a copy of his old report, blew
the dust off the cover, and read about how he had thought it was per-
fectly legal for the president and his top aides to bypass a law that lim-
ited what they could do in markets of foreign affairs or national secu-
rity. 25 It turned out that Cheney had articulated a vision of nearly
limitless commander-in-chief power two decades earlier and now, as
Vice President, he was turning that vision into a reality.
At this point, the full sweep and implications of the Administra-
tion's project came into sharper focus for me. Like many reporters, I
had been focused on a close-up of one or two controversies, but I had
been missing the broader context. Now, the camera had zoomed way
out to bring the full panorama into view. Suddenly, what the Bush Ad-
ministration had been doing across a huge range of issues made much
more sense. These matters included: the claim that a president could
wiretap without warrants in defiance of a statute; the claim that he could
simply declare that he did not need to obey the Geneva Conventions
when it came to prisoners picked up in Afghanistan; Cheney's fight to
keep his energy task force papers a secret, and the attacks on other open
government laws that required executive branch officials to let the pub-
lic know what they were doing with their power, such as the Freedom of
Information Act and the Presidential Records Act; the decision in De-
cember of 2001 to pull out of an international treaty that had been rati-
fied by the Senate, the Anti-Ballistic Missile Treaty, without asking the
Senate to de-ratify it; the choices of presidential lawyers to be Supreme
Court Justices; unprecedented efforts to impose greater White House
control over Justice Department lawyers, government scientists, and
other executive branch bureaucrats; and an issue that is close to General
Romig's heart, and many of the JAG officers in this room-systematic
efforts to subordinate the Judge Advocate General Corps to greater
control by politically appointed lawyers, undermining their ability to
where Cheney was the top House Republican. See id. at 54, 63, 83-84,284-86. 24. See generally Report of the Congressional Committees Investigating the Iran-Contra Af- fair, H.R. REP. NO. 100-433, S. REP. NO. 100-216 (1987). 25. Id.
Takeover. Return of the Imperial Presidency Washburn Law Journal
provide independent legal advice to their commanders about such mat-
ters as whether the president's interpretation of the Geneva Conven-
tions is correct.
These and other disparate controversies seemed to not be con-
nected to each other but, in fact, they were united at the root. The Ad-
ministration, from its very beginning, had set out to take actions that
would establish precedents permanently expanding presidential power
for the long-term, even when such tactics brought them extra short-term
political difficulties. The Administration could have accomplished the
same policy goals through less controversial means, such as by asking
Congress to change the warrant law or to pass a statute endorsing its de-
tainee policies after 9/11. But it did not because it wanted to demon-
strate for history that Congress did not matter, that the President had
the constitutional power to do what he wanted without asking lawmak-
ers for authorization. The signing statements story, as amazing as it was,
was thus really just the tip of an iceberg-just one tactic for centralizing
power among many tactics that were simultaneously in play. In short, a
quiet, but sweeping constitutional revolution was well underway.
I kept asking the question: Why? What was driving Dick Cheney
and the other presidentialists, as they sometimes call themselves, who
were so relentlessly, ingeniously, and systematically pushing this
agenda -about which they had said nothing to voters when campaigning
for the office? Where was this coming from? This question took me to
Ann Arbor, Michigan, to the Gerald R. Ford Presidential Library,
where the National Archives houses a bookcase full of documents in
grey boxes entitled "Richard Cheney Files." From that pile of memos
the answer to what was motivating this push emerged.
Now, to explain the origins of Cheney's worldview, I need to back
up very briefly to review what the founders had to say about how a gov-
ernment of checks and balances is supposed to operate, even in the face
of national security threats. And then I need to fast-forward to discuss
how the United States began to stray from that vision during the early
Cold War, leading up to Cheney's formative experiences. In 1787, when
they sat down to draft the Constitution, the founders brought with them
a very realistic-and some would say a pessimistic-view of human na-
ture. They knew that human beings are flawed-all of us. It is inevita-
ble that from time to time misguided or incompetent leaders will win
positions of responsibility in government. They also knew that people
in power cannot always be trusted to do the right thing on their own. So
they designed a system that would prevent the concentration of too
much power in any one official's hands. The basic outline of their sys-
tem was to give Congress broad power to enact laws establishing rules
and regulations within which the president would have to operate as he
[Vol. 48 Takeover. Return of the Imperial Presidency
ran the government from day to day. The founders made clear that they
wanted the Congress to be the branch that made the tough decisions
about policy tradeoffs in such matters as-explicitly-how the com-
mander-in-chief may treat enemies captured in wartime. Despite the
tremendous threats facing the fledgling nation, they believed America
would be more secure, not less, if the commander-in-chief-whatever
flawed human being happened to occupy that office at any given mo-
ment-is subject to the rule of law.
There were some short-term bumps along the way, most notably
the first few months of the Civil War, but this system endured essentially
intact for 160 years. Then, amid the national security fears of the early
Cold War, President Harry Truman-a Democrat, I hasten to empha-
size-did something that was unprecedented in U.S. history. In 1950,
Truman took the nation to war in Korea without going to Congress for
permission. This was the first time any president had taken the United
States into a major overseas war without authorization. This launched
the era of what the historian Arthur Schlesinger, Jr. would call the "im-
perial presidency." '6 Truman and his successors of both parties em-
braced a theory that presidents have broad, unwritten, but inherent
powers as commander-in-chief to protect national security as they alone
see fit. For two decades Congress largely sat on its hands as one presi-
dent after another began asserting a right to set aside the rules at his
own discretion. While this was happening, presidents were also making
related power grabs, such as keeping ever more information secret from
oversight committees and the courts through such inventions as the term "executive privilege," 7 which did not pre-date the 1950s, and the "state
secrets privilege, 28 first recognized in the 1950s.
Presidential power thus steadily escalated for two decades, peaking
during the Nixon Administration. But Richard Nixon pushed the logic
of power to the breaking point, and his imperial presidency came crash-
ing down. In the wake of the twin disasters of Watergate and Vietnam,
Congress finally reawakened. It began conducting meaningful oversight
again for the first time in decades, and it began passing a series of laws
re-imposing controls on executive power in order to prevent future
abuses.
26. ARTHUR SCHLESINGER, THE IMPERIAL PRESIDENCY passim (1973). 27. The Eisenhower Administration, seeking to protect government personnel files from Com- munist witch-hunts by Congress in 1954, promoted the new phrase "executive privilege." While predecessors had at times withheld information sought by Congress for a narrow set of categories, the Eisenhower Administration was the first to essentially proclaim that the executive branch could withhold any internal documents from oversight committees. See id. at 156. 28. The state secrets privilege allows the executive branch to withhold any information from a court by declaring that disclosing the information-even to a judge alone, in his chambers-could jeopardize national security. This essentially allows the president to shut down lawsuits challenging executive branch actions at his own discretion. The Supreme Court first recognized the existence of this unwritten constitutional power in the 1953 case United States v. Reynolds, 345 U.S. 1, 10 (1953).
2009] Washburn Law Journal
Understanding this moment in the mid-1970s is critical for under-
standing what has been happening over the past eight years, because at
that moment, Dick Cheney was the White House Chief of Staff to
Nixon's successor, Gerald Ford-the youngest White House Chief of
Staff in history. Day upon day in the Ford White House, he and his al-
lies were confronting a Congress that was determined to re-impose con-
trols on White House power. As his memos and his documents in the
National Archives files show, from inside the White House, this period
did not look like a necessary constitutional correction. It was an out-
rage. They felt that they were being unjustly punished; that they could
be trusted with these powers; and most importantly, they felt that these
reforms would weaken the commander-in-chief, and that meant weak-
ening America. Cheney and those who felt like him abandoned the tra-
ditional conservative suspicion of concentrated government power, and
spent the next thirty years seeking to roll back the changes in the
1970s-to refight those battles and win them this time, with the goal of
restoring presidential power to the inflated level that it had briefly
reached in the aberrational moment before Richard Nixon's fall.
You can see Cheney's agenda in the decade he spent as a member
of the House of Representatives. There, he was continuously arguing
with his colleagues that they ought to be giving the president more
flexibility, not less, in foreign affairs and national security matters-not
just during the Iran-Contra scandal but throughout that period. You
could see it in his tenure as the Secretary of Defense to the first Presi-
dent Bush, when he unsuccessfully urged George H.W. Bush to launch
the Gulf War without going to Congress for authorization, in what
would have been a demonstration that Truman was right-that it was, is,
and always would be legal for a president to do that.
During my research, I found all kinds of essays, interviews, and
speeches in which Cheney explained his view. In 1989, for example,
Cheney wrote an essay for a talk he was going to give at the American
Enterprise Institute, a conservative think tank in Washington, about
what he termed "congressional overreach in foreign policy." 29 As it
turned out, he never presented that paper because he was nominated to
be the Secretary of Defense. But during research for my book, I ob-
tained a copy of it. In the essay, Cheney said that he wanted to get be-
yond the legal arguments over the possible meanings of what he some-
what disparagingly calls the "parchment document"-that is, the
Constitution-and explain why, for pragmatic and "real world" reasons,
he endorses an interpretation that gives stronger powers to the presi-
29. Richard Cheney, Congressional Overreaching in Foreign Policy (Mar. 14-15, 1989) (unpub- lished manuscript, on file with the author) (draft prepared for the American Enterprise Institute con- ference "Foreign Policy and the Constitution").
[Vol. 48 2009]
dent and a lesser role for Congress.
It turns out that Cheney takes the opposite view of the founders,
who, as you will recall, thought that it was too risky to let just one per-
son-one flawed human being-control major national security deci-
sions. Cheney said that it was too risky to have more than one person
control such decisions. He argued that any system in which the body of
elected representatives gets to influence the big decisions on national
security would increase the likelihood of leaks and would diminish the
likelihood of a proposed covert strike, military attack, or other action
from going forward. Thus, Cheney wrote, back in 1989, "the real world
effect often turns out not to be a transfer of power from the president to
Congress, but a denial of power to the government as a whole., 30 In
other words, given the dangers and complexity of the modern world and
the United States' role in it, he wants the country to be assertive about
launching attacks and taking other frequent and bold actions in the in-
telligence and national security world. He knows that the country will
be more aggressive if the commander-in-chief gets to make such calls
completely at his own discretion-if there are no rules to which the
president is subject, and if he has exclusive control over the zone of the
nation's intelligence activities and military operations. Quite obviously,
Cheney is right about that dynamic.
There were others who agreed with Cheney that presidential power
ought to be put back to the level it briefly achieved before Nixon's fall.
But their goal faced a legal obstacle. Even if you buy into the idea that
the Constitution gives the president vast unwritten or inherent power,
an inherent executive power is not the same thing as an exclusive execu-
tive power. It is one thing to say that if necessity arises, the president
may direct the government to do something that he was not specifically
authorized to do by the Constitution or a federal statute because he has
the inherent power as commander-in-chief to order such an action. But
it is a very different thing to say that Congress cannot choose, if it wants,
to step in and pass a law regulating how the president can go about do-
ing that thing from now on.
For example, for most of the twentieth century, there was no law
on the books that authorized the executive branch to monitor phone
calls that touch United States soil in search of spies and terrorists out-
side of the criminal law enforcement context, but maybe the president
had inherent power to order that step anyway. But that does not mean
that only the president has power in this area, and that Congress lacks
any overlapping jurisdiction to regulate how the executive branch car-
ries out that task. In 1978, following revelations that for two decades,
30. Id Cheney was, in turn, quoting with approval the thoughts of Caspar Weinberger, who had been Defense Secretary in the Reagan Administration.
Takeover: Return of the Imperial Presidency Washburn Law Journal
presidents of both parties had abused their surveillance powers to spy
on domestic political enemies, Congress passed a law requiring the ex-
ecutive branch to start obtaining warrants from a judge for such eaves-
dropping.
To recap: An inherent power is not necessarily an exclusive power.
But during the 1980s, presidentialists on the Reagan legal team came up
with something called the Unitary Executive Theory. 31 This rested on a
revisionist understanding of the Constitution whereby Congress may not
pass laws that fracture the president's control of anything deemed to be
an executive power. Back in the 1980s, advocates of the theory in the
Reagan Administration had not been thinking about national security.
Instead, they were focused on comparatively tame domestic issues, such
as control of the decisions made by independent agencies like the Fed-
eral Reserve (Fed). Since Congress had created the Fed and given it the
power to set interest rates, and the decision to raise or lower rates on
any given day was simply the execution of the law governing the Fed,
maybe, they argued, the president should get final say over that kind of
thing by being able to fire Fed members if they ignore his policy orders.
But after 9/11, the Bush Administration's legal team revived the Unitary
Executive Theory and dramatically expanded its sweep to encompass
matters of inherent power and national security. In their hands, the
Unitary Executive Theory transformed the commander-in-chief's inher-
ent executive responsibility to protect national security into an exclusive
power that Congress cannot regulate.
If this vision were accepted as true, then the unchecked powers
sought by Cheney and his allies during all those arguments and debates
over the years already existed, regardless of what Congress had chosen
to say the rules were in the statutes it passed and the treaties it ratified.
These powers were just slumbering in wait of a president willing to start
using them, and thereby, to demonstrate that they existed.
In 2001, the Bush-Cheney Administration started using those pow-
ers. On September 25, 2001, two weeks after 9/11, a Deputy in the Jus-
tice Department's Office of Legal Counsel named John Yoo completed
a secret memo that would lay out the powers the executive branch be-
lieved itself free to exercise in the coming War on Terrorism. 32 Mr.
Yoo's secret memo asserted as fact that "the President's powers include
inherent executive powers that are unenumerated in the Constitution";
among them a right to use military force as he saw fit regardless of the
views of Congress. 33 And, referencing the Unitary Executive Theory,
31. SAVAGE, supra note 2, at 47-50. 32. Memorandum from John C. Yoo, Deputy Assistant Attorney General to the President (Sept. 25, 2001), available at http://www.usdoj.gov/olc/warpowers925.htm. 33. Id.
[Vol. 48 Takeover: Return of the Imperial Presidency
Yoo wrote that Congress has no power to limit how the president went
about defending the nation. "[W]e think it beyond question," Yoo
wrote, that Congress cannot "place any limits on the President's deter-
minations as to any terrorist threat, the amount of military force to be
used in response, or the method, timing, or nature of the response.
These decisions, under our Constitution, are for the President alone to
make. ,34
This is a vision for a commander-in-chief who exists above the rule
of law as it has been traditionally understood in this country. It is also a
view that happens to run counter to mainstream and traditional under-
standings of the Constitution and what the founders were trying to do, a
few years after they had fought a war to rid themselves of rule by a king.
But it would not be long before the Administration discovered opportu-
nity to turn its aggressive theory into real world action. Each time a
problem arose-and many problems would arise in the weeks and
months after 9/11, including matters of surveillance, detention, and in-
terrogation-the inner-circle of decision-makers at the White House
looked at their options for solving that problem, and then they picked
the solution that relied upon the greatest possible assertion of unilateral
presidential power to bypass statutory and treaty constraints. By acting
on their legal theories, they transformed those theories into historical
precedents that future presidents will be able to cite when they too want
to evade such a limit on their power in the name of national security.
We do not have enough time today to enumerate all the ways in
which the Bush Administration has sought to centralize power in the
White House. You might say that it would take a book to do justice to
that subject. But I have already talked about signing statements, dra-
matically expanding executive secrecy, and claiming and demonstrating
that the president has a right to bypass laws and ratified treaties govern-
ing surveillance, detention, and interrogation. I will name just a few
others.
For example, it has been claimed and demonstrated that the Presi-
dent has a right to seize and imprison American citizens indefinitely,
even when arrested on U.S. soil, without charges or a trial, at the discre-
tion of the executive. 35 Also, as previously mentioned, by pulling out of
the Anti-Ballistic Missile Treaty in 2001 without asking the Senate to
vote on whether to de-ratify it, the Bush Administration has locked
down a precedent giving presidents the power to dispose of even major
ratified treaties at his or her own discretion. 36 This was a significant ex-
34. Id 35. See, e.g., Padilla v. Hanft, 423 F.3d 386,397 (4th Cir. 2005). 36. President George W. Bush, Remarks on National Missile Defense (Dec. 13, 2001), available at http://www.georgewbush-whitehouse.archives.gov/news/releases/200l/12/printl200112134.html.
20091 Washburn Law Journal
pansion of a precedent that was first established by Jimmy Carter-a
great demonstration about why these things are not partisan issues. 37
The Administration also won from Congress many statutes that
add to the president's power. I have already mentioned the Patriot
Act. 38 In addition, after Hurricane Katrina, the Administration won
from the Republican Congress a law that allowed the President to im-
pose martial law much more easily, even if a state's governor objects. 39
That measure was later rolled back by Congress after the Democratic
takeover in 2007-a very rare example of the Democratic Party using its
new majority to push back successfully. 40 But cutting the other way, in
the Protect America Act of 200741 and the FISA Amendments Act of
2008,42 the Democratic Congress locked down in statute the warrantless
wiretapping program that President Bush had earlier seized on his own,
rolling back one of the last remaining Watergate-era limits on executive
authority.
Perhaps the most important legislation in which Congress ex-
panded presidential power was the Military Commissions Act of 2006,
which locked down in statute the President's power to hold U.S. citizens
as enemy combatants and expanded the definition of who meets that cri-
teria, not just suspected members of Al Qaeda, but anyone who is ac-
cused of assisting anyone else who is accused of taking up arms against
the United States generally. 43 This definition is so broad that it poten-
tially sweeps in the right-wing militia movement, left-wing groups like
the old Weather Underground, 44 and even the rural mountain dwellers
of North Carolina who are suspected of helping Eric Rudolph, the
bomber of the abortion clinics and the 1996 Olympics, evade federal
capture all those years. 45 They are not criminals, but enemy combat-
ants.
The strategy of picking presidential lawyers to fill Supreme Court
vacancies has been an integral part of the groundwork this administra-
tion has laid for a long-term expansion of White House power. In 2005,
when President Bush selected John Roberts, Harriet Miers, and then
37. See Goldwater v. Carter, 444 U.S. 996,997-98 (1979). 38. USA Patriot Act, Pub. L. No. 107-56,115 Stat. 272 (2001). 39. John Warner National Defense Authorization Act for Fiscal Year 2007, Pub. L. No. 109- 364, 120 Stat. 2083 (2006). 40. National Defense Authorization Act for Fiscal Year 2008, Pub. L. No. 110-181, 122 Stat. 3 (2007). 41. Protect America Act of 2007, Pub. L. No. 110-55,121 Stat. 552 (2007). 42. Foreign Intelligence Surveillance Act (FISA) of 1978 Amendments Act of 2008, Pub. L. No. 110-261,122 Stat. 2436 (2008). 43. Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (2006). 44. The Weather Underground Organization was a radical group opposed to the Vietnam War that conducted a string of bombings aimed at the U.S. government, among other acts. See, e.g., In- dependent Lens, http://www.pbs.org/independentlens/weatherunderground/movement.html (last vis- ited Jan. 17, 2009). 45. See, e.g., Patrik Jonsson, How Did Eric Rudolph Survive?, THE CHRISTIAN SCIENCE MONITOR, June 4, 2003, available at http://www.csmonitor.coml2003/0604/pOlsO2-usju.html.
[Vol. 48 2009]
Sam Alito to fill the first two Supreme Court vacancies in a decade, ob-
servers outside the executive branch largely evaluated these nominees
through the lens of social issues, such as how they were likely to rule on
abortion rights. Lost amid the hubbub was what I believe to have been
an essential factor behind all three nominations. There was a broad ar-
ray of very prominent, very conservative legal scholars and lower court
judges from which the Bush-Cheney legal team could have selected its
nominees. Tellingly, the Administration chose all three from a very nar-
row slice of the conservative legal world. All three were executive
branch legal warriors.
As former White House and Justice Department lawyers, all three
had spent years marinating in disputes over executive power from the
president's perspective-pushing for stronger White House powers.
The National Archives houses reams of documents from John Roberts'
era in the White House Counsel's Office in the Reagan Administration,
and Sam Alito's era in the Justice Department's Office of Legal Coun-
sel. This is fascinating reading, with Roberts advocating stronger se-
crecy powers for the White House and broad presidential powers to
launch combat without congressional authorization, as in the invasion of
Grenada. 46 Similarly, Alito's papers show that he spent years working
on ways to increase the president's unilateral powers, including taking a
key role in the development of the modern strategy of issuing signing
statements much more frequently as a means of increasing the presi-
dent's power over the law. 47 And of course, Harriet Miers had been
part of the Bush Administration legal team during all the fights that
arose after 2001. These attorneys had proven their executive power
bona fides. They had already embraced theories like the Unitary Ex-
ecutive. 48 And they were thus likely to bring a very deferential attitude
to the bench when future lawsuits arise over aggressive claims of presi-
dential authority-Guantanamo-type issues today, but who knows what
it will be ten or twenty years from now.
For the most part, the project to expand presidential power has
been the most successfully implemented domestic policy of this Admini-
stration. Only on very rare occasions have there been stumbles. Most
46. Memorandum from John G. Roberts to Fred F. Fielding (Sept. 9, 1985) (on file with au- thor); Memorandum from Fred F. Fielding (Sept. 9, 1985) (on file with author); Memorandum from John G. Roberts to Fred F. Fielding (Jan. 13, 1984) (on file with author); Letter from Fred F. Fielding to Arthur Goldberg (Jan. 13,1984) (on file with author). 47. Memorandum from Samuel A. Alito, Jr., Deputy Assistant Attorney General, Office of Legal Counsel, to The Litigation Strategy Working Group (Feb. 5, 1986), available at http://www.archives.gov/news/samuel-alito/accession-060-89-269/AccO6O-89-269-box6-SG-LSWG-AlitotoLSWG-Feb1986.pdf. 48. See, e.g., Samuel A. Alito, Jr., Introduction, After the Independent Counsel Decision: Is Separation of Powers Dead?, 26 AM. CRIM. L. REV. 1667, 1667 (1989); Memorandum from John G. Roberts to Fred F. Fielding (July 15, 1983) (on file with author); Memorandum from John G. Rob- erts to Fred F. Fielding (July 28, 1983) (on file with author).
Takeover: Return of the Impeial Presidency Washburn Law Journal
notably, in 2006, the Supreme Court's decision in Hamdan v. Rums-
feid 49 said when it came to military commissions, the president must
obey a statute passed by Congress and the Geneva Conventions, con-
trary to the Administration's legal theories. 50
But the fallout from that ruling was very quickly contained. One-
party rule at the time helped the White House get Congress to roll back
the decision by again setting up military commissions. Even more im-
portantly, Congress limited the ruling's ability to spread by stripping
courts of the ability to hear Geneva Conventions-based lawsuits in the
future. 5' And, crucially, often overlooked by those who celebrated that
ruling, only five of the nine Supreme Court Justices disagreed with the
White House's legal theories. 52 The other four, including Roberts and
Alito, are an average of twelve years younger than those five. Given the
realities of the human lifespan, it seems likely that future presidents,
within a few election cycles, will have ample opportunity to get that fifth
vote if they want to. Thus, rather than a final word, the Hamdan deci-
sion may have turned out to have been something closer to a last hurrah
for the traditional understanding of checks and balances on the presi-
dent's power in matters of national security.
In closing, when I say "the subversion of American democracy" in
the subtitle of my book, which may be a bit too aggressive, I am speak-
ing of American-style democracy-the founders' vision, born of the re-
bellion against a king, of using checks and balances to prevent the con-
centration of government power. I am not talking about democracy per
se. After all, presidents, whether they are subject to the rule of law or
not, still must win an election every four years. But I believe it is a fun-
damental principle of democracy, broadly speaking, that if a nation's
governing system is going to change, it should only happen after an in-
formed public debate and a demonstrated mandate from voters. Back
in 2000, the Bush-Cheney campaign said nothing about their attitude
towards presidential power to voters, even though expanding that power
would be a conscious and central agenda from their first day in office.
Last December I grew frustrated with the fact that the 2008 presi-
dential candidates were again volunteering little about their views of ex-
ecutive power and what limits, if any, they would respect on their own
authority if entrusted with the White House. Nor were debate modera-
tors asking the question. I drew up a survey of a dozen questions and
49. 548 U.S. 557 (2006). 50. Id. at 635. 51. Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (2006). 52. Justices Stephen Breyer, Ruth Bader Ginsburg, Anthony Kennedy, David Souter, and John Paul Stevens were in the majority. Hamdan, 548 U.S. at 566. Justices Samuel Alito, Antonin Scalia, and Clarence Thomas dissented. Id. at 655. Chief Justice John Roberts recused himself because he had ruled on the case at an earlier stage when he was still an appeals court judge, but in that prior ruling he had sided with the Bush Administration. See id. at 635.
[Vol. 48 20091
submitted them to the six leading candidates in each party before the
Iowa Caucuses. I got back detailed answers from nine of them, includ-
ing all three who made it to the finals, as it were: Senators Obama, Bi-
den, and McCain. 53 The surveys showed some interesting patterns. 54
McCain, Obama, and Biden all distanced themselves from the Bush-
Cheney theories, as opposed to, say, Mitt Romney, who enthusiastically
embraced or implicitly endorsed everything Bush has claimed and
done. 55 McCain, Obama, and Biden all said that the president, for ex-
ample, must obey a law governing surveillance or torture unless he can
get Congress to change it, even if he does not want to obey it.56
Still there were some differences. Interestingly, McCain said that
he would never issue a signing statement if he were president. 57 But
Obama, while criticizing Bush's use of signing statements as too aggres-
sive, said that he would keep using the device when he decided that leg-
islation he was signing contradicted the Constitution. 58
On the other hand, after McCain and Obama won their respective
nominations and the power of the presidency grew tantalizingly closer
to both of them, both seemed to back away from a little of the modesty
they expressed early in the campaign. For example, Obama initially said
he would never support a bill endorsing the president's warrantless
wiretapping program if it gave legal immunity to the telecommunication
firms that allowed the Bush Administration to violate the warrant law. 9
He then turned around and voted for exactly that legislation anyway. 60
More dramatically, after McCain won his party's nomination, a top ad-
viser said that McCain now believed that the warrantless wiretapping
program had been legal all along because of the president's commander-
in-chief powers-a view that totally embraced the Bush-Cheney theo-
ries of nearly unlimited executive power in national security matters. 61
53. For the full text of their answers, see Charlie Savage, Barack Obama Q&A, THE BOSTON GLOBE, Dec. 20, 2007, available athttp:lwww.boston.comlnews/politics/2008/specials/CandidateQA/ ObamaQA/; Charlie Savage, Joseph Biden O&A, THE BOSTON GLOBE, Dec. 20, 2007, available at http:/www.boston.comlnews/politicsl2008/specials/CandidateQA/BidenQA; Charlie Savage, John McCain O&A, THE BOSTON GLOBE, Dec. 20,2007, available at http://www.boston.com/news/ politicsl2008/specialslCandidateQA/McCainQA/. 54. Charlie Savage, Candidates on Executive Power: A Full Spectrum, THE BOSTON GLOBE, Dec. 22, 2007, at Al, available athttp://www.boston.com/news/nation/articles/2007/12/22/ candidates-on-executive power-a-full-spectrum. 55. Charlie Savage, Mitt Romney Q&A, THE BOSTON GLOBE, Dec. 20, 2007, available at http:llwww.boston.comlnews/politics/2008/specialsCandidateQAlRomneyQA/. 56. Supra note 53. 57. Savage, John McCain Q&A, supra note 53. 58. Savage, Barack Obama O&A, supra note 53. 59. Greg Sargent, Obama Camp Says It: He'll Support Filibuster of Any Bill Containing Tele- com Immunity, TPM Election Central, http://tpmelectioncentral.talkingpointsmemo.com2007/ 10/obamacamp-says itjhell-support-filibuster of any bill-containingjtelecom-immunity.php (Oct. 24, 2007, 13:18). 60. For the Senate roll call vote on the FISA Amendments Act of 2008, see United States Sen- ate, http://www.senate.gov/legislativelLIS/roll-call lists/roll call vote-cfm.cfm?congress=1l0& session=2&vote=00168 (last visited Jan. 18, 2009). 61. Charlie Savage, Adviser Says McCain Backs Bush Wiretaps, N.Y. TIMES, June 6, 2008, at
Takeover. Return of the Imperial Presidency Washburn Law Journal
Now the election is over and Obama is going to be president. So
the question is: What is he going to do? His answers before the Iowa
Caucuses were quite limited, but his transition team appears to be filling
his coming administration with Clinton-era attorneys. We have to re-
member that President Clinton-while not as aggressive as the Bush-
Cheney Administration in its systematic effort to expand presidential
power-was nevertheless no slouch when it came to pushing the enve-
lope when he had specific policy problems he wanted to solve. Among
other things, Clinton used signing statements extensively against the
Republican-dominated Congress, albeit not on the scale of the Bush
Administration. More importantly, in 1999, Clinton launched the Kos-
ovo War without congressional authorization and then allowed combat
operations to go on for seventy-eight days, becoming the first and thus
far only president to violate the sixty-day clock for unauthorized mili-
tary operations that Congress imposed in the War Powers Resolution at
the end of the Vietnam War. If many members of the same legal team
that signed off on Clinton's moves flood back into the White House,
now with the Bush precedents to draw on, we will see what happens. 62
But even if future presidents renege on their promises, I believe
that it is important to ask them these questions. There is value to having
presidents' pre-Iowa answers on the record so that we can at least hold
them accountable and draw public attention to those occasions when
they may fail to live up to what they said when they were asking voters
to elect them. For this reason, I believe that in the future, aspiring
presidents should be required to tell voters in detail what they think
now, not after one of them has already moved into the Oval Office.
So once again, I would like to thank Washburn University School
of Law, and particularly General Romig, for fostering public discussion
of this critical issue. It is an honor for me to be here as a part of this
conference. Thanks to each of you for listening and taking an interest,
and I would be happy to address any questions.
AUDIENCE MEMBER: Really terrific, wonderful. I have a com-
pound question. I wonder whether you have given thought, or have any
ideas, on the relationship between what you describe as the presidential-
ist view and the neo-conservative view, marrying those two propositions.
And the second piece, I wonder if you are being a little too apocalyptic
in your predictions about the Supreme Court appointments. I am think-
ing of two things-the decision in Medellfn v. Texas 63 where Chief Jus-
Al, available at http://www.nytimes.com/2O08/06/O6/us/politics/O6mccain.html. 62. 1 made this remark prior to the selection of Dawn Johsen to lead the Justice Department's Office of Legal Counsel (OLC), along with David Barron and Marty Lederman as deputies. While all three were OLC attorneys during the Clinton Administration, it is important to note that all three are very prominent and outspoken critics of the Bush Administration's legal theories about presiden- tial power.63. 128 S. Ct. 1346 (2008).
[Vol. 48 Takeover. Return of the Imperial Presidency
tice Roberts and Justice Alito both went against the President in his as-
sertion of power, vis-A-vis the State of Texas. And also Justice Jackson,
when he was in the Truman White House, advocated for very strong ex-
ecutive power in connection with Truman's position, and then later
wrote the famous decision in Korematsu v. United States, 64 disavowing
his prior position as advocate. I just wonder whether we have more rea-
son to hope.
CHARLIE SAVAGE: A lot of good questions. I think Jackson
was in FDR's White House at the time of those aggressive pro-executive
power writings. But you are right that Jackson dissented in Korematsu,
which upheld FDR's Japanese-American internment policy during
World War 11.65 That dissent, by the way, includes a great quote with
which I close my book. 66 He is arguing that the Supreme Court ought
not to have taken this case and ought not to be upholding the Roosevelt
Administration's power to detain all the Japanese-Americans on the
West Coast. 67 And he invokes this great image, that once a new execu-
tive power is ratified into precedent-in that case the judicial precedent,
but I would argue a historical precedent acts the same way, especially in
the Office of Legal Counsel world-it lies about like a loaded weapon,
waiting around for some future president to pick up whenever he can
claim an urgent need to do so. I think all of these powers that the Bush
Administration has established are going to be with us for some future
president's Office of Legal Counsel to say, "It is well-established that we
can do this because in 2002 the President did this and got away with it.
That shows it can be done." That is a tangent.
Addressing whether there is a neo-conservative connection to pre-
sidentialism-presidentialism makes neo-conservatism easier, in the
sense that neo-conservatism means aggressive use of force abroad for a
variety of policy ends and a more muscular presidency can just send the
troops off to start fighting at his own discretion without first having to
convince others of that policy. As Cheney observed back in 1989, the
country will just do that much more often. 68
But I think this is bigger than national security and foreign affairs.
These powers can be used for all kinds of policy ends that have nothing
to do with the neo-conservative worldview. For example, here is an in-
teresting thought experiment. During the Democratic primary, Barack
64. 323 U.S. 214 (1944). 65. Id. at 242-48 (Jackson, J., dissenting). 66. "As Supreme Court Justice Robert Jackson once warned, any new claim of executive power, once validated into precedent, 'lies about like a loaded weapon ready for the hand of any au- thority that can bring forward a plausible claim of an urgent need. Every repetition embeds that principle more deeply in our law and thinking and expands it to new purposes."' SAVAGE, supra note 2, at 330 (quoting Justice Jackson's dissenting opinion in Korematsu, 323 U.S. at 246). 67. See Korematsu, 323 U.S. at 244 (Jackson, J., dissenting). 68. Cheney, supra note 29.
2009] Washburn Law Journal
Obama and Hillary Clinton were fighting with each other over who
hated free trade more. It was probably just posturing, but they were
each promising that they were going to unilaterally renegotiate NAFTA
(North American Free Trade Agreement) 69 to make Canada and Mex-
ico put in more labor protections and so forth-not that Canada needs
more labor protections, but I guess it was aimed south. I think Obama
said the leverage he would use to get them to change the treaty was that
he would just pull us out of NAFTA if they refused to add those provi-
sions to it. Well, that is pretty interesting. Can a president unilaterally
pull us out of NAFTA by waving his fingers? Bush pulled us out of the
ABM Treaty by waving his fingers. 7° So I guess Obama can do that if he
wants.
Now, getting rid of free trade has nothing to do with neo-
conservatism. In fact, it probably cuts the other way because it would be
an isolationist move. So this thought experiment illustrates how these
issues float above ordinary politics. Presidential power-including seiz-
ing the power to unilaterally control when the United States is going to
abrogate a treaty-is a structural issue that can be invoked for a wide
range of policies.
As far as Medellin, that is an interesting observation. 71 That case
addressed the death penalty, the rights of Mexican citizens arrested in
the United States to get consular consultations, and whether Bush could
order the state of Texas to stay its executions because it had not gotten
those consultations. 72 The conservative Supreme Court Justices held
that Bush did not have the power to interfere with a state's criminal jus-
tice system. 73 So it is true, that case cuts the other way. None of these
things are completely black and white. There is a lot of complexity and
nuance here. I think another one would be Justice Scalia's dissent in
Hamdi v. Rumsfeld, 74 which was about the U.S. citizen who was picked
up in Afghanistan and indefinitely detained as an enemy combatant.
Scalia said that the president had to charge Hamdi with treason and give
him a trial or release him. 75 So no one is a robot here. But I think there
are inclinations, there are biases, and there are overall trends. What we
see here is overwhelming deference, if not one that has no exception.
AUDIENCE MEMBER: Thank you very much, Charlie. I think
you may be a little bit over-pessimistic in terms of anticipating that
presidential power will always ratchet itself up over time. If you reflect,
69. North American Free Trade Agreement, U.S.-Can.-Mex., Dec. 17, 1992, 32 I.L.M. 289 (1993); 19 U.S.C. §§ 3301-3473 (2006). 70. Bush, supra note 36. 71. Medellin v. Texas, 128 S. Ct. 1346 (2008). 72. See id. at 1353, 1354. 73. Id. at 1353. 74. 542 U.S. 507 (2004). 75. Id. at 554 (Scalia, J., dissenting).
[Vol. 48 Takeover: Return of the Imperial Presidency
the first three presidents in United States history presided over ex-
tremely strong executive offices in Washington. Presidents Adams and
Jefferson were, by any measure, very strong presidents. But between
1865 and 1933, I think it is safe to say we lived in an era of congressional
supremacy, and presidencies were rather weak. One can envision, then,
at least in theory, a strong presidency giving way to a period of congres-
sional ascendency. It is not inevitable that presidents or presidential
power will be embraced by succeeding administrations. But my ques-
tion for you is a different one. It is very interesting to me that you set
out to anticipate how Barack Obama might interpret executive author-
ity based on his responses to your surveys.
Perhaps my question is embarrassingly naive. But Barack Obama
was professor of constitutional law for ten years. I have not read his
curriculum vitae. I do not know how long he taught. Presumably, he
has published something. As a professor of constitutional law in Chi-
cago, one would anticipate that someone is publishing on constitutional
law. Does he not have a record of publications addressing the issue of
the balance of powers within the federal government, and how executive
authority is placed within those bounds? And also, I do not want to
read too much into Medellfn because Medellfn also incorporates feder-
alism in the balance. 6 It is one thing for a relatively conservative judge
to defer to state power. It is another for a relatively conservative judge
to embrace international law or federal constitutional checks on execu-
tive authority.
CHARLIE SAVAGE: You made three points. I entirely agree on
your point about Medillfn and the conflicting notions of federalism ver-
sus executive power that came into play in that case.
Your question about whether Barack Obama had published any-
thing, I feel maybe was a rhetorical question as he famously has not
published anything.
AUDIENCE MEMBER: I did not know that.
CHARLIE SAVAGE: During the campaign, there was an argu-
ment about whether he ought to be called a constitutional law professor,
when he technically had the title of "senior lecturer" at the University of
Chicago. In part because he spent most of his time in the State Senate
in Illinois rather than as a full-time academic; he published nothing.
AUDIENCE MEMBER: Nothing on executive authority?
CHARLIE SAVAGE: No scholarly work on anything. But his an-
swers into the survey were quite detailed. The question is just: Is he go-
ing to stick to that? Can you trust a politician, you know? Maybe you
can. We will find out. It is going to be an interesting set of years here.
76. SeegenemllyMedellfn v. Texas, 128 S. Ct. 1346 (2008).
20091 Washburn Law Journal
But we are going to have another factor in play here. We are entering
another period of one-party rule in Washington. It does not matter
whether it is the Republicans as it was in the Bush years or the Democ-
rats as we are going to have now or as LBJ had in the 1960s. When you
have one-party rule in Washington, the constitutional structure breaks
down. We have this reverence for the Constitution as this sort of per-
fect document-the founders were geniuses-and it is not. It is a flawed
document. One of the ways that it is flawed is that the founders did not
anticipate that we would have political parties. In the Federalist Papers,
they specifically warned against factions. They wanted everyone to be a
free agent and, thus, if the executive pushed too hard, the self-interest of
lawmakers would cause them to push back. But that is not what hap-
pened. In fact, we got political parties almost immediately. We have
teams of politicians working together across state lines, across branches
of government to control policy outcomes, and that means that when we
have one-party rule, it sets up a conflict of interest.
The leaders of Congress have their own leader. That is their
party's leader-the president. Their interests are intertwined. They
need the party leader to do well so that they themselves will be returned
to power. That causes them not to push back when the White House
gets too aggressive, and it causes them to go easy on oversight. And, so,
I expect we are not going to have a lot of oversight of the Obama Ad-
minitration initially. What oversight we do have will probably be retro-
spective, looking back at the Bush years. I expect that will allow prob-
lems to fester in the executive agencies. In general, strong oversight
nips problems in the bud, and so I firmly am convinced we will have
problems.
As far as whether Obama himself will assert strong unilateral ex-
ecutive authority, it may be that he will not need to. It may be whatever
he wants done, Congress will just sort of rubber-stamp for him. One of
the mysteries of the Bush years on its surface was why he did not go to
Congress and just say I want the following power given to me. Because
they would have given it to him. Jack Goldsmith argues in The Terror
Presidency that is what Bush should have done, and he would have
avoided all these controversies. 77 The solution to the mystery of why
they did not ask Congress for authorization is that they did not want to
implicitly concede that going to Congress was necessary; in fact, they
wanted to demonstrate that the president did not need to go to Con-
gress. They adopted that strategy because of these long-term issues that
dated back to the post-Watergate, post-Vietnam era. This is what I was
talking about when I said they were willing to create extra political diffi-
77. JACK GOLDSMITH, THE TERROR PRESIDENCY: LAW AND JUDGMENT INSIDE THE BUSH ADMINISTRATION 206-08 (2007).
[Vol. 48 2009]
culties for themselves in order to achieve their policy goals in a way that
would also expand executive power. Obama appears not to share that
agenda, so he may just go to Congress to authorize everything he wants,
which may mean that on the surface, he will seem more modest and ac-
commodating, even if he ends up exercising extremely broad day-to-day
powers. 78
But that brings me to the first thing that you said-is it true that
executive power always ratchets upwards, since after the Civil War it
went down again? I think that the really relevant period is the modern
era, which is FDR to the present-with standing armies, with America
having its sort of hegemonic role in the world, with nuclear missiles, and
so forth. Now, even within this era, it was not consistent escalation.
There was the exception of the post-Vietnam and post-Watergate era-
the Ford and Carter Presidencies-a backlash moment which ended by
the Reagan Presidency. But I think that exception proves the rule, be-
cause it shows how difficult it is to swing the balance back the other way
and how quickly those forces dissipate, after which executive power
goes back to where it was and then starts ratcheting up again. Almost
all of the post-Watergate controls had already eroded away by the end
of the Clinton Administration with the exception really just of FISA
(Foreign Intelligence Surveillance Act of 1978), 79 and then FISA went
by the wayside within a year of the Bush Presidency. I think the history
of how this works is that presidents of both parties push the envelope.
Maybe not as systematically as the past one has done, maybe just when
they have some specific policy goal they want to achieve, like Clinton
and Kosovo, but they push the envelope. And then as far as each one
gets it, that becomes the baseline for the next guy and he pushes it a lit-
tle bit more.
Much of this is the kind of issue that never gets into court, because
no one has standing to sue over any of these sorts of questions most of
the time. That means that you are never going to get judicial resolution
of any of these issues. An aggressive president who is willing to simply
claim, "I can do 'x.' and then does it-unless Congress is going to im-
peach him over that, he gets away with it. That makes it all the easier
for the next president's Office of Legal Counsel to opine, usually in se-
cret, "It is well-established that we can do 'x' because we have been do-
ing 'x,' and let us keep doing it some more, or do it in these new in-
stances." This just keeps expanding and expanding and expanding.
So I think, in fact, the one-way ratchet is the right way of looking at
how presidential power has been escalating in the modern era. It is not
78. See, e.g., Jack Balkin, Are the Parties Dividing over Executive Power?, Balkinization, http:/lbalkin.blogspot.com/2007112/are-parties-dividing-over-executive.html (Dec. 28, 2007, 11:02). 79. FISA, 50 U.S.C. §§ 1801-71 (2000 & Supp. V 2005).
Takeover Return of the Imperial Presidency 324 Washburn Law Journal [Vol. 48
a pendulum that goes back and forth. It is a ratchet that is much easier
to increase than it is to roll back again. Even if you sometimes get a
president who is comparatively modest for whatever reason, that cannot
erase the historical and legal precedents that the previous, more aggres-
sive presidents have established. So sooner or later we will have an-
other aggressive president again, and that person will be able to easily
pick up where the last aggressive one left off.
Thank you very much. It has been my pleasure.
