The post 9/11 debate on presidential power has, inevitably, been overshadowed by the actual performance of the current president. I say “inevitably” but the confusion between the president and the presidency has greatly limited the value of the academic discussion, which has been unfortunate.
Consider, as an abstract proposition, the claim, which could be made at any time in American history, that “Because President X did Y [something bad], the presidency should be deprived of the power to do Y.” Stated in this bald form, the proposition is obviously false. No one thinks that because President Johnson mismanaged the war in Vietnam, presidents should be deprived of the commander-in-chief power. Nor does anyone think that because President Bush’s subordinates mismanaged the response to the Katrina hurricane, the presidency should be deprived of (statutory) emergency-response powers. Presidents have caused countless diplomatic fiascos, but no one has said that for this reason the power to engage in diplomacy should be lodged in Congress or somewhere else.
Why not? The answer is that the presidency is an institution that is occupied by a succession of persons, and the proper structure of this institution is independent of who happens to occupy it during a particular term (unless you have an extremely short time horizon). Of course, the behavior of the individual in power provides some evidence of how that presidency’s power can be used and abused, but one needs to take account of the evidence of the behavior of earlier presidents as well.
It turns out that nearly all of our presidents have been pretty ordinary people. Very few geniuses (fewer still after the era of mass democracy began), and a lot of mediocrities, at least, if one uses the standards that are regularly applied to presidents by academics and journalists. But I don’t think anyone thinks that the case for presidential power rests on the premise that the occupants of the offices will be extraordinary people. (The popular books about the follies of the Bush administration have countless precedents for all earlier administrations.)
As the founders understood (oops!), power not given to the presidency must be given to some other institution, and so, to stick within the framework of the federal government, the real question is whether we want to give power to the mediocre president, the mediocrities in Congress, the mediocre supreme court justices, or (I suppose) the mediocre heads of agencies. Or we could let the “people” handle the terrorists themselves.
To focus our intuitions, then, let us imagine that all the members of Congress are little Bushes (as people like Kevin Heller imagine him) – ideologues in part, practical politicians in part, but (apparently) not very smart and morally fallible or repulsive or whatever. The point is to avoid loading the dice and imagining that everyone in Congress is a Henry Clay (funny how rarely one hears any mention of who belongs to the current crop of congressional geniuses).
The case for giving emergency power to the president rather than Congress rests on the simple point that a multi-member body cannot act quickly, decisively, and secretly. Once we reject the assumption that the members of Congress are likely to be smarter than the president, I don’t see how any other factor would play a role.
The conventional critique of our views is not that Bush is an idiot, so we must be wrong, but that if presidents are given too much power, they will trample on civil liberties, favor supporters at the expense of others, or become dictators. The Bush-is-an-idiot crew overlook the fact that by the standards of earlier presidents, Bush looks rather good.
With respect to civil liberties, the infringements have been trivial compared to, say, Lincoln and FDR, and either less than, or on par with, the infringements that occurred during the early cold war and the Vietnam war. The worst one can say about Bush is that he has turned the clock back to the 1960s, though ordinary criminal law enforcement remains largely unchanged.
With respect to favoring supporters, there is no doubt that Bush, like most presidents, has tried to favor his supporters, but little of this has translated into war-on-terror policy. The main complaint has been the distribution of war-on-terror related pork, but this is business as usual in any administration.
With respect to becoming a dictator, Bush has, as nearly everyone acknowledges, been rather ineffectual as president. Crucially, unlike many past presidents (including Lincoln (through his generals), of course, but also, say, Johnson and Nixon) Bush has not used his emergency power to harass political opponents and their supporters.
Finally, in terms of overall competence in the execution of the war-on-terror, the Bush administration has been reasonably successful. We know that al Qaeda and its affiliates and epigones remain dangerous, as they execute attacks on the soil of other nations like Britain and Spain. Yet no such attack has occurred in the United States in six years. The real question is whether the Bush administration could have obtained the same result with less aggressive actions. I don’t know the answer to this question but I don’t think anyone knows. One can point to bungled investigations, implausible legal claims, and troublesome prosecutions, but this is just how governments operate, how they have always operated, and not much different from previous administrations – fallible people operating in a fog make mistakes. The incompetence claims are, I think, largely unsupported, no doubt infected by frustration with the Bush administration’s many other failures, most prominent among them that of the initiation and execution of the war in Iraq.
Meanwhile, Congress’s historical record is hardly sterling. Congress, too, has trampled on civil liberties (think of the McCarthy era) and favored supporters of the party in power. True, Congress has not acted in dictatorial fashion (at least, not since the Reconstruction), but then, as I said, a multimember body can rarely be an effective dictator. The beef against Congress is that it is weak, and no one today wants to be led during an emergency by a weak political institution, unless the alternative is extremely horrible. And, finally, Congresses have enacted a great deal of idiotic legislation.
Congress’s particular advantage is generally thought to be that it is a more representative institution, and thus perhaps confers legitimacy on the government in the way that president cannot. This is at best arguable. Arguably also, a many-minds style argument can be made that Congress aggregates information better than the presidency does, though I am skeptical about this. The president has greater control over agencies, and greater access to agencies’ information; agency heads know that their political fates are intertwined with that of the president, not that of Congress or any particular member of Congress.
Whatever the case, these advantages are less important for security issues than for other issues. This being the case, there is little or no public support for rolling back presidential powers (though there is a great deal of public support for having a new president). The president is weak but the presidency is as powerful as ever. What this means is that our next president, be it Obama or Clinton or Giuliani or someone else, will most certainly build, or at least rest, on Bush’s legacy. If a Democrat wins the election, you might expect some meaningless symbolic acts (such as the replacement of Guantanamo Bay with a hidden prison in Afghanistan), but don’t expect any changes in presidential powers. No serious presidential candidate, Taft-like, campaigns on a platform of limited presidential powers because no such candidate could possibly win.