HOW THE WAR ON TERRORISM IS SHRINKING CONGRESSIONAL POWERS
By JOHN W. DEAN
Columnist
FindLaw
Friday, Oct. 11, 2002
[This is Part One of a two-part series by Dean on threats to Congressional power from the White House and the Supreme Court during the war on terrorism. Part Two will appear on this site on October 25. - Ed.]
Not since Richard Nixon's presidency have the powers of Congress been in greater jeopardy. Not only is the Bush White House seeking to expand presidential powers at the expense of Congress, but the conservative gang of five on the U.S. Supreme Court are busy trimming Congressional powers directly.
The Bush-Cheney efforts, along with those of the Rehnquist-Scalia-Thomas-O'Connor-Kennedy bloc, are raw power politics and an example of short-sighted decisionmaking. These efforts certainly raise the stakes for the November 5 Congressional elections.
These moves to curb Congressional authority also raise the question why. In Part One of this two part-series, I will look at the threat to Congressional power posed by the Bush White House; then, in Part Two, I will turn to the threat posed by the Supreme Court.
The Man Behind The White House Power Plays
Clearly, Vice President Dick Cheney is the force behind the White House's effort to enhance presidential power, and limit the powers of those on Capitol Hill. This is evident because President Bush simply does not possess the mental acumen, or experience, to play the game his White House has instituted; but Cheney does. This is not to say Bush doesn't embrace the undertaking, for he obviously does, but simply that Cheney is almost certainly the moving force behind it.
Indeed, Cheney has all but admitted the point. "In thirty-four years, I have repeatedly seen an erosion of the powers and the ability of the president of the United States to do his job," Cheney told ABC's "This Week" in late January.
His reference to "thirty-four years" is quite clear. About thirty-four years ago, in 1969, Dick Cheney joined the Nixon Administration - serving in a number of positions at the Cost of Living Council, and later the Office of Economic Opportunity. When Nixon was forced from office, Cheney helped Vice President Ford make the transition to the Oval Office and in 1975, Cheney became President Ford's White House chief of staff.
Cheney's reference to the erosion of presidential powers thus appears to relate to the Nixon presidency and Watergate, and then to the Reagan presidency and Iran-Contra. Accordingly, one might at first wonder if he was referring to the Independent Counsel Law. But that law has expired. So while no law eroded presidential powers more, nor made it more difficult for the president to do his job, that the Independent Counsel law, that law cannot be Cheney's target.
Nixon's Treatment Of Congress, and How It Likely Informed Cheney's Views
What then is Cheney's target? History suggests that it is probably what he sees as the expansion of Congressional power vis-a-vis the President. Besides the folly of the Independent Counsel law, this perception is probably what bothers Cheney most - and what he would most like to remedy.
Cheney watched Nixon "throw down a gauntlet to Congress, the bureaucracy, the media, and the Washington establishment and challenge them to epic battle" - to quote the disgraced former president's memoirs. But for Watergate, Nixon would have succeeded.
Then-Speaker of the House Carl Albert, a Democrat, pleaded with Congress to halt Nixon's "accelerating usurpation of power by the Executive branch . . . these wholesale executive invasions of legislative powers and responsibilities." He claimed the Republican President was creating a Constitutional crisis by ignoring a Democratic Congress. Senate Majority Leader Mike Mansfield (D-MT) shared this concern, stating that "the people have not chosen to be governed by one branch of government alone."
Nixon was ignoring Congress in four areas. First, he refused to spend money the Congress had appropriated for programs he didn't believe in, simply impounding the money. Second, he ignored Congress's efforts to get him to cut back or end the war in Vietnam, often increasing and widening the war when they were in recess.
Third, he regularly invoked executive privilege, thus denying Congress information it sought as aid in its job of conducting oversight of the Executive Branch. Fourth, finally, and in what was probably his most offensive act of the four, Nixon implemented a total reorganization of the Executive Branch by executive order. The result was to give Congress no say over departments and agencies that had years earlier been created by Congress.
Erosion Of Presidential Powers: Congress Takes Back Power Post-Watergate
Congress's anger at Nixon's chutzpah on stilts was one reason it so enthusiastically launched its investigation of Watergate. Congress exploited Nixon's vulnerability in self-defense. Had Nixon not crippled himself as President by overtly and criminally abusing his powers, it is doubtful Congress would have been able to regain its own powers, which had been earlier weakened by Nixon.
But with Nixon on the ropes, Congress passed new laws restoring the balance, while pursuing a series of oversight investigation of the Executive Branch that pried loose the governments best-kept secrets.
For example, Congress ultimately surfaced information that even Nixon had been unable to obtain from the CIA - the "family jewels" which included the bungled efforts to assassinate Fidel Castro.
Numerous New Laws Restore Congress's Powers
No new law was more important than the Congressional Budget and Impoundment Control Act of 1974, which Nixon was forced to sign (knowing his veto would be overridden) a month before leaving office. This law put Congress on an equal footing with the Executive branch in making budgetary decisions, and preventing a president from refusing to spend as directed by Congress.
Also - overriding Nixon's veto - Congress passed its War Powers Resolution, which was designed to force presidents to seek Congressional approval before for sending American troops to do battle. This law, which presidents dislike, reminds them that the Constitution gives Congress exclusive power to declare war (a point they have often ignored, but that still stands, as I have discussed in depth in an earlier column).
When the Watergate Special Prosecutor took Nixon to court with a very narrow subpoena seeking his secret Oval Office tapes of conversations with his aides about Watergate, the Supreme Court used the opportunity to write the law of executive privilege. It ruled against Nixon, and forced his resignation.
Afterwards, Congress proceeded to simply take all Nixon's tapes from him. That prevented any claim of privilege and precluded Nixon's ability to destroy them and the historical record. Congress also enacted a law that presidential papers belong to the American people.
Finally, Congress passed the Independent Counsel Law in the aftermath of Watergate. Through that now-expired law, Congress was able to instigate its own criminal investigations and prosecutions of high level Executive Department officials. Only because the law seriously gored the oxen of both Democratic and Republican administrations did Congress let it die.
After Watergate, Congress moved from its lowest power point back to a more normal posture vis-a-vis the Executive Branch. These laws represent the "erosion" of presidential powers that Cheney has witnessed, from both ends of Pennsylvania Avenue. In truth, they are more accurately described as a "restoration" of power previously stolen by Nixon from Congress.
Cheney's Criticism of the Iran-Contra Investigation
When Dick Cheney was a member of Congress, the Iran Contra scandal erupted. During the scandal, it should be recalled, Cheney became President Reagan's principal defender in Congress.
Cheney served as a minority member of the special Iran Contra Congressional committee investigating the violation by the Reagan administration of the laws prohibiting sale of weapons to Nicaraguan rebels. In 1987, the committee issued its final report - charging the Reagan administration with "secrecy, deception and disdain for law." But Cheney dissented.
In a telling rebuke, Cheney criticized the administration for letting Congress exert control over Central American policy, and banning the sale of weapons to Nicaraguan rebels.
Plainly, Cheney thinks presidents should not only execute the laws, but write them as they wish they had been. Never mind that Congress has passed a law the President has not vetoed, or as to which his veto was overrided. It is still up to him whether to abide by that law, Cheney seems to believe.
Cheney's Current Tactic: Block Congressional Information Requests
Cheney's drive to halt what he perceives as an erosion of presidential power has been most apparent in his effort to block Congress from obtaining information about Executive Branch activities.
Cheney is forcing the Government Accounting Office to go to Court to obtain even the most minimal information about the work of the Energy Task Force, forcing an unprecedented lawsuit which is currently pending. (I discussed the suit in depth in a prior column.) But this is only the most visible of Cheney's efforts; after all, he is a man who prefers to work behind the scenes.
I'm told by Washington journalists and scholars who daily seek information from the Executive Branch as part of their jobs and research, that making GAO file a lawsuit is merely the tip of the iceberg. Far more broadly, Cheney seeks to place a blanket freeze on information.
For example, provisions have been added to the USA PATRIOT Act, and appropriations legislation, that in effect create an unofficial "official secrets act." (An official version of such an Act was vetoed by President Clinton.)
Meanwhile, Cheney only extends his cheek in downplaying his own aggressiveness in creating a blanket of secrecy. It is the information-seekers themselves, according to the Administration, who are the aggressive ones. Thus, Dana Milbank of The Washington Post recently reported that "n the fight over the energy documents, the Bush administration has made an ... argument that it is the victim." And the Vice President's lawyer is taking the position that Congress does not even have authority to institute legal action against the Vice President or President.
If GAO loses its lawsuit, that will virtually put Congress out of the business of oversight over the Executive Branch. (And even if it wins, Cheney will have successfully delayed disclosure.)
A court loss for GAO thus will mean that there are no real checks whatsoever on the President or Vice President - for it is impossible for Congress, or the public, to exercise oversight over that of which it is not even aware. Such a judicial decision may provoke as serious a constitutional crisis as Watergate - thought this time the federal judiciary, not the President, would be at fault.
While I can't imagine such a decision being issued, I couldn't have imagined Bush v. Gore ahead of time either.
Cheney's Effort To Rearrange Government Is Misguided
My first reaction to Cheney's efforts to block access to his Energy Taskforce information was that he must want to hide the fact that the energy industry had virtually written the Bush administration's energy policy. By now, however, everyone knows that happened, so it is obvious there is something far more significant in play.
Cheney's efforts to block access to information appears more strategic than tactical. By that I mean Cheney is not fighting only a single, specific battle (to protect Energy Taskforce information). Rather, he has launched a war on Congress (forget the Energy Taskforce, Congress has no power to even request such information in the first place).
Cheney apparently wants to turn the clock back to the days of the Nixon administration, before Watergate, when Nixon sought to make Congress merely another administrative arm of the presidency.
Of course, because such a power shift would be strikingly Nixonian doesn't automatically mean it is evil. Not everything Nixon did was illegal, nor done without the public good in mind. But doing anything with Nixon as a model, or precedent, calls for the closest scrutiny, for Nixon had little respect for the mechanic of government.
Indeed, one of the reasons Nixon was attracted to foreign policy was that an American president is largely free from domestic constraints when he steps on the world stage. Nixon preferred unilateral decisionmaking, both on the domestic and international stages.
There is no question that Congress makes life difficult, sooner or later, for every president. Powerful arguments can be made that we have become what is, in essence, an administrative state, with the people selecting a new top administrator every four years. That may lead one to ask: Why not give the top administrator all the power and authority necessary so that he can most effectively administer the nation's affairs? This seems at the core of Cheney's contention.
Why Dramatic Expansion of Executive Power Is Profoundly Unconstitutional
Clearly Cheney wants greater powers for the presidency. There is only one problem, and it is spelled out in those sheets of parchment where the Framers laid out our system of government. They rejected monarchy, even a temporary king or queen. (George Washington had no interest in being a King.)
They also rejected even a single-branch system of democratic government, insisted on the checks and balances of two legislative houses and an independent judiciary. Our government derives its power from the people. That power is shared at federal, state and local levels, and further divided within branches at every level.
The men who designed this government did not have efficiency in mind. To the contrary, they divided the powers of government to make certain no one had too much power. They knew the cost would be delay, negotiation, and compromise, but they believed the expense modest for insurance against tyranny.
Cheney Opposes Even Limits on Presidential Power Meant to Curb Misconduct
Congressional and Executive power sharing has ebbed and flowed since the nation's founding. We have had periods when the Congress dominated, like that following the Civil War. Similarly, there have been times when the Executive dominated, as during the presidencies of Lincoln, Teddy Roosevelt, Woodrow Wilson and Franklin Roosevelt.
The erosions of presidential power that concern Cheney have all arisen from misconduct and abuses of power by the presidents involved: Nixon, Reagan, Bush and Clinton. That hardly makes a compelling basis for their restoration.
From this observer's point of view, Cheney's efforts are unnecessary. If anything, it is the presidency that has become too powerful. It is also misguided as a matter of political strategy. History shows that every time a modern president reaches for more power at the expense of Congress it ultimately raises Congressional ire. This brings inevitable repercussions, sooner or later.
Rather than the President's getting more done, he actually gets less accomplished. And given the fluke that put the Bush administration in power, Cheney hardly has a mandate for realigning power in Washington.
In Part Two of this series, I will continue this examination of efforts to reduce Congressional powers - this time focusing on limits imposed by the Supreme Court.
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John Dean, a FindLaw columnist, is a former Counsel to the President of the United States.
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