Partisanship has been a part of the American experience since 1787, but a relatively new conception of the presidency has taken a toll on the office regardless of whether the occupant is a Republican or a Democrat. President John McCain or President Barack Obama can expect to be attacked not only in unreliable internet blogs and by an increasingly superficial news media, but by the courts as well. Conspiracy theories dominate both sides of the partisan divide, perhaps more than ever, with each side believing that assertive presidential actions are somehow “criminal” and that the courts must intervene to compensate for congressional “passivity.”
Both George W. Bush and Bill Clinton had their scandals, but many of the “scandals” amounted to nothing, although they did produce a windfall for various Special Prosecutors along with the EIB Network and Countdown with Keith Olbermann. Both presidencies rightly invoked executive privilege to protect internal White House policy debates: President Clinton for Hillary Clinton’s health care task force, Bush for Vice President Cheney’s energy task force, and both were lambasted for this “abuse” of power. Clinton attempted, as he should have, to extend executive privilege to his Secret Service detail, only to be rebuffed by the courts. Both were accused of using military force to distract from their domestic political problems. Arguably, Bush’s alleged abuses of power rise to a higher level than Clinton’s, although it is also arguable that many of Bush’s “abuses” were the result of wartime, or at least a near wartime, situation. Nonetheless, both presidents were subject to judicial rulings curtailing legitimate exercises of presidential authority. These rulings provided fuel to partisans convinced that their opponents were engaged in illegal actions.
The slide toward the criminalization of presidential politics began in Watergate era, although the Supreme Court’s decision in Morrison v. Olsen in 1988, where the court upheld the constitutionality of independent counsels, accelerated the process. By the end of the Clinton administration, after years of investigating land deals and the cover-up of an extramarital affair, Justice Scalia’s lone dissent in the Olsen case was partially vindicated: “I fear the Court has permanently encumbered the Republic with an institution that will do it great harm.” It did do great harm, but fortunately not permanently. When the Supreme Court ruled in Clinton v. Jones (1997) that President Clinton must testify in a civil suit unrelated to his actions as president, the judiciary again overreached, and unleashed a whirlwind culminating in a failed impeachment. And now we have the recent Boumediene v. Bush (2008) case—regardless of your stance on the rights of non-combatants, the court in this instance granted itself a role that throughout much of its history it left to the elected branches. This was judicial activism at its worst: the court’s “political questions doctrine,” the idea of deferring to the elected branches of government on matters falling under their purview, is, for all practical purposes, dead. Simply put, Congress could, among other things, set the rules regarding the treatment of non-combatants, or shut down Guantanamo tomorrow if it chose to do so.
The current debate over these issues would be enhanced by an understanding that expansive notions of presidential power, particularly in the national security arena, are as old as the American Constitution. The authors of The Federalist Papers argued for an “energetic executive” characterized by “decision, activity, secrecy, and dispatch.” Thomas Jefferson’s conception of executive power would have inflamed a 19th century “blogger”: “On great occasions every good officer must be ready to risk himself in going beyond the strict line of the law,” and he added that there were “extreme cases where the laws become inadequate to their own preservation, and where the universal recourse is a dictator.…” Lincoln suspended habeas corpus and was branded a tyrant, while Teddy Roosevelt derided the view that the president could not act “unless he could find some specific authorization for it. My belief was that it was not only his right but his duty to do anything that the needs of the nation demanded.… I did not usurp power, but I did greatly broaden the use of executive power.…”
If the nation is celebrating the wrong presidents then a debate in this election year regarding the appropriate parameters of presidential power would benefit both the candidates and the country. Or we can continue to muddle along, condemning legitimate exercises of executive power and encouraging the judiciary to preempt the powers of the elected branches of government. While President Clinton and President Bush both made mistakes, the fact is that failure is not criminality. While both had their scandals, so did their predecessors. Their partisan detractors to the contrary, both acted in a manner consistent with the principles and practices of their presidential forebears. If you believe that either of these men are criminals, then have the intellectual honesty to re-evaluate the 40 men who preceded them. No one wants an “imperial presidency,” but one should want a presidency checked by Congress, not the courts. Politics, never a vocation for the pure and fainthearted, is nonetheless preferable to government by judicial fiat. Short of this, we might as well sandblast Mount Rushmore and replace Jefferson and his friends with Justice Anthony Kennedy and his colleagues.
Stephen F. Knott is an Associate Professor of National Security Studies at the U.S. Naval War College. The opinions expressed here are his own.