Power Play: The Bush Presidency and the Constitution
By James P. Pfiffner
Brookings Institution Press, 2008
299 pages, $28.95
"In America THE LAW IS KING. For as in absolute governments the King is law, so in free countries the law OUGHT to be King; and there ought to be no other."
--Thomas Paine, Common Sense
"To the extent that the Constitution and laws are read narrowly, as Jefferson wished, the Chief Executive will on occasion feel duty bound to assert monarchical notions of the prerogative that will permit him to exceed the law."
--Dick Cheney, Minority Report, Iran-Contra Committee
"The President is always right."
--Steven Bradbury, acting AG, Senate Judiciary Committee testimony
That the founders held a strong distrust of both tyranny and a fear of mob rule that resulted in the careful delineation and separation of powers in our Constitution has never been in dispute. What has been in dispute for 219 years is where those lines are drawn, and who gets to do the redrafting, when it becomes necessary.
James P. Pfiffner's book Power Play: The Bush Presidency and the Constitution, succinctly and convincingly lays out the historical backdrop for the development of our system of government, based on the rule of law, and just as convincingly presents his argument that the Bush administration has put that very system on a precipice.
In an engaging, though sometimes repetitive, discussion, Pfiffner (professor of public policy at George Mason University and the author or editor of a dozen books on the presidency and American government) presents the core historical development of the rule of law, the nature of executive power, the emergence and strengthening of individual rights along with the development of representative government in the form of legislatures and an independent judiciary. While most of us know the basics of the foundations of the rule of law from civics classes, still this litany is useful in providing a grounding for the understanding of just how much the weight of history--of the Magna Carta, of the English civil wars and revolutions extending back for centuries--is balanced on the actions one president took in several short years.
Pfiffner argues that, in pursuing an agenda developed by Cheney, Addington, Yoo, Bybee and others, Bush "abrogated the rule of law by taking actions not authorized by law and sometimes directly against the law."
--He created military commissions entirely within the executive branch and in doing so ignored U.S. laws that provided authority and procedures for establishing military commissions;
--He used the term "enemy combatant" to exempt the government from granting persons so labeled legal and constitutional rights;
--He denied the writ of habeas corpus to U.S. citizens as well as other detainees suspected of terrorism;
--He suspended the Geneva Conventions, which, because they were agreed to in a treaty, are the "supreme Law of the Land," according to Article VI of the Constitution;
--He authorized the interrogation of detainees using techniques that most of the world considers torture, and which violate the Geneva Conventions and U.S. law;
--He ordered the National Security Agency to monitor the communications of Americans without a warrant as required by FISA; and
--He asserted the sweeping right to ignore more than 1,000 provisions of public law because he deemed them to be in conflict with his authority as president.
It's a straightforward case, meticulously argued and backed with solid research and evidence. Pfiffner puts these efforts to expand executive power into constitutional and historical perspective. He also highlights the fact that these efforts were grounded in a dangerous philosophy of a "unitary executive" that extends far beyond the exigencies of the war on terror. This is particularly clear in his discussion of the administration's blatant and willful breaking of the FISA law, and the expressed and long-term effort by the executive branch to establish signing statements as a legitimate means of legislating.
In the case of the FISA law, he points out the testimony of former Qwest CEO Joseph Nacchio that he was approached by the NSA in February of 2001--months before the 9/11 attacks--to assist the agency in domestic surveillance without warrants. The argument put forward by the administration that the AUMF passed by Congress in response to the 9/11 attacks gave the president authority to conduct this surveillance is thus rendered meaningless--the administration and the president went into office assuming that they were above the law.
Likewise, Pfiffner details how the use of signing statements was advocated starting in the Reagan administration not just as means by which the president would signal his or her approval or disagreement with a law, but to "establish a record of usage . . . so as in the future to be able to point back to this usage and declare ipso facto they are part of the precedent of constitutional usage that should be accepted as part of an evolving constitution," (p. 201).
Pfiffner argues that Bush's actions, if allowed to stand as precedents, will encourage future presidents to ignore the legislative and judicial branches, creating a dangerous imbalance in the constitutional division of powers. He argues that this could lead to executive domination of the government. What he doesn't argue effectively enough, in my opinion, is that we are already most of the way there, hanging by the slim thread of a single, and often unreliable, vote on the Supreme Court. That Samuel Alito was one of the chief architects of the Reagan signing statement policy while serving in Reagan's Office of Legal Counsel (he wrote while there that a primary objective was to "ensure that Presidential signing statements assume their rightful place in the interpretation of legislation," [p. 201]), is more than a little disquieting.
Pfiffner recognizes that "[e]xecutive claims to constitutional power ratchet up; they do not swing like a pendulum, unless the other two branches protect their own constitutional authorities," (p. 243). But what he doesn't do is place a fair share of the blame for Bush's unchecked claim to constitution power where it necessarily lies: on Congress. In instance after instance, the Detainee Treatment Act, the Military Commissions Act, the Protect America Act (and, not included in the book because it went to print previous to passage), the FISA Amendments Act Pfiffner explains that the force of the arguments by the administration were just too strong for Congress to either resist or refute.
At this point, a companion book that details the abdication by Congress of its constitutional duties would be a welcome addition to the history of the past eight years. But, in the meantime, Pfiffner's book should be required reading for every Member of Congress, if for nothing else than to refresh their collective memory of just what that oath of office they take means. And, perhaps, to encourage them to do their duty now, and repeal the worst of the legislation they've capitulated on and, who knows, maybe even do a little investigating to find out how much this administration has done that we don't already know about.