Note: I intended to post this diary yesterday, but felt preempted by wardlow's excellent diary. At her invitation, however, I post this anyway, because the thrust of both diaries is that now is the time for progressives to take our experience and frustrations with the current administration and demand that the presidential candidates address the deeper questions that have not been asked in the past. And chief among these deeper questions is the nature of presidential power.
I do not recall from the 2000 election a single instance in which a candidate for president was asked anything about his (or her) philosophy of executive power. And yet, the likely composition of a Bush administration was much discussed, and the writings and speeches of the major players a matter of public record. The 'unitary executive', the 'project for a new american century', and Cheney's thoughts on future energy/foreign policy were all there to see. These writings and speeches were predicated on the very view of raw presidential power that we now see.
More below.
The question of the President's proper constitutional relationship with Congress and the limitations on presidential power imposed by the Bill of Rights form the foundation of many of our most substantive objections to George the W's reign. More importantly, the theory of the unitary executive in its fullest expression (which we are now seeing) serves as an effective check on almost all political efforts to rein in that power, leaving only the alternative of impeachment. Daily we see diaries offering theories of possible prosecutions, ranging from the Presidential Records Act, RICO, the Hatch Act, obstruction of justice, contempt of congress -- the list goes on. Yet each requires surmounting the obstacles presented by a President who wields all of the effective machinery of prosecution.
This difficulty is magnified by judicially-erected barriers, such as the 'political question' doctrine and 'congressional standing', which at best delay and at worst prevent resort to the courts to restore the balance between congress and the executive. In fact, we face a Supreme Court, as of this writing, which includes at least 4 Justices who have either participated in construction of the unitary executive theory, or who have accepted some of its principles in recent decisions. Our window to bring about a reversal of this trend is dwindling.
We therefore must demand that the 2008 candidates address at least the following questions:
- Does the United States Congress have a constitutional role in the use of our armed forces other than the decision to appropriate funds? If so, what is that role?
- If the Congress passes a resolution restricting the use of the armed forces, or directing their use only under certain conditions, are you, as president, bound by that resolution?
- Are you familiar with, and do you subscribe to the constitutional theory of separation of powers popularly known as the 'unitary executive'?
- Do you believe that the Congress, as a part of its oversight responsibilities, has the right and the authority to require the testimony, under oath, of any official or agent of the executive branch?
- What are the limits, in your view, of the 'executive privilege?'
- If the Congress enacts legislation that provides for the automatic and prompt judicial review of any assertion of executive privilege, will you commit to signing that legislation when it reaches your desk?
- If the Congress finds an officer or agent of the executive branch in contempt for failure to abide by a congressional subpoena, will you permit a referral of that matter to the United States Attorney responsible for enforcement, and will you interfere in any manner in the referral, other than as an amicus in a court proceeding?
- Is the President bound by the limitations on government power expressed in the Bill of Rights, as interpreted by the federal courts?
- Does the President have the authority to arrest a citizen and hold him or her indefinitely without charges and without judicial review? If so, what are the precise circumstances that would allow this?
- Does the president's power to make recess appointments include the authority to appoint, during a recess, a nominee who has been previously rejected by the United States Senate?
- Under the Constitution, are the Treaties and other international agreements ratified by the Senate a part of the supreme law of the land, and binding on the President?
- Will you use signing statements to nullify part or all of any congressional enactments?
- And lastly, many candidates have decried judges who 'legislate from the bench.' Do you believe the Constitution permits the President to 'legislate from the white house'?
I do not naively believe that any candidate's answers to these questions will serve as an effective restriction on their use of executive power once in office. Moreover, the answers to many of these questions, at least in my mind, are neither simple nor obvious. I do believe, however, that asking these questions and demanding that they be answered will be a good start.
It should not be permissible, for example, for a candidate to get away with an answer so absurd, and so shockingly disingenuous, as the one recently advanced by Mitt Romney, that he would 'want to hear the pros and cons from some smart lawyers.' Romney should have been asked on the spot, "which smart lawyers would you ask, and shouldn't they be running for president?" Nor should a candidate be permitted to skate by with some generalized answer, to the effect that the constitution says what it says.
Many of the questions posed above come from real life, with concrete examples drawn from the transgressions of the Bush administration. A candidate who is unwilling to address each question in a specific manner, should be directed to one of those very specific examples, such as this one: "In 2006, the Senate refused to confirm John Bolton's nomination to be ambassador to the U.N. President Bush then named him ambassador, anyway, as a recess appointment. Would you, under any circumstances use the power of recess apppointments in such a manner?"
Similarly, question 11, regarding the binding nature of treaties, comes with specific examples too numerous to list --most notoriously, perhaps, Abu Gonzales' torture memo. Candidates should be specifically asked, "is the United States (including its President), bound by the terms of the Geneva Convention?"
Some candidates may be so bold as to answer some of these questions. Some will provide true answers to none. But it is important for the american people to realize that these are important questions, and that the issues they represent are not going to go away with George the W. Demanding answers to these questions may also point the way to broader legislative measures that may be necessary to restore a proper constitutional balance. I personally would not leap at the prospect of amending the constitution in order to dispose of these issues. In my view, many of these problems lie within the realm of Congress to remedy, with the powers at hand. But now is the time to see where this debate takes us.
I would like to hear from you: what do you think of these questions; what other or better questions should be asked; and how can we continue to press these issues?