We may now be entering a similar period of overreaction. Almost every week brings fresh revelations of abuse of presidential power by the Bush administration. The latest news, broken by the New York Times, is that in 2005, the Justice Department, having supposedly repudiated the infamous “torture” memo, issued at least two more memos authorizing even more extreme practices, without informing key Democrats in Congress. This White House truly is without precedent. Past presidents who took extraconstitutional actions in time of war, like Abraham Lincoln and Franklin Roosevelt, did so openly and claimed those powers only as emergency measures. Bush, by contrast, has acted largely in secret and has claimed these powers as inherent to the presidency. Historically, presidential author- ity, once it expands, seldom contracts. So there’s a real danger that Bush’s successor, whoever it is, will pocket the enhanced power Bush has asserted. Indeed, as Rachel Morris notes in this month’s cover story, at least one candidate, Rudy Giuliani, will likely seek more (see “Rudy Awakening,”).
But there’s also the opposite risk: that, because the Bush administration has stepped so far outside legal bounds, future presidents will feel they must dwell too far inside legal bounds. Such behavior may please some constitutional scholars and newspaper editorial boards. But the truth is that great presidents, for the good of the country, have often negotiated the outer limits of the law. In 1940, FDR overrode the will of an isolationist Congress by crafting a controversial “executive agreement” that allowed the U.S. to provide Great Britain with destroyers it desperately needed to stave off Hitler. In 1948, Harry Truman circumvented filibustering southern senators by issuing an executive order integrating the armed forces.
The need for inventive executive action presented itself even during the supposedly quiescent 1990s. In late 1994, the Mexican peso collapsed, threatening a global financial meltdown. When Congress refused to support a White House request for an emergency $40 billion package of loan guarantees, Bill Clinton unilaterally extended a $20 billion line of credit to Mexico by tapping the Exchange Stabilization Fund, an obscure federal account that presidents had hitherto used only to shore up the dollar. Many conservative Republicans and labor-oriented Democrats cried foul, but Clinton’s move had the desired effect: the peso stabilized, and Mexico repaid the loans ahead of schedule.
Clinton faced such a hostile and aggressive Congress that sometimes his only defense was to go on executive offense. In 1996, after vetoing numerous bills that would have allowed coal mining companies to dig up remote and pristine tracts of public land in southern Utah, a fed-up Clinton declared 1.7 million acres of that land as the new Grand Staircase-Escalante Monument, thus protecting it from further development. He did so by invoking the 1906 Antiquities Act, a law originally meant to give presidents the power to safeguard land with sites of significant historic or scientific value. The Utah land contained such sites, and previous presidents had similarly used the Antiquities Act to protect large wilderness areas (the Grand Canyon National Park had started off this way), though never an area so large in size. Conservatives went ballistic. Rep. Duncan Hunter called Clinton’s move “something that I think would happen in the former Soviet Union or some Third World dictatorship.” Hunter would later become a staunch defender of George W. Bush’s right to torture terror suspects and tap domestic phone lines without warrants.
The next president, if a Democrat, will probably have a Democratic-controlled Congress to support his (or her) agenda. But considering that Senate Republicans this year have seen fit to utilize the filibuster at three times the normal rate, a Democratic president can expect unprecedented efforts to block, for instance, his or her nominees. Will that president listen to pundits on the Washington Post op-ed page who will no doubt condemn the use of recess appointments on the grounds that Democrats criticized Bush for doing so? Or will the new president recognize that just because Bush overutilized this prerogative is no reason why another president can’t use it when appropriate, as when Bill Clinton overrode homophobes in Congress to name the openly gay James Hormel as ambassador to Luxembourg?
George W. Bush has definitely given new meaning to the term “the imperial presidency.” But as Arthur Schlesinger Jr. wrote in his book on the subject, “The answer to the runaway Presidency is not the messenger-boy Presidency.” American democracy, he said, “must discover a middle ground between making the President a czar and making him a puppet.” Here’s hoping the next president finds that middle ground.