An Exploration of Presidential Powers, both Real and Illusory

Yet another monumental event is happening, which seems largely unremarked in media. A historic legal case will soon come before the courts which will explore and clarify some of the most basic principles of the United State Constitution which define the most fundamental structure of the United States government. It is one of those things I love so well, simultaneously beautiful and terrifying. Government officials have danced around this precipice before, but one side always seems to give in before any binding determinations about the nature of our government are made. However, thanks to a mindlessly stubborn President we might at last experience this beautiful process, and its staggeringly potent outcome.

We are all familiar with the drawn-out inquiry into the firings of so many Federal prosecutors all at one time, by the Executive Branch. Congress, in their roll of oversight, wanted to know why this happened. Since their investigations began, Congress has uncovered a good deal of conflicting testimony and evidence, without being able to determine a reason or circumstance. Several high ranking officials within the Justice Department, which is within the Executive Branch, have resigned over this incident. Eventually, even the Attorney General stepped down. Even so, the Executive Branch has refused to turn over any documentation that would reveal why so many Federal prosecutors were fired en masse, while, at the same time, members of the Executive Branch called to testify before Congress refuse to answer questions which might shed light upon the issue. Some people have even refused to show up to testify at all. They claim “Executive Privilege” makes them immune to answering Congressional inquiry. Congress does not agree. And now, Congress has turned to the Judiciary Branch for a ruling.

This is brinkmanship of the highest order within the Federal government. Both angels and demons fear to tread upon those defining lines. Because once the Judiciary makes their ruling, it is very likely that the powers of one branch will become more limited, while the powers of another will expand. It is very risky. Normally, one branch will eventually offer a compromise acceptable to the other, before any ruling is made. The situation now is different. The Executive Branch has drawn a very hard line which so far has proven unmovable. They have agreed to allow some testimony and provide some documents to Congress, as long as only a tiny few members of Congress can see it, and those members must agree to forever keep silent about what they learn. Of course, this would, in effect, eliminate Congressional oversight, and would instead only be a token compromise with no substance, and therefore not a compromise at all.

But before we get into more detail, let’s get into a basic American History review. The Constitution is the defining document of our country. Amongst other things, it establishes the basic structure of our government. The Constitution is, ideally, inviolate. The government has no power that it does not grant. No law can be created counter to it. No action by government can violate it. Not even an interpretation of law can be made that does not honor it. The Constitution defines three branches of Government. The Executive Branch, headed by the President, the Legislative Branch, headed by Congress, and the Judicial Branch, headed by the Supreme Court. These three primary institutions are designed to “counterbalance” each other. Right now, this balance is being called into question.

The Legislative Branch is comprised of hundreds of elected officials who supposedly represent the will of the American people. It is the “people’s branch”, and, in many ways, it is the most powerful branch. Congress is the branch that creates and changes law that binds all United States citizens, including those within the Executive and the Judiciary. However, laws created by Congress cannot run contrary to the Constitution, and the Executive and Judiciary branches are constructs of the Constitution. Since Congress creates all legal structures and also controls all money, it is similarly tasked with making certain those structures are working as intended. This is where its oversight role comes into play. Congress must be able to see, in order to perform its Constitutional duties.

The Executive Branch is charged with carrying out and enforcing laws created by the Legislative Branch and head is also the Commander in Chief of the United States military. The Executive (President) cannot make laws, nor does the Executive have a choice about whether or not to see that laws are carried out. There is one aspect of “bleed-over” into Legislative powers: the President can pardon people for violating US law. Other than this, the President has no significant power whatsoever, other than the powers granted to him by Congress through acts of law.

The Judicial Branch has no power to create law, nor does it have any power to enforce law. The sole power of the Judicial Branch is to rule upon the interpretation or Constitutional validity of a law or action. The Supreme Court is the ultimate authority that determines whether or not something is Constitutional or legal, and clarifies any questions. Their rulings cannot be appealed. In all matters, the Executive Branch must accept the rulings of the Supreme Court. In matters of law, Congress must also accept Supreme Court rulings, or Congress can change the law. In matters of the Constitution, Congress must also accept the Supreme Court rulings, or Congress and all states within the Union must modify the Constitution.

As we can see, the Executive Branch is actually fairly weak. This is by design. Power was for People, not a head of state. Yes, the President as Commander in Chief controls the military forces of the United States, but military forces cannot be used within the United States (except under extraordinary circumstances, and then only in limited ways). And military personnel are sworn to obey and uphold the Constitution primary to their commanding officers. Over the years, Congress has granted the Executive Branch many additional powers through acts of law. Congress has also brought into existence many government organizations and placed them within the Executive Branch, where they fall under the President’s direction, in the name of efficiency. A single officer, like the President or his designees, can often cause organizations to run more efficiently than a large body, such as Congress, ever could. This makes good sense as long as everyone plays by the rules.

However, Presidents over the last several decades have often worked to extend the scope of their powers. Our latest President, George W. Bush, has not only worked feverishly to extend the powers of the Presidency, but also to hide away the Executive Branch from the rest of the government’s scrutiny, and hence the scrutiny of the People. People are supposedly the ones with power, not the head of state. And as the Executive moves further and further into shadow, it grows more and more difficult to see what the Executive is doing. Blindness removes power from People, allowing the Executive more. Spurred on by my own curiosity, I’ll share some of the things I’ve learned while exploring this trend.

One of the key components in the upcoming case filed by Congress is the “separation of powers” between the Legislative and Executive branches. Harriet Miers and Josh Bolten were subpoenaed to testify before Congress, but chose to ignore those subpoenas, citing something called “Executive Privilege”. Executive Privilege doesn’t really exist. It’s not defined anywhere. However, the Supreme Court recognized it when Nixon claimed it. Apparently, Presidents have to keep their conversations secret sometimes, so they will receive good information. I know, it only makes a little sense. But the Executive claims that Executive Privilege is something that has to exist to keep the separation of powers between the branches of government in place. In other words, the Executive can only function as a co-equal branch of government if it can keep secrets. We’re not talking “state secrets” here, either. We’re talking, Executive Privilege. Because I said so. And that’s it.

Executive Privilege means that the President doesn’t have to answer questions or subpoenas from Congress, nor be subject to search. In the Nixon case, the Supreme Court agreed, but only if there was a compelling national interest at stake, such strong national security issues. Which, in the case of Nixon, there was not. Nor does it seem there could be any concerning Federal prosecutors. These are practically uncharted waters with very little precedence to draw from. In a more recent decision in 2004, the Supreme Court noted that Executive privilege is an extraordinary assertion of power “not to be lightly invoked”.

One of the interesting aspects of the Miers and Bolten contempt case is that supposedly the President was not involved in any aspect of the Federal prosecutor firings, including granting any Executive Privilege to Miers or Bolten. Miers and Bolten apparently claimed Executive Privilege on their own under the advisement of White House counsel. This strangely stretches the notion of Executive Privilege beyond the purview of the Presidency itself to encompass other members of the Executive Branch. It is not clear what boundaries the White House believes the supposed notion of Executive Privilege extends beyond the President himself. Perhaps the the White House believes that all members and departments of the Executive Branch have a claim to this Executive Privilege, and that each of them can invoke that privilege on their own, even without the President. In that case, the Executive Branch is no longer subject to Congressional oversight. This is an important detail, and explains one of the main reasons why Congress feels the case is so important. The extraordinary assertion of power, the Executive Privilege, has been invoked scores of times over the past few years, for any number of things both large and small. It has had the effect of stopping valid legal proceedings in their tracks, including people trying to defend themselves in court, and it has stopped all manner of inquiry into very large questions of abuse and corruption both in the White House and government contractors. It was even used to stop an investigation into the “friendly fire” death of soldier Pat Tillman. It is now even being used to keep Executive Branch personnel from explaining why they are invoking Executive Privilege, and what, specifically, they are invoking it about. Instead of being an extraordinary assertion of power that should “not be lightly invoked”, the Executive Privilege has become standard operating procedure for the Bush Presidency. This alone is an enormous expansion of the Executive Branch’s power.

The issue of extending Executive Privilege to any arbitrary number of people within the Executive Branch is troubling enough. But it goes even further. President Bush has extended the privilege to President’s family members, even after the President’s death, which is how they will control access to all Presidential papers that leave the White House when the President leaves. The Presidential Records Act of 1978 made all Presidential records public property, to be released after a few years. When Reagan became President, he issued an executive order (EO 12667) requiring the archivist to clear all Presidential papers through the former President before releasing them. This was to be done so that the former President could claim Executive Privilege over them to keep them from the public. President Bush revoked that executive order, replacing it with another (EO 13233) which said the same, plus a little more. Bush’s version said that both the former President and the current President had to agree to any Presidential document’s release to the public. Not only that, but the new President must obey the wishes of the former President, even if the new President disagrees with the former President. And, if the new President agrees with the former President, then the current President must do everything within his power to keep the document secret. But it doesn’t stop there. Former Presidents, even if they die, can appoint family members or any group to represent that President with full Executive Privilege to withhold information on his behalf. There is certainly no legal precedent for this. His is a little nice, though. He goes on to say that there is a 90-day target date to respond to document requests from the public. And a 21-day target date for the former President to respond to Congress, and another 21-day target date for the current President. Not surprisingly, those dates can be extended indefinitely without any action or notification, too. Ooo. Secret, secret. So, I’m not really sure what the Presidential Records Act of 1978 is actually doing. It seems that President Bush believes he can override US law with an Executive Order. And all the while, the President believes that the Executive Privilege immunity wear can be handed out to anyone and their grandma.

Then I started wondering about these Executive Orders. Are they law? Are they more like royal commands that must be followed? Well, it turns out, neither, really. It’s just that some Presidents believe they are grander than they actually are. And admittedly, they can be pretty grand. An Executive Order turns out to be an order issued by the head of the Executive Branch to other people within the Executive Branch. They were primarily meant to clarify how the President wanted US law carried out, or for him to direct people within the Executive Branch. The vexing thing for this President, President Bush, is that Executive Orders cannot run contrary to US law, nor can they create or modify US law. Nor can they run contrary to the Constitution. I know, it’s frustrating and unfair. Go tell the dead men who wrote the Constitution, or change the Constitution. Oh wait, you can’t! Never mind. But that doesn’t seem to stop President Bush. He’s pushed the limits of Executive Orders far past their legal potency. For example, he’s tried gutting the Presidential Records Act with Executive Orders. He’s tried stopping Congressional earmark funding with Executive Orders. He’s even kept us in a perpetual state of national emergency with Executive Orders, and issued even more which call up special powers given to the President by Congress during times of national emergency to freeze or seize people’s assets.

In this respect, Executive Orders can carry the full weight of law: when Congress has bestowed upon the President specific or general legal powers. He can also cause a good deal of headache for people through Executive Orders, which command government agencies into action. It’s not law, but it’s a call to action. And you have to hope that the call to action is truly within the law, or that the people being commanded with Executive Orders have enough sense to disregard them if they are illegal. Which is not something our Justice Department did, the department that is charged with upholding the rule of law. The warrantless wiretapping program, which completely disregarded FISA, was done by Executive Order by the Department of Justice and ran contrary to US law. He claimed he issued the Executive Order contrary to US law by the authority of his wartime Presidential powers. Unfortunately, Presidential powers do not supersede Congressional law, even in wartime. If it did, why is he even bothering to try getting FISA changed now? By the way, Executive Orders are actually pretty weak. They can be overridden by a simple act of Congress or ruled invalid by the Judiciary.

But who enforces the rule of law, when the branch of government responsible for enforcing law, is the one breaking the law? Well, the Justice Department. However they are inconveniently part of the Executive Branch, whose Executive is breaking the law, and is their boss. Should that matter? No, the Justice Department can still go after the President. Why didn’t they? Well, the Justice Department was the department of the President that was breaking the law. It seems like we have a little snafu here, and it is up to Congress to correct it. But the Executive just keeps throwing up, Executive Privileges left and right, mixed and tossed thoroughly with state secrets, to thwart any Congressional oversight. Hence, the FISA legislation problem we’re facing right now, with the President all livid because the House of Representatives isn’t giving him exactly what he wants, unlike the Senate.

Here we get to see into the very ugly underbelly of our current Executive and his Branch. Even with a new Attorney General, the Justice Department is wholly owned by President Bush. You can thank California Senator Diane Feinstein for that, being the shifting force (the weight of at least a cow) for Mukasey’s brain-dead confirmation. The Justice Department will do nothing about the illegal wiretapping. Mukasey also sent a letter to Congress saying the Justice Department refuses to prosecute Meirs and Bolten for contempt of Congress, even though they are bound by US law to do so. Their reason being, Executive Privilege. And now, for the first time, I’m actually proud of House Speaker Nancy Pelosi. She’s had enough, and is taking the Executive and Congress before the Judicial to resolve the issue once and for all. Considering all rulings to date regarding Executive Privilege, the Executive really does not stand much a chance at prevailing. And if they do not prevail, we can be reasonably certain that it will open up a floodgate of Congressional action against the Executive.

Execute Privilege is one thing. It is undefined, dubious, and patently weak when brought before the Judiciary, in relation to Congress at least. Executive Orders are have no effect whatsoever upon Congress. State secrets, on the other hand, are quite different and far more compelling. Interestingly, state secrets were created by Congress as a means to withhold information that might jeopardize national security if revealed to the public. The concept was intended for use in criminal or federal cases where the government needed to keep some secrets. There is no such thing as state secrets in civil cases, such as victims wanting to sue telephone companies for illegally spying on them. But there is court precedence that establishes a concept of state secrets, but only as it applies to specific evidence. This is a subtle yet important distinction. The Executive has been feverishly trying to get people’s cases thrown out of court before anything is even heard by the court by invoking state secrets. And, they have been successful on many occasions. State secrets are an evidentiary rule, however, and as such, they cannot be used to outright dismiss an entire case from the get-go, but only to exclude specific evidence. Courts have been very accommodating of the Executive when state secrets are invoked. Lately, however, they are meeting the Executive with growing skepticism. It hasn’t helped the Executive that many older cases have subsequently shown that no state secrets were involved, even when the Executive claimed state secrets. They were shown to be “cover-ups”.

In a way, state secrets are very like Executive Privilege. Both concepts arise from the Executive’s claim to “separation of powers” between the Executive, Congress and the Judicial. The bad part is, you just have to take the Executive’s word for it. Oh, can’t do that, Executive Privilege. Nope, sorry, state secret. And that’s that. Can you trust that, when the Executive has done so many illegal things? Courts are beginning to ask that question. And that could mean disaster for the Executive. More and more, courts are requiring the Executive to produce the state secret in question, for the judge to privately view, to make his own determination as to whether a state secret is truly involved. An interesting example coming up is the case of Joseph Nacchio. When the Executive started illegally wiretapping us all, only one company refused to comply, because they believed it was illegal. That company was Qwest Communications, which happens to be, proudly, our phone company here (I never imagined I would say such a thing). Shortly after they refused, Joseph Nacchio, the CEO of Qwest, was indited by the federal government for stock fraud, and convicted. A few months ago he appealed his conviction, claiming it happened as a punishment because he refused to comply with an NSA secret program which he rightly believed was illegal. It will be very interesting learning what information will come out of this appeal. Apparently, the NSA was already wiretapping us all before the 9/11 disaster even happened.

The principle of state secrets can be very dangerous. Like Executive Privilege, it can leave people blind when they try to see what the Executive is up to, and keep them from every finding justice in a court of law. And the Executive can, at least historically, invoke either one on a whim, without producing anything. Unless a court insists on seeing the hidden things anyway, there is no check on this “fabricated” power. The only other check is impeachment. Happily, new legislation has been introduced in the Senate to better define what, exactly, constitutes a state secret. It is Senate Bill S2533 – the State Secrets Protection Act. It allows people to have their day in court, despite any arbitrary efforts of the Executive.

Another somewhat bizarre yet effective way our current Executive has reached for more power is through the use of “signing statements“. Again, there is no such thing. But Presidents have used them for quite some time. Originally, Presidents who received a bill from Congress might place a signing statement on that bill as he signed it into law, which represented his interpretation of what the bill meant, and so would reveal how he intended to carry it out. Our current President, in the true spirit of megalomania, has expanded, at least in his mind, the power of signing statements. President Bush uses signing statements as if they were line-item vetoes, where he can say this or that thing in the bill is not something he will listen to, or do. He does this despite a prior Supreme Court ruling that the line-item veto was unconstitutional. He also will often use a signing statement to say that this or that part of the bill is just fine, but that it doesn’t apply to him, as Executive. For years now, President Bush has completely ignored entire chunks of bills that he didn’t like, even though, by signing the bill, he passed it into US law. This, to me, is the height of hubris. The Constitution says that the President must sign a bill fully into law, or else send it back to the Congress, where the Congress either accepts defeat, or passes it into law anyway, without his signature. There is no power anywhere in the Constitution, the US Code, or any Act that allows the President to alter a bill, or choose not to enforce some of it. Nearly all legal scholars say that doing so is illegal. But it does give him the opportunity to be a weasel, and that is always embraced. It is ironic that he claims to be concerned about the separation of powers, though, when he attempts to legislate this way. He even sometimes slips Executive Orders into his signing statements.

So, what does it mean when we have a President that does not have to tell us anything, nor show us anything, and believes he can create or alter law by issuing Executive Orders or signing statements, and who does not believe US law applies to the President? Did I mention that we have been in a perpetual state of national emergency his whole Presidency? And that he commands our military forces?

Well, fortunately, the Posse Comitatus Act keeps all federal troops from being used on US soil (except the Coast Guard). And the Insurrection Act limits them even further. They can only be used in some fairly extraordinary circumstances. However, these acts were weakened considerably recently, but restored, for the most part, in the 2008 Defense Appropriations Bill. Unfortunately, none of these protections apply to the use of various private military forces, like Blackwater, which is heavily used by the government, and very well funded and equipped. There have been ongoing and growing pressures to erode Posse Comitatus and the Insurrection Act, as well as the continued expansion of private contractors like Blackwater. These private forces have already been widely used on US soil.

Finally, just for good measure, a last bit of worry, if you are so inclined. Habeas Corpus has been suspended by our Presidents before. Habeas Corpus is our ability to challenge our arrest or convictions of crimes, or to challenge our detention for whatever reason. Basically, to face our accusers, who must present evidence, and have our day in court with a chance of freedom. Fortunately, the Judiciary ruled that this cannot happen again, as long as there is a court that remains open. I suppose that is reassuring.

It’s a little unnerving seeing even this small subsection of what President Bush has done with his Presidency. If I were to learn this at the beginning of his term, I would be downright frightened. Thankfully, his last term is coming to an end, and the poor man looks very worse for wear. I think he’s a little tired of being the President. I think he might be looking forward to relaxing in a nice, cool pool of money or riding some horse on a ranch.

At least he revealed many weaknesses in our system that Congress must address, and quickly. Hopefully our next President will be somewhat more sane, intelligent, open and helpful to others. And if we’re lucky, they’ll have a good, healthy, much-needed dose of humility.

Added: Here’s a little comic sorta related to this.