Gene Healy, author of The Cult of the Presidency (September 22-October 3)
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I want to introduce Gene too. As Abby and I just posted on the blog (http://www.librarything.com/blog/2008/09/author-chats.php), Gene was a college friend of mine at Georgetown. He was an engaging, intelligent and funny guy then, and is so today. (He also looks exactly the same, which is extremely irksome.)
If you don't have easy access to the book, I encourage you to give a listen to one of his recent C-Span appearances (http://www.cato.org/videohighlights/index.php?highlight_id=133 and http://www.booktv.org/program.aspx?ProgramId=9672&SectionName=Politics&P...). His page at Cato has a number of radio interviews too (http://www.cato.org/people/healy.html).
So, welcome to Gene, and let me raise the first question:
Stipulating that the growth of executive power is at odds with the Constitution and good government, it is also, as you say, a "red team/blue team" issue. (When a Republican is president, Republicans can't get enough of executive power and Democrats talk of limits, but as soon as a Democrat's in office, the situation flips.*) Given this, given the long upward drift of executive power, given that "metapolitics" can't capture public attention,** given no obvious mechanism for stopping the process, why write the book? Many speak of presidential power as not justiceable. Is it "politicable"?
*Labile repositioning is not unknown on LibraryThing either, although I risk resurrecting Edwards and Palin threads by mentioning it.
**The exception would be, I think, the term limits movement, but they have a concreteness that being against executive power does not. And the term limit movement is now almost dead.
Thanks much for the kind words. It's the clean livin' that keeps me young.
So, you ask, why write the book if the problem it addresses may be intractable? Well, I'm not a Marxist, and so I have a fair amount of humility when it comes to predicting how the historical dialectic will work itself out. So I'm not sure it can't be changed. And if the world can be changed, then accurately describing what's wrong is the first step toward changing it. Plus, the modern presidency repulses me, and railing against it (even soberly and with footnotes) is therapeutic.
Many of those who share my politics (libertarian) are given to pessimism, and take a perverse pleasure in believing that the world is going to hell. I have those tendencies as well, but I try to self-correct. I do that in the last chapter of the book, which I'll excerpt a bit here:
"At times—especially during presidential election years—Hazlitt’s suspicion that we’re hard-wired to worship kings seems depressingly accurate. But the American Revolution—the primal fact of our national identity—argues against that sort of despair. And promising developments in our political culture over the last 40 years suggest that we’re not condemned to such a fate. The Spirit of ’76 lives on—even if manifests itself in thoroughly modern ways.
Civil libertarians and constitutionalists often talk about the post-9/11 presidency as if “It’s Midnight in America.” Given George W. Bush’s insistence that the executive branch cannot be bound by law, and the considerable success his administration has had in pressing that claim, that pessimism is perfectly understandable. But a little reflection should serve to put the last seven years in perspective. In a way it's astonishing that 9/11 didn't bring about a clampdown much worse than anything we've seen thus far.
In past wars, few Americans questioned the president's right to suppress dissent or abrogate constitutional protections. In World War I the Wilson administration locked up anyone who dared question the war, and intimidated anyone who even thought about it. During World War II, home front life tended to go easier for anyone not of Japanese descent. Even so, Americans were quite willing to endorse departures from settled constitutional norms.
In 1942, when FDR ordered secret military trials for the enemy saboteurs involved in the Quirin case, the public reaction was overwhelmingly supportive. Although one of the captured German agents was an American citizen, the New York Times, the Washington Post, and other publications applauded the president's decision. When the case reached the Supreme Court, even the Nation welcomed the Court’s ruling that "unlawful combatants," including Americans, could be tried before a military tribunal.
Sixty years later, when George W. Bush announced that he intended to use military tribunals to prosecute noncitizen terrorist suspects, the same publications denounced his decision as a constitutional abomination. What explains the different reactions? Jack Goldsmith and Cass Sunstein suggest that the successive shocks of Vietnam, Watergate, and the Church Committee revelations spurred “a massively strengthened commitment to individual rights.” “With respect to actions of the executive branch that might endanger civil liberties,” Goldsmith and Sunstein write, “the nation is now far less trusting of government, and far more solicitous of the accused, than it was sixty years ago. This change counts as a genuine revolution not only in law but also in cultural attitudes.” That revolution has had enormous implications for the political fortunes of the Heroic Presidency...."
In a 1971 conversation with Nixon, H.R. Haldeman tells him that the likely effect of the Pentagon Papers' release will be that "the implicit infallibility of presidents, which has been an accepted thing in America, is badly hurt by this, because it shows that people do things the President wants to do even though it’s wrong, and the President can be wrong.” The "implicit infallibility of presidents." It sounds insane, but the political trust numbers from the early '60s show that Haldeman wasn't far off. Yet no one today could use that phrase with a straight face. That's progress--and further progress is still possible.
Okay, since nobody is stepping up, I'll jump in—playing devil's advocate to some extent.
Granting that the unitary executive theory is extreme, it seems to me that—constitutionally—the presidency's strongest and more secure powers lie in his role as "Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States."
Many today want to sharply distinguish between the president's ability to wage war on foreign battlefields and what he can do on domestic soil. The distinction is a sensible and somewhat comforting one--we have rights but those people over there do not. But this distinction is not in the Constitution and indeed is rather anachronistic. When the Founders thought of war, they surely thought of the American Revolution itself—a civil war, particularly in the South, and almost all fought on American soil.
What happens if you look at the Revolution, the War of 1812, the Burr business and the Whiskey Rebellion as your benchmarks? What were the limits? Did military forces only intercept letters between two foreigners, or did they intercept letters between Americans and foreign powers too?
What are the limits here, and what can you use to construct them? Provided that we accept Bush is acting with forces "called into the actual Service of the United States" (and that this doesn't require declared war), can one lay out solid legal distinctions between what early presidents did and what Bush is doing?
Or take the much-neglected third amendment: "No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law."
Unenumerated rights notwithstanding, the implication is that some thought the Constitution might have allowed the Commander in Chief to quarter troops in private homes during peace. Worse, the Third Amendment actually allows it during war, so long as there's a war on, and there's a law regulating it. The law doesn't need to approve it per se. And there isn't any other test, like "a war going on nearby" or "no reasonable alternative." There just has to be a law regulating it.
Absent the third Amendment I think we'd all suppose the president could NEVER put soldiers in private houses, now or even during a real war. Surely something in the Constitution prohibits it; but it allows it instead. If the president has that sort of power during war—if the president can put a marine in your bunk bed, in your bathroom and at your kitchen table—maybe he can listen in when you call Saudi Arabia too.
As another example of the brutality of 18c warfare, consider the Congressional power to "grant Letters of Marque." Put bluntly, Constitution gives to Congress the ability to authorize private parties—in fact pirates—to seek out and attack foreign merchant shipping.
So, Congress can authorize private citizens, even citizens of another country, to conduct lethal piracy against civilians, but cannot hand terrorists over to countries that might torture them?
Although this is a Congressional grant, the point is a general one. 18c. warfare was a nasty business, imperfectly bound by law. To an originalist, the President's powers are fundamentally grounded in the expectations of that milieu. That's not a good thing. And it puts some limits on the limiting of presidential military power.
There's a lot there, more than I have time this afternoon to cover comprehensively.
I will say, though, that in one important respect, the War of 1812 cuts the other way. It gives the lie to the Bush administration's extraordinary claim (in the Padilla case) that the president has the power to seize American citizens on American soil and hold them indefinitely. As Professor Ingrid Wuerth has pointed out, "During the War of 1812… courts issued writs of habeas corpus to and awarded damages against military commanders in the field who detained U.S. citizens suspected of aiding the enemy.” In In Re Samuel Stacy, (NY Sup. Ct. 1813) NY Supreme Court ordered American military commanders on Lake Ontario to produce Stacy, a US citizen who had been captured as a spy and a traitor after the British seizure of a strategically important harbor. Chancellor Kent held that military lacked “any color of authority” to hold or try an American citizen for treason or spying, and Madison ordered him released. “Courts held military personnel personally liable for assault, battery, and false imprisonment if they detained US citizens not triable by court martial.” http://papers.ssrn.com/sol3/papers.cfm?abstract_id=467344
I don't find the Marque and Reprisal point particularly compelling. The question of whether Congress could, if it chose, authorize extraordinary rendition isn't what's at issue. The torture debate revolves around whether Congress has the power to prohibit torture or whether (as the administration has argued) the president's power as commander in chief gives him a Magic Scepter of Inherent Authority that he can wave at those statutes to make them vanish, should he feel it's necessary for national security. I don't believe there's much, if any, good evidence from the early years of the Republic that the commander in chief power was understood to be that broad.
The torture debate revolves around whether Congress has the power to prohibit torture or whether (as the administration has argued) the president's power as commander in chief gives him a Magic Scepter of Inherent Authority that he can wave at those statutes to make them vanish, should he feel it's necessary for national security. I don't believe there's much, if any, good evidence from the early years of the Republic that the commander in chief power was understood to be that broad.
I'm curious, having read all of the above (which was extremely interesting), as to whether, based on the concluding part of the last post, you feel that there should be some kind of historical validation of present actions by our governments. Certainly here in the UK, there is a swell of opinion that despite the supposed restraining hand of Parliament, our Prime Ministers do pretty much what they want without any punitive action ever effectively being taken. Whenever there has been an inquiry into events, it seems that the Prime Minister is free to obfuscate and suppress to their heart's content and simply provide us with a 'not in the country's best interest' argument to suffice for reason to halt any pursuit of answers or retribution. So, in the face of this kind of 'needs-must-when-the-devil-drives' attitude, it seems that they feel that any form of historical justification is unnecessary as we 'live in extraordinary times' (not that our historical record is that great when you examine how long Northern Ireland remained in a constitutional no-man's-land during and long after the resolution of "The Troubles"). This being the case, do you feel that there is, in real terms, any restraint of executive power? Surely it has become the case that our politicians exist to rule us rather than to serve us and, as such, raise our voices though we might, we are unable to affect their actual actions?
Well, I would like to see a serious investigation of what's gone on the last seven years. But I seriously doubt we'll see one in the next administration, because of the public perception that it looks like settling old scores and the lingering "war" atmosphere. But it seems as though you need an extraordinary set of historical circumstances to generate support for something like the Church Committee investigation of intelligence abuses.
But again, I think it's important to look at broader historical trends before we conclude that it's impossible to constrain presidential behavior. George W. Bush's theory of executive power is as broad and unconstrained as any president's in American history. But he's never pushed practice as far as theory would allow. And he's been rebuked repeatedly by the courts. The long-term, post-Vietnam post-Watergate growth of political distrust and the growth of a pro-civil liberties legal culture have helped constrain him. So I think it's way too early to conclude that we're doomed, though I certainly understand the sentiment.
I must say that personally I don't like to think that we are doomed, but it's often a paraphrase of an argument I hear against, I guess, bothering to get incensed about what's going on with modern politics in UK and the US.
As no-one else has chipped in yet ....
I'm curious to know whether the cult of personality attached to the US president is as extreme in reality in the US as it often appears in the UK. It seems from the press coverage we receive here that it's almost viewed as anti-American to criticise the Commander in Chief. I have a sense that the picture that the media portrays is the extreme end of the wedge - after all, the balanced, thoughtful cross-section of society don't make such good press. That being the case, do you see the media as a restraining force on the over-use of executive power or could it, in some cases, contribute to the elevation of the President to such a cult figurehead status that it, in fact, has the opposite effect?
Great question. I think the media's impact cuts both ways. New broadcast technologies--the development of radio and television--contributed to the president's ability to move the masses and play the sort of plebiscitary role the Framers nevere intended. And television news, especially, seems to demand a central character in the stories it tells, which feeds the expectation of a presidential response to all manner of problems, real and imagined. On the other hand, the press grew more adversarial after Watergate, and that has helped check presidential abuses. From the book:
"Aided by FOIA, post-Watergate investigative reporters would make it harder for presidents to hide corruption, incompetence, and abuses of power. The press’s changed attitude could be seen in the sort of questions that the White House press corps put to the president. A 2006 study sampling presidential press conferences from Eisenhower through Clinton finds that “the Nixon era marks the beginning of an extended period of increasingly vigorous questioning,” with deference declining and reporters growing more assertive and adversarial.
Like the declining trust numbers, the newly adversarial journalism gave rise to much handwringing on the part of those earnest souls who saw muckraking as an impediment to government doing great works. In books with titles like Feeding Frenzy: How Attack Journalism Has Transformed American Politics, and Spiral of Cynicism: The Press and the Public Good, we continue to hear complaints that the cynicism stoked by scandal-driven journalism has made it “impossible to govern.”
The governing class tends to agree. When Bob Woodward requested an interview with George H.W. Bush in 1998, Bush declined, writing, “I think Watergate and the Vietnam War are the two things that moved beltway journalism into this aggressive, intrusive, ‘take no prisoners’ kind of reporting that I can now say I find offensive.” No doubt that kind of reporting was offensive to people in power; but it helped expose and deter presidential abuses."
I'm curious to know whether the cult of personality attached to the US president is as extreme in reality in the US as it often appears in the UK.
klarusu - We have a tradition of "robust criticism" of the President. One can't open a newspaper five days in a row without seeing an editorial cartoon portraying the President as an idiot. There are organizations that sell toilet paper with pictures of the President's face on it. So no, I don't perceive a cult of personality.
This is not to deny that the President (like Congress and the Courts) has too much power.
Carnophile makes a good point--and identifies another positive post-Watergate trend: irreverence and disrespect for the office. From the book:
"In 2006, Daily Show alum Steven Colbert was the featured comic at White House Correspondents’ Dinner, the annual gathering of D.C. journalists where the president is expected to show up and be a good sport by putting up with some gentle ribbing. Colbert wasn’t gentle. In character as the moronic right-wing talk show host he plays on the Daily Show spinoff The Colbert Report, Colbert compared the Bush administration to the Hindenburg disaster, sarcastically applauded our “success” in Iraq, and suggested that the president was an ignoramus who refused to seek accurate information because “reality has a well-known liberal bias.” A former top administration aide who attended the dinner commented that the president was furious: he had “that look like he's ready to blow.”
Colbert’s performance was open, in-your-face disrespect for the presidency, and many people didn’t care for it. Many didn’t like it 10 years earlier at the White House Correspondents Dinner, when President Clinton had to sit uncomfortably while shock-jock Don Imus cracked jokes about Clinton’s marital infidelities (though, then as now, how offended one was largely depended on one’s party affiliation).
Despite the vestiges of hero-worship on display in the press and in popular entertainment, we treat the presidency with less sentimentality and less respect than we have in years. American political culture in the 21st century is crass and ill-mannered; it holds no idols sacred, and for that reason it grates on those who prefer a more accommodating, respectful approach to political disagreement. But in its own way, our offensive, sometimes paranoid, and always confrontational orientation reflects an 18th-century American sensibility.
Mocking those who rule us might seem immature, but consider the alternative: From FDR through LBJ, for nearly four decades, Americans forgot their heritage of political distrust, and looked to the Oval Office with a childlike faith in the occupant's benevolence. The age of the heroic presidency left a legacy of ruinous wars, unrestrained executive surveillance, and repeated abuses of civil liberties. Perhaps a little disrespect is in order, and perhaps there are worse things, after all, than making the president a punching bag and punchline."
Despite the vestiges of hero-worship on display in the press and in popular entertainment, we treat the presidency with less sentimentality and less respect than we have in years.
Perhaps a little disrespect is in order, and perhaps there are worse things, after all, than making the president a punching bag and punchline.
Musing out loud, but this got me wondering... Do you think that the disrespect is for the office of the President or for the, I was going to say individuals but for the US it's still accurate to say 'men', who have held that role? Are they seen as separate entities? If that is the case, do you believe that in the current political landscape where backroom bartering and the purchase of favours by concession-making (the UK/Saudi BAE issue being one occurrence that sticks in my mind, as it was once again "not in the country's best interest" to pursue obvious illegality) has become the currency of choice, that it will ever be possible for a President to be both effective and morally just?
The age of the heroic presidency left a legacy of ruinous wars, unrestrained executive surveillance, and repeated abuses of civil liberties.
As we obviously do have a climate of political distrust at the moment, I wonder whether you think that there will be a better legacy left by the incumbents during this period? Certainly, on the ground in the UK, this description has a ring of familiarity about it (Afghanistan, Iraq, Stop-and-Search policies, identity cards, suspension of many of the burdens of proof that were necessary to imprison individuals, prosecution for expression of intent rather than actions, CCTV surveillance, licence plate IDs, prosecution for the discussion of ideas ... I could go on and on, so I'd better jump off the soapbox....)
Hi Mr Healy,
Have not (yet?) read your book, but I do follow Cato@Liberty and am familiar with your writings there and read the "Cult of the Presidency" article in June's issue of Reason. I think you are, sadly, dead on in your assessment that we are trying to elect some sort of national life coach instead of a constitutionally limited executive. Why should I even care what Obama or McCain think about national service and group calisthenics? But I have to, because other people want that kind of leadership.
How do you think we fell into this? Via strong leadership during wartime (I'm thinking WWII here)? How can we get out? Nixon may have helped us gain some irreverence toward both the man and the office, but we still expect the president to "do something" about everything. Of course, we expect that of the Congress, too.
It's hard to distinguish between disrespect for the man and the office when virtually every president becomes a lightning rod for discontent, as has been the case post-Watergate. I think the road toward greater effectiveness lies in recasting what we expect the job to be. It's possible to perform effectively when one's job is faithfully executing the laws and protecting the country from foreign attack. It's not possible when one's job is healing every problem--physical or spiritual--that plagues the country. As for the second question, I don't know about what legacies post-9/11 presidents will leave. But given the climate of distrust, one hopes that they'll have a harder time getting away with vast new crusades and expansions of executive power.
nperrin: how we got here from there is an enormously involved question on which I'm sure even the book doesn't scratch the surface. In one sentence, changed material conditions (economic and technological) coupled with the progressives' activist vision for the presidency, and a series of crises that made the realization of that vision possible. As for how we can get back, chapter 9 of the book treats that question as well, but there are no easy answers or five-point plans that we can be confident will fix the problem, which ultimately requires a change in the public's orientation toward the office.
Also, while I'm here, let me draw your attention to a couple of recent posts on my humble blog. Here's one on "Joe Biden's War Record," which echoes Arthur Schlesinger Jr.'s point that the growth of the Imperial Presidency was as much a matter of congressional acquiescence as presidential aggrandizement:
And here's one exploring the question "how smart should a potential president be?" It may be particularly relevant given the upcoming Palin-Biden debate:
Hey Gene, Thanks for the links and thanks for taking the time to answer the questions so fully. I'm off to check out the blog now and I'll certainly be tracking down a copy of your book here in the UK. My interest is well and truly piqued. I find the 'cult' of the American presidency fascinating from a UK perspective as it seems that, inexplicably, our politicians are trying more and more to emulate this through their personal presentation and attempts to galvanise the British public (Gordon Brown's wife's rather trite introduction for her husband at the recent party conference was a notable example of this - no-one looked particularly comfortable with it, not even Mr Brown himself). I look forward to reading your treatment of it in more detail.
Totally non-writing related, but what on earth is it like working at a 'Think Tank' - I often hear them referred to but am never really sure what goes on there. I like to think it's lots of highly intellectual discussion and not too much donut eating....
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