In May 1977, Former President Richard M. Nixon told interviewer David Frost, “When the President does it, that means that it is not illegal.”
Vice President Dick Cheney apparently has embraced this staggering view of unlimited presidential power since Nixon’s assertion of imperial prerogatives. In the current administration, Cheney and his aide David Addington have schemed to push the limits of executive power since before the 9/11 attacks, according to reporter Charlie Savage’s sweeping new book, Takeover: The Return of the Imperial Presidency and the Subversion of Democracy (Little, Brown).
Savage describes the tactics — from extreme secrecy, to packing the courts, to issuing so-called signing statements that alter a bill’s meaning as it’s signed into law — that the Bush-Cheney administration uses to dismantle constitutional checks and balances and to circumvent laws and treaties.
Takeover has been praised by observers from both sides of the political aisle, including conservative columnist George F. Will, Nixon White House Counsel John Dean, and progressive law professor Laurence Tribe. Norman J. Ornstein of the conservative American Enterprise Institute wrote: “Every American concerned about the erosion of checks and balances in our constitutional system should read this book — and weep.”
Savage covers legal affairs for the Boston Globe. He was awarded the 2007 Pulitzer Prize for national reporting on abuse of signing statements by President Bush.
What inspired you to cover Bush’s signing statements, and then assess presidential power more broadly in Takeover?
My regular beat is legal affairs. In 2005, I was following closely the fight in Congress over the McCain torture ban. That fight ended with Bush signing the ban into law on Dec. 30, then issuing a late-night signing statement instructing CIA and military interrogators that the new ban was an unconstitutional encroachment on his powers as commander-in-chief and so it did not need to be obeyed if he told them not to obey it.
Two months later, I was covering the fight in Congress over whether to re-authorize and make permanent the P.A.T.R.I.O.T. Act. That fight, too, ended with a provocative signing statement by Bush, in which he instructed the Justice Department that he had the constitutional power to authorize officials to disobey the new oversight.
After those two articles, it made sense to find and decipher all of Bush’s signing statements, including those that had nothing to do with national security, to see what else Bush had signed but claimed a right to defy. It turned out that he had challenged more laws in his first five years as president than all previous presidents in American history combined. I learned that [the signing statements] were primarily coming out of Vice President Cheney’s office, the handiwork of his longtime top aide, David Addington.
Back in December 2005, when The New York Times had revealed the warrantless wiretapping program, Cheney had told reporters that if they wanted to understand why he thought it was legal for Bush to bypass the warrant law, they should go read a report that he and Addington had worked on back in 1987 during the Iran-Contra scandal. The report laid out a sweeping view of presidential power to bypass laws that limited his options in foreign affairs and national security matters — a vision for a presidency above the rule of law.
At that point, it became clear to me that the signing statements story, as amazing as it was, was really just the tip of the iceberg — just one tactic among many for increasing presidential power that the White House, pushed by Cheney, had been systematically advancing in fulfillment of an agenda he had been fostering for decades.
What other tactics have been used to expand executive authority?
The Bush-Cheney administration [also] has sought to expand presidential power by systematically selecting executive branch lawyers who had adopted an extreme view of presidential power to be Supreme Court justices, centralizing control over the federal bureaucracy, frequently issuing signing statement challenges to new laws, embracing the Unitary Executive Theory (which didn’t exist before the mid-’80s), etc.
What is the that theory? Doesn’t it run afoul of the separation of powers doctrine set out in the Constitution?
The Unitary Executive Theory is a revisionist interpretation of the Constitution that gives much greater power to the president. The theory holds that it is unconstitutional for Congress to enact laws that in any way fracture the president’s control of the executive branch or anything deemed an “executive” power.
The theory was first invented by the Meese Justice Department during the Reagan years [for] comparatively tame domestic issues, like the independent regulatory agencies. For example, they mused, perhaps the Federal Reserve was unconstitutional and the president ought to be able to raise and lower interest rates at his own discretion.
The Bush-Cheney legal team has significantly expanded the sweep of the theory to encompass matters of national security. They hold that defending the nation is an executive power committed exclusively to the Commander in Chief, and essentially have used the theory as putative legal justification for holding that a whole range of laws that establish rules, regulations, and controls on military and intelligence matters are unconstitutional and do not need to be obeyed because such decisions — such as how to interrogate detainees or go about wiretapping — are for the president alone to decide.
Mainstream legal scholars across the political spectrum reject this interpretation of the Constitution, which on its face overlooks the plain text of the founding document, and the Supreme Court has consistently rejected its principles across generations. One of the most important legal thinkers from the Reagan years, Stephen Calabresi, developed the Unitary Executive Theory, [and] has said that he disagrees with how the Bush-Cheney administration has been using the theory.
What precisely is a signing statement?
A signing statement is an official legal document issued by the President on the day he or she signs a bill. Filed in the Federal Register, signing statements lay out the president’s interpretation of new laws and instruct the executive branch to interpret the laws in the same fashion.
The device becomes controversial when presidents use it to declare that various sections of the bills that they have just signed are unconstitutional and so do not need to be enforced as Congress wrote them. Moreover, the laws targeted in this fashion have most often been constraints on the President’s own power as head of the executive branch or Commander in Chief, so this claimed power to sign-but-not-enforce boils down to a claimed power to-sign-but-disobey.
In his first six years of office, Bush attached signing statements to about 150 bills, challenging well over 1,000 distinct sections of those bills, while at the same time virtually abandoning his veto pen. By contrast to the 1,000-plus laws Bush has challenged, all previous presidents in American history combined challenged about 600 such laws from the 19th century to the end of the Clinton administration. The laws Bush has challenged run the gamut from military rules and regulations, whistleblower protections for executive branch employees, requirements to give information to Congress, safeguards against political interference in federally funded research, and affirmative action provisions.
How have Bush’s signing statements and executive orders affected the government departments?
One of the things that people are still trying to figure out is how often the signing statements get carried out, and how often they are simply bluster or reserving a right to do something. A big problem is that most of the most interesting ones, like the P.A.T.R.I.O.T Act oversight provisions and the McCain Torture Ban, involve classified national security issues where what the government is doing is a secret.
The GAO recently completed a study of 19 provisions that Bush had challenged using a signing statement — none of them the more interesting ones. It found that the government enforced or obeyed 10 provisions as written, three were not triggered by events and so did not have to be obeyed, and six were disobeyed. The GAO did not determine whether the signing statement was the cause of the disobedience, but when it asked one agency — Immigration and Customs Enforcement — why it had not obeyed the law, it was told that the law was merely “advisory” rather than mandatory, just as Bush’s signing statement had instructed ICE to view it.
You write that the Bush-Cheney administration has defied treaties without consulting Congress.
In December 2001, the administration pulled the United States out of the Anti-Ballistic Missile Treaty without consulting the Senate, which had ratified it, to see whether it wanted to de-ratify it. This locked down a precedent that presidents could abrogate treaties on their own say-so, contrary to historical practice. The ABM treaty pullout established that it was now a general rule that presidents need not consult Congress when disposing of even major ratified treaties.
The Bush administration also reinterpreted into meaninglessness restrictions on presidential power found in the Geneva Conventions and the UN Convention Against Torture. It did not consult Congress in either case.
How has the administration used secrecy to limit public awareness of issues such as energy policy, climate change, and the Iraq war?
The Bush administration has expanded the fortress of executive secrecy that prevents Congress and the public from knowing information about the executive branch’s actions or intelligence matters across a range of matters. Even before 9/11, in the fight over Cheney’s energy task force papers, it fought to the Supreme Court to win precedents gutting open-government laws that had previously required the White House, such as with Hillary Clinton’s health care task force, to perform such work in the public view. It has also used political appointees to edit and censor government science reports that did not support the administration’s policy preferences on global warming.
During the run-up to the vote on authorizing the Iraq War, some lawmakers chose not to receive briefings about American intelligence about alleged WMD or Al Qaeda connections in Iraq under rules that would prevent them from publicly debating the war if they did receive such information from the executive branch.
What can average citizens do about the alarming unilateral actions of the executive branch under Bush-Cheney?
As a journalist, my role is to describe what is happening, what has happened, and how things have changed. Thus, answering this question is largely for others. I do feel comfortable, however, saying that I think that executive power should be one of the issues on the table in the upcoming election. Aspiring presidential candidates from both parties should be asked detailed questions about their views on presidential power and what limits, if any, they think they would have to respect on their own authority — before Election Day, not after one of them has already moved into the White House. n
Robin Lindley is a Seattle attorney and writer. He has worked as a law teacher, government attorney, and staff attorney for a congressional investigating committee. He was the 2006 chair of the World Peace through Law Section of the Washington State Bar Association.