Contextualizing Bush’s “Imperial” Presidency
By Nick Miller, Domestic Affairs Staff Writer
Since winning the election in 2000, one of the major themes of George W. Bush’s presidency has been the gradual expansion of presidential power. Particularly in the wake of 9/11, Bush has asserted a very broad interpretation of executive power, utilizing unconventional means to push his agenda, often without congressional approval.
Under the Bush presidency, America has seen a proliferation of signing statements—a type of presidential addendum to a bill that clarifies how the executive plans to implement the laws. Bush has used these statements as a means of expressing disagreement with part of bills that he deems unconstitutional, and these statements have often articulated the president’s intention to not implement the contested portions of the bill. Because of this, groups such as the ACLU have argued that these signing statements “ defy the constitutional powers of Congress, and undermine the system of checks and balances.” [i]
Similarly, Bush neglected traditional oversight procedures in the NSA terrorist surveillance program, placing wiretaps on international phone calls without prior approval or warrant from the Foreign Intelligence Surveillance Court. In the process, he drew ire from liberals and even some Republican members of Congress, especially Senator Arlen Specter of Pennsylvania, who subsequently introduced legislation to create firmer surveillance guidelines. [ii]
Bush has also skirted international law with the detainment camp at Guantanamo Bay, arguably disregarding provisions of the Geneva Conventions with his use of military commissions. This has caused Bush to come into conflict with the courts and Congress, most notably in Hamdan v. Rumsfeld; the Supreme Court ruled in June 2006 that the procedures in place for trying detainees by military commissions were in fact illegal, both under U.S. law and international laws stipulated by the Geneva Conventions.
These issues, as well others, have raised questions about Bush’s commitment to the constitutional principles of checks and balances that underlie the American system of government.
Before passing judgment on Bush’s expansive interpretation of presidential power, it is important to view his presidency in historical context. Bush is certainly not the first president to assert broad or extra-constitutional powers, and he is not the originator of those unilateral executive actions that now create so much controversy. Furthermore, Bush has not taken such actions in a vacuum; he is responding to the specific challenges and constraints of his time, perhaps the most important of which is the American-led War on Terror.
When viewed through this lens, Bush’s actions appear far from extraordinary; on the contrary, they represent two broad historical trends: first, the recent resurgence of presidential power; and second, the characteristic response of a president to a wartime crisis.
Signing Statements and the Resurgence of Presidential Power
While Bush has perhaps brought the issue of signing statements to America’s attention more than his predecessors have, the fact is that presidents have utilized them quite regularly since Ronald Reagan. Signing statements have been used as a presidential tool as far back as Andrew Jackson, but it was under Reagan and Clinton that their use truly proliferated. [iii] In other words, Bush is not the originator of the presidential signing statement; he is simply its most recent user.
It is true that Bush has issued more signing statements than his predecessors—“affecting more than 750 laws” according to the American Civil Liberties Union [iv] —but this is simply the continuation of an ongoing trend, one which the Bush administration may believe is necessary in order to protect the presidency’s power and win the War on Terror. [v]
According to Christopher Kelley, a professor of Political Science at Miami University of Ohio, “ The presidential signing statement has become particularly important in the last thirty years due to the persistence of highly partisan, divided government that makes it nearly impossible for a president to move his policies through the Congress.” [vi] Kelley also notes the decline in presidential power since the Watergate scandal as a factor influencing the increasing use of signing statements by recent presidents. [vii]
In sum, while perhaps troubling from a constitutional or democratic perspective, what history shows us is that Bush’s use of the signing statement is not a shocking aberration, but rather a development in line with recent presidential history—a development that has been further accelerated by the onset of the War on Terror.
Presidential Power in Times of War
The September 11th terrorist attacks were the most devastating strikes on United States territory in the nation’s history. In response, Bush launched the War on Terror, a move that has resulted in significant consequences for the United States both at home and abroad. At home, Bush has enacted numerous policies aimed at protecting the United States from further terrorist attacks, two of which have been the NSA terrorist surveillance program and the detainment of suspected terrorists at Guantanamo Bay. Both of these policies have created significant controversy, largely because Bush enacted these policies with little or no congressional support or approval. However, if one views these decisions in a historical context, Bush’s actions appear to be far less extraordinary than conventional wisdom holds.
While today he is lauded as one of America’s greatest presidents, many forget that during the Civil War, President Lincoln unilaterally authorized the imprisonment of thousands of suspected Confederate sympathizers. Lincoln also suspended the writ of habeas corpus—one of the most fundamental of all civil rights. [viii]
In World War II, Franklin Roosevelt—another of America’s most celebrated presidents—went even further in his assertion of presidential power, interning over 100,000 Japanese-Americans in camps by executive order. While the Supreme Court subsequently upheld this decision, it clearly marked a substantial assertion of unilateral power by Roosevelt, one far greater than Bush’s detainment of several hundred foreign prisoners at Guantanamo.
Essentially, the main difference between Bush’s response to a time of war and the responses of previous presidents is simply that Bush has faced more opposition to his policies. Both the NSA terrorist surveillance program and the detainments at Guantanamo Bay have been challenged by Congress or the courts, with the result that the president’s power has been curtailed. In other words, not only have Bush’s wartime policies been far less extreme than previous presidents, but they have also been far more constrained by other political actors.
Conclusions
As the preceding discussion attempts to show, President Bush is far from unique in his broad interpretation of presidential power. Furthermore, his attempts at increasing the power of the executive are not unique either; they are representative of an ongoing historical trend, one that is magnified during times of war.
Some of America’s greatest presidents have flouted Congress and the Constitution in their quest for expanded executive power, and presidents have historically found such attempts necessary during times of war. Moreover, there has been an increased effort to regain presidential power and prerogative lost following the upheaval of Watergate and Vietnam.
This is not to say that Bush’s expansive assertion of presidential power is just or desirable; that is up to every individual American to decide. When judging Bush and his policies, however, one should keep in mind the historical factors and context that shape his actions. Only then can one make a truly informed judgment of the merits of these policies.
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[i] The American Civil Liberties Union, “House Judiciary Hearing Examines Presidential Signing Statements,” US Fed News Service, January 31, 2007.
[ii] Charles Babington, “Specter Proposes NSA Surveillance Rules,” The Washington Post, February 26, 2006. http://www.washingtonpost.com/wp-dyn/content/article/2006/02/25/AR2006022501402.html
[iii] Christopher S. Kelley, “A Comparative Look at the Constitutional Signing Statement: The Case of Bush and Clinton,” presented at the 61st Midwest Political Science Association, April 2003, p. 6.
[iv] The American Civil Liberties Union, “House Judiciary Hearing Examines Presidential Signing Statements,” US Fed News Service, January 31, 2007.
[v] Elizabeth Weiss Green, “Signs of Struggle; New questions over those presidential signing statements,” U.S. News & World Report, August 7, 2006.
[vi] Christopher S. Kelley, “A Comparative Look at the Constitutional Signing Statement: The Case of Bush and Clinton,” presented at the 61st Midwest Political Science Association, April 2003, p. 2.
[vii] Christopher S. Kelley, “A Comparative Look at the Constitutional Signing Statement: The Case of Bush and Clinton,” presented at the 61st Midwest Political Science Association, April 2003, p. 2.
[viii] William A Rehnquist, “Civil Liberty in Wartime,” Woodrow Wilson International Center for Scholars, November 17, 1999. http://www.totse.com/en/politics/political_spew/rant1.html