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By John Fortier
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Posted: 10/10/07 07:04 PM [ET] |
The 110th Congress is the stage for a great debate over the relative powers of Congress and the president. On one side is an administration with an expansive view of executive power, heightened by Sept. 11, 2001, and its aftermath. On the other side is a Congress looking to rein in the executive in matters of war, foreign affairs and intelligence policy.
It is tempting to think that courts or legal scholars will step in and draw clear lines defining congressional and presidential spheres. But the reality of the separation of powers is much messier. Almost all of the big conflicts between the president and Congress will be resolved by negotiation between the branches or not resolved at all.
There is a strong argument for the ascendancy of Congress. Congress makes laws, which create executive institutions and bind and regulate parts of the administration. By this argument, the president can do what is authorized by Congress by law and not much more.
There is an equally strong argument for a powerful, independent executive. Unlike in parliamentary systems, the president has his own source of political power, as he is elected independently of Congress. And the Constitution assigns the president control over a broad executive power, which the president can use to do what is needed for the welfare of the nation, especially in times of crisis. Only the strongest partisan of congressional power would require a president to go to Congress before countering a foreign attack or responding to a domestic emergency.
These two extreme constitutional views are inconsistent. The president cannot act without congressional sanction, or he must act without congressional sanction, but both of these views have their moments.
In emergencies, the president acts, and arguments about executive power expand. Lincoln and FDR acted audaciously and without congressional approval during the Civil War and World War II. But there are also times of strong congressional reaction to executive powers, such as the 1970s, when Congress passed the War Powers Act and created the FISA courts.
We are now in the middle of a battle over presidential and congressional power that was brought to a head when Democrats took over the legislative branch. President Bush acted unilaterally in a number of ways after Sept. 11. But over time, Congress, elections, courts, elements within the administration and popular opinion have chipped away at presidential power with respect to Iraq, military tribunals and wiretapping, to name a few issues.
The situation is made more difficult by the fact that Sept. 11 was not an isolated event. For a president to act unilaterally in the shadow of such a serious threat is not remarkable. But because the threat of future attack persists, presidents may need strong powers for a long period of time.
A recent book, The Terror Presidency, by my American Enterprise Institute colleague, Jack Goldsmith, has received a lot of attention for its criticisms of Bush administration policy from within. But the most interesting theme Goldsmith raises is that the Bush administration has actually undercut the president’s power by relying solely on the president’s authority. Bush would have been on much stronger ground had he gone to a Republican-controlled Congress to create military tribunals or to revise the use of FISA courts. By instead choosing to act unilaterally and to rely on expansive views of executive power, the administration now finds itself in a much more difficult situation where courts and Congress may further curtail executive power.
Pure presidential power, without any sanction from Congress, has its place in crises. But advocates of a strong presidency often find that going to Congress can strengthen executive power, not diminish it.
Fortier is a research fellow at the American Enterprise Institute. |
