Checks and Balances: Who Can Check the President?

Our Presidential Era: Who Can Check the President?
By NOAH FELDMAN
NYU Professor of Law

I. OUR PRESIDENTIAL ERA

Not since Watergate has the question of presidential power been as salient as it is today. The recent revelation that President George W. Bush ordered secret wiretaps in the United States without judicial approval has set off the latest round of arguments over what the president can and cannot do in the name of his office. Over the past few years, the war on terror has led to the use of executive orders to authorize renditions and the detention of enemy combatants without trial - for which the Bush administration has been called to account by our European allies. The treatment of detainees has also given rise to concerns in Congress about the prerogatives of the chief executive: both houses recently voted to limit the president's authority to employ C.I.A. or other executive agents to engage in cruel and inhumane interrogations. The limits of presidential power will almost surely be a major topic of discussion during Samuel A. Alito Jr.'s Supreme Court confirmation hearings, which are scheduled to begin this week.

The stakes of the debate could hardly be higher: nothing is more basic to the operation of a constitutional government than the way it allocates power. Yet in an important sense, the debate is already long over. By historical standards, even the Bush administration's critics subscribe to the idea of a pre-eminent president. Administrative agencies at the president's command are widely understood to be responsible for everything from disaster relief to drug approval to imposing clean-air standards; and the president can unleash shock and awe on his own initiative. Such "presidentialism" seems completely normal to most Americans, since it is the only arrangement most of us have ever known.

For better or worse, though, this is not the system envisioned by the framers of the Constitution. The framers meant for the legislative branch to be the most important actor in the federal government: Congress was to make the laws and the president was empowered only to execute them. The very essence of a republic was that it would be governed through a deliberative legislature, composed carefully to reflect both popular will and elite limits on that will. The framers would no sooner have been governed by a democratically elected president than by a king who got his job through royal succession.

The transformation of the United States from a traditional republic to a democratic nation run in large measure by a single executive took a couple of hundred years. Constitutional evolution, like its counterpart in the natural world, has occurred sometimes gradually and sometimes in catastrophic jolts, like those brought about by war or economic crisis. The process has not been entirely linear: presidential power grabs have often been followed by a Congressional backlash, as in the wake of Richard Nixon's presidency. But the overall winner has unquestionably been the president, who has reached heights of power that the framers would scarcely have imagined. The modern presidency, as expressed in the policies of the administration of George W. Bush, provides the strongest piece of evidence that we are governed by a fundamentally different Constitution from that of the framers. While any constitution must evolve over time to meet new circumstances and challenges, there is reason to think that, when it comes to presidential power over national security, the latest developments have gone too far.

The rise of the presidency began with the Louisiana Purchase, which in 1803 doubled the landmass of the United States. History taught the framers that, just as Rome changed from republic to empire with conquest of new lands, territorial acquisition would lead to the centralization of political power. Sure enough, Thomas Jefferson's decision to buy the territory without seeking a constitutional amendment or advance Congressional approval amounted to a huge expansion of presidential authority. Jefferson entered office as a skeptic of the national government's power and even privately suggested that the purchase was unconstitutional. In overcoming his own republican instincts and arranging the purchase secretly, he demonstrated how the office of the presidency would come to serve its own interests, swaying the men holding it to strengthen not simply their own authority but also that of the institution itself.

Three decades later, Andrew Jackson's presidency marked another leap forward in presidential power. His contribution was his claim to represent the country, in its entirety, more directly and democratically than the congeries of local politicians who made up Congress. This rhetorical stance, coupled with the expansion of voting rights to white men without property, gave him the political muscle to veto the national bank and stand up to Congress in the name of the common men who had voted for him.

By the middle of the 19th century, with the admission to the Union of Florida, Texas and California, the United States became a continental empire. Such an empire called for an "imperial presidency," as Arthur M. Schlesinger Jr. suggested in his classic 1973 book of the same name. With the onset of the Civil War, the threat to the nascent empire led Abraham Lincoln to govern without Congress and to suspend access to the courts. When in 1898 William McKinley conquered the Philippines and chose to rule it, the imperial metaphor became still more apt: the United States had become, for the first time, the proprietor of whole nations whose peoples would never vote in its elections and whose governors reported directly to the president.

In the 20th century, the Great Depression helped propel the presidency to its current level of dominance. The administrative agencies that were created during Franklin Delano Roosevelt's New Deal were a response to the tremendous complexity and growth of the national economy. An overwhelmingly Democratic Congress went along with the Roosevelt administration, giving the agencies broad discretion in regulating the economy and addressing workers' welfare. Over time, as the agencies expanded to administer health and safety regulations, Congress realized that it was more convenient to pass the buck to agencies than to deal with hard policy questions on its own. A congressman could take credit for an agency's action when it was convenient and blame the agencies when they adopted policies that his constituents disliked. It is now taken for granted that the president is in charge of the vast administrative apparatus that makes most of the important domestic-policy decisions in the country.

Today, of course, the main arena for the extension of presidential power is the realm of national security. The president's power to use force has grown enormously since the founding. The framers worried that a standing army at the president's beck and call would encourage him to subvert legislative independence by force, and so the Second Amendment gave Americans a right to bear arms in order to form well-ordered militias that would protect "a free state" - not only from the incursions of foreign powers but also from an overweening central government. Until the 20th century, a president who called the military into action did not have much to work with.

But as America emerged as a world power, Congress began to ignore the framers' concern, enhancing the size and might of the regular army until presidents could enter even major conflicts on their own. Presidents from both parties used the ongoing hostilities of the cold war to strengthen their military prerogatives during the conflicts in Korea and Vietnam. Despite the passage of the War Powers Act of 1973, which tried to reassert Congress's role in going to war, the presidency ended up more powerful than it had been before; no president has acknowledged the act's constitutionality. Even Bill Clinton was able to bomb Kosovo without asking Congress for permission.

The administration of George W. Bush, emboldened by the Sept. 11 attacks and the backing of a Republican Congress, has sought to further extend presidential power over national security. Most of the expansion has taken place in secret, making Congressional or judicial supervision particularly difficult. Administration lawyers have gone so far as to claim that the president as commander in chief is not bound by laws that ban torture because he is empowered by the Constitution to fight the nation's wars however he sees fit. A memo from the Department of Justice to the White House counsel dated Aug. 1, 2002, argued that any attempt to apply Congress's anti-torture law "in a manner that interferes with the president's direction of such core war matters as detention and interrogation of enemy combatants thus would be unconstitutional."

The administration has also suggested, in other memos, that the president may violate international treaties if necessary to fight the war on terror. By these lights, the United Nations Convention Against Torture, the leading anti-torture treaty, could constitutionally be violated even though the United States signed and ratified it, and even though the Constitution declares treaties to be "the supreme law of the land." Meanwhile, the administration takes the view that the anti-torture treaty does not apply to its actions outside the United States as a matter of law, but only, as Secretary of State Condoleezza Rice recently stated on a trip to Europe, "as a matter of U.S. policy." When added to the newly declared presidential right to arrest American citizens wherever they might be and detain them without trial as enemy combatants, these claims add up to what is easily the most aggressive formulation of presidential power in our history.

For the last four years, a Republican Congress has done almost nothing to rein in the expansion of presidential power. This abdication of responsibility has been even more remarkable than the president's assumption of new powers. In recent months, though, Bush's relative unpopularity, as reflected in opinion polls, has emboldened Congress to take some steps toward reasserting its oversight role. In addition to the new anti-torture legislation, there is talk of requiring regular reports on secret detentions; and last month Congress nearly allowed the U.S.A. Patriot Act to lapse, granting only a five-week extension instead of the full renewal sought by the administration. Still, political logic dictates that, as long as Republicans control Congress, its oversight will be cautiously managed so as not to harm the party or the party's next presidential candidate. And even accounting for a legislative backlash, history suggests that the presidency ultimately emerges stronger after a president makes new claims of his constitutional authority.

So what, if anything, should be done? If presidential power has been taken too far, who, if anyone, can impose limits on it?

II. WHAT THE COURT HAS DONE - AND MAY DO

The Supreme Court would seem to be the natural place to look for a restoration of the constitutional balance of powers. While Congress sat on its hands for most of the last five years, the court took on some of the most contentious problems of presidential power in a set of landmark decisions concerning detainees being held as enemy combatants. These cases were not just about civil liberties. They were also about the relative powers of Congress and the president under wartime conditions, and the court treated them as such.

The court's response to these crucial issues was to propose what is in effect a compromise between presidential power and Congressional authority. The most significant case concerned the detention of Yaser Esam Hamdi, an American citizen captured in Afghanistan and then held without trial in the United States. In June 2004, the court rejected the administration's view that it was authorized to arrest an enemy combatant anywhere and hold him indefinitely without trial. (The administration's argument was endorsed by Justice Clarence Thomas.) But the court also did not adopt the opposing view, expressed in a stinging dissent written by Justice Antonin Scalia, that an American citizen may not be detained without trial in the United States so long as the courts are open and Congress has not exercised its power to suspend the writ of habeas corpus.

Instead, the court concluded - over the disagreement of Justice David Souter - that Congress had in fact authorized the detention of enemy combatants, including American citizens. Yet at the same time, the court held that a suspected enemy combatant must be afforded the basic right to due process: to be given notice of the accusation against him and an opportunity to rebut that accusation before "a neutral decision maker." When push came to shove, however, the administration never gave Hamdi the hearing that the court promised him: he was "released" to Saudi Arabia without a hearing of any kind, on the condition that he renounce his United States citizenship.

The court's opinion in Hamdi's case seemed to exert a gravitational pull on the status and rights of the detainees at Guantánamo Bay. In a parallel case, the court addressed the Guantánamo issue only to say that those detainees - who are not United States citizens - were covered by the legal right to seek habeas corpus. The administration argued that since Guantánamo was part of Cuba, the habeas corpus statute did not apply there. When the court rejected this argument, the administration seemed to draw the lesson that it had better provide some sort of hearings for the Guantánamo detainees, as the court required for Hamdi. The administration decided to give those detainees hearings before commissions made up of military officers for the limited purpose of deciding whether they were, in fact, enemies of the United States. Not surprisingly, almost all these hearings have resulted in continued detention: only 38 of the more than 500 detainees were found not to be enemy combatants

Whatever their practical shortcomings, the court's decisions regarding Hamdi and the Guantánamo detainees still registered as a limitation on the unbridled presidential power that the administration asserted. But today, the Supreme Court that decided the detention cases is no more. Chief Justice William H. Rehnquist has since died and been replaced by John G. Roberts Jr.; and Justice Sandra Day O'Connor has offered her resignation contingent on the confirmation of her successor. If Samuel Alito takes her place, he and Roberts could change the balance significantly.


The change in the court's makeup is potentially significant, for the litigation of presidential power is just gathering steam. In addition to the likelihood that the court will hear a third prominent case concerning detention - that of Jose Padilla, an American citizen arrested at O'Hare Airport in 2002 and then detained in the United States without trial - it may well consider cases concerning the tapping of private conversations between terror suspects in the United States and persons abroad.

The revelation that President Bush directed the National Security Agency to eavesdrop (and use data-mining technology) on such communications without seeking warrants has raised the question of whether the president had the power to do so. The Foreign Intelligence Surveillance Act, or FISA, prohibits surveillance of this sort without a special warrant, so the administration has proffered several other justifications of its policy. It has argued that when Congress authorized the president to use force after Sept. 11, it implicitly repealed FISA's ban on warrantless surveillance. And it has also maintained that the president had the inherent constitutional authority to intercept the communications of foreign powers and their agents - regardless of whether Congress prohibited it. Reminiscent of the administration's position regarding torture, this argument relies upon the idea that the Constitution assigns certain foreign-affairs responsibilities to the president that exclude Congress from having any say in how he might exercise them.

As with the use of torture, the use of secret intelligence outside of the ordinary legal process makes it difficult even to discover the violation, much less challenge it legally. But that does not mean that the issue will not come before the Supreme Court. Although you would imagine that prosecutors are not using secret evidence in criminal trials in which defendants could invoke their Fourth Amendment rights against unlawful search and seizure, defendants in terror trials are now asking courts to force the government to disclose whether such illegal surveillance occurred. Released detainees have already filed civil suits against the government charging torture, detentions and renditions to foreign countries by United States personnel. Such suits could now include claims for unlawful surveillance. Civil-liberties advocates will also bring challenges to the surveillance practices that the president has now acknowledged. And when a new administration is elected, it is not impossible that criminal prosecutions could be brought against the intelligence officials who illegally authorized the wiretaps.

If the issue does reach the court by one or more of these avenues, there is good reason to suspect that both Roberts and Alito, should he be confirmed, will be operating under the influence of an expansive conception of presidential power. Both are products of a conservative movement that has provided the legal justifications for various aspects of the Bush revolution, and both held intensely political jobs in previous Republican administrations. Two decades ago, as a deputy assistant attorney general, Alito argued in a memo that the president should issue "signing statements" when approving legislation - an effort to give the president influence over the courts' power to say what the laws mean. And Roberts, while serving as an appeals court judge, joined an opinion in Hamdan v. Rumsfeld upholding the military commissions being used to try Guantánamo detainees. The court held that the Geneva Convention does not, on its own, create a private right that can be litigated in the courts - a position consistent with wide presidential authority but also conventional wisdom among United States courts dealing with treaty issues. (I submitted a friend-of the-court brief in that case on the right to confront witnesses and evidence.) Past experience does not, of course, necessarily determine a justice's views on the court. But given their profiles and clues from their writings, it is in any case extremely unlikely that the combination of Roberts and Alito would be less deferential to presidential power than the combination of O'Connor and Rehnquist.

III. HOW CONGRESS CAN REDEEM ITSELF


Even if the Supreme Court were inclined to resist efforts to expand presidential power, the truth is that the court cannot do much to restore Congressional authority. We often imagine that the court serves as a sort of neutral umpire controlling the warring political branches. But this is mostly myth. The justices of the Supreme Court are themselves actors in the struggle for power, and when they intervene, they think carefully about how their decisions will affect the court's own legitimacy and authority. Even when the court weighs in on the side of Congress, it often elevates its own powers at Congress's expense. By the very act of interpreting existing laws and declaring something to be within Congress's power (and not the president's), the court affirms that it, not Congress, is the entity capable of making the president listen. Likewise, when Congress allows the court to resolve a power struggle between itself and the executive branch, it effectively concedes that it lacks the will to use its own arsenal of tools to pressure the president.

Consider what happens when Congress actually tries to engage in oversight - for instance, demanding that the president turn over documents concerning prewar intelligence about weapons of mass destruction in Iraq. The president refuses, citing "executive privilege" - a term, by the way, absent in the text of the Constitution. What can Congress do when the president ignores its dictates? One option would be to stop cooperating with the presidential agenda on other issues. Another would be to suspend financing for some relevant program. Holding hearings would be a way to possibly broaden public awareness (though hearings are difficult to carry off without relevant documentation). The ultimate sanction, of course, would be to initiate impeachment proceedings. All of these approaches have costs, though. They would require coordinated action by the Congress and would draw public scrutiny to the issue. By going to the court and asking it to enforce a subpoena - or better, waiting for public-interest groups to do so, as with Vice President Dick Cheney's energy advisory commission - Congress avoids most of these costs.

Once the Supreme Court hears a case involving the balance of powers, the situation actually becomes worse for Congress. The court may find for the president. And even if the court does find that Congress's powers trump those of the president, and the president complies with its ruling, the logical implication is that the president is listening to the court when he was not willing to listen to Congress. This concern was evident in Scalia's dissent in the Hamdi case, in which he asserted that an American citizen in his home country is always entitled to a judicial hearing justifying detention - unless Congress suspends the writ of habeas corpus. To Scalia, the case was about Congress and the president: the former had not authorized the latter to detain citizens without a hearing. Yet far from functioning as a vote of confidence in Congress, Scalia's dissent made Congress look like the patsies that they had been throughout the Guantánamo detentions. Scalia was clearly angry at the president for violating a basic constitutional principle, to be sure. But his anger also reflected his frustration with Congress's reluctance to stand up for its rights.

So how can Congress redeem itself? It could start by clarifying that, in authorizing the president to use force after Sept. 11, it did not mean to give him a blank check to violate existing laws without even telling Congress about the violations. Then it could pass new laws that leave no doubt that it intends to bind the president and his staff on matters relating, for example, to the conduct of war. Senator John McCain's torture bill, for instance, seeks to do just that. In the face of repeated presidential assertions that inhumane treatment does not count as torture and that the president cannot be constrained when it comes to interrogation, the law expressly prohibits cruel interrogation techniques.

But laws that bind the president are, on their own, not enough. Congress must also create meaningful oversight programs with bite to make sure the laws on the books are actually obeyed. The recent proposed bill demanding regular reports from the director of national intelligence about detentions abroad is a step in this direction, but only a step. Without specific provisions stating the content of the testimony that the executive branch must provide, Congress is just asking for the president to elicit an opinion from his lawyers permitting him to ignore the law and then to violate the law secretly. Lest that seem far-fetched, recall that such memos were in fact elicited in the war on terror, and that the violations of our anti-torture laws that took place (according to any reasonable reading of those laws) occurred in facilities whose very existence was classified as a matter of national security. Indeed, even McCain's bill, which prohibits "cruel, inhuman or degrading treatment," could be gutted in practice by an interpretation limiting the meaning of those terms so as to permit existing interrogation techniques.

The chief advantage of oversight hearings is that officials must appear and testify under oath as to what the administration is in fact doing. A lie to a Congressional committee constitutes perjury. Disillusioning as it may be to admit, the threat of prison is probably the only sanction that can reliably assure that executive-branch officials, protected by secrecy laws and presidential orders that may themselves be classified, will come clean about what is going on in the war on terror. Even the most conscientious officials may make ambiguous statements that disclose only part of the truth, and that misleadingly - as when Condoleezza Rice answered questions about rendition and torture at a press conference in Ukraine in December.

Beyond oversight, a newly assertive Congress would also have to create ways to sanction the president if laws were violated. Ordinary criminal prosecution will rarely do the trick, since Congress cannot expect the president to initiate proceedings against himself or his employees for violating a law that he thinks is unconstitutional. The steps for enforcement should therefore come in part, at least, from Congress itself, which could specify upfront, for instance, that if a president were to violate the law, Congress would withdraw financing from certain programs or initiate impeachment proceedings.

With midterm elections coming in the fall, and the president's popularity having fallen, Congress may already be gearing up to take some such steps, as with the request for regular reporting on detention and Iraq and McCain's torture bill. A future Congress controlled by the Democrats would doubtless do much more. But the War Powers Act of 1973 provides a cautionary tale. Without strong and credible evidence that Congress will follow through, the laws Congress passes to limit the president can enter constitutional limbo, their status unknown and their effect uncertain.

The Supreme Court can do little to help Congress along this path, but the court could make the work of restoration harder for Congress were it to rule in favor of the Bush administration's theories of executive power. The judicial approval of an inherent executive power to torture or eavesdrop, laws to the contrary notwithstanding, would be a huge blow to Congress.

The allocation of power within the government is not determined simply by reading the Constitution and figuring out what it says. To the contrary, the balance of powers is established through a game of give and take, a struggle in which each branch fends for itself. An excellent example is the Supreme Court's ruling in Bush v. Gore. The important fact about that decision was not that in assuring President Bush's election, it inaugurated a period of single-party government. It was, rather, that the court deliberately chose to intervene in a process laid out in the Constitution for dealing with electoral disputes - a process according to which Congress, not the court, was given the power to choose the president. Bush would likely have ended up president in either case; but once the court wrested from Congress the constitutional power to decide who won, few in Congress seriously disputed the legitimacy of its actions. The court had spoken, and its decision was treated as final.

The lesson for the balance of powers is a deep one: the prize of power goes to the bold. Right now, the presidency and its supporters have the upper hand. For Congress to regain some of its constitutional prominence, the court will have to keep a level head, and the representatives themselves will have to be willing to take some chances. Such an effort need not be restricted to national security issues - it would be nice if Congress also took more responsibility for making many of the hard domestic policy choices that it currently leaves to administrative agencies. But the national security problem is more pressing, and for the moment it offers Congress the best chance to redeem itself from its recent inaction.

It is customary, when making a plea on behalf of Congress, to give the legislature special consideration because it is the branch originally designed to represent the people. But this is not wholly justified: after all, nowadays the people directly elect the president, and the politicization of Supreme Court nominations ensures a fair amount of popular input into the composition of the court. It is also not certain that a rejuvenated Congress would be more effective in supervising the president than the Supreme Court. The real reason, then, to hope that Congress will resurrect its lost powers is that the balance of powers remains, as the framers thought, the best guarantor of liberty in a constitutional government. The basic fact of presidential power is now irreversible. No one denies that a strong executive is needed to respond to the threat of terrorism. But this just means that the presidency requires greater vigilance than ever to prevent violations of liberty.

No court alone can do the job of protecting liberty from the exercise of executive power. For that most important of tasks, the people's elected representatives need to be actively involved. When we let them abdicate this role, the violations start to multiply, and we get the secret surveillance and the classified renditions and the unnamed torture that we all recognize as un-American. Our Constitution has changed enormously over the last two centuries, and it is sure to change much more in the future. Just how it changes, though, is up to us.

Noah Feldman, a contributing writer for the magazine and a law professor at New York University, is the author most recently of "Divided by God: America's Church-State Problem - and What We Should Do About It."