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Power Without Persuasion
The Politics of Direct Presidential Action
By William G. Howell PRINCETON UNIVERSITY PRESS
Copyright © 2003 Princeton University Press
All rights reserved.
ISBN: 978-1-4008-7439-2
CHAPTER 1
Presidential Power in the Modern Era
With box cutters and knives, nineteen hijackers took control of four commercial jets on the morning of September 11, 2001, and flew the planes into the towers of the World Trade Center, the Pentagon, and Shanksville, Pennsylvania. The South and North Towers in New York collapsed at 10:05 and 10:28 a.m., respectively. Fires in the Pentagon burned for another seventy-two hours. In all, over three thousand civilians (including several hundred New York City fire fighters and police) died in the attacks. The greatest terrorist act in U.S. history sent politicians scrambling. Not surprisingly, it was the White House that crafted the nation's response, little of which was formally subject to congressional review.
In the weeks that followed, President Bush issued a flurry of unilateral directives to combat terrorism. One of the first was an executive order creating a new cabinet position, Secretary of Homeland Security, which was charged with coordinating the efforts of forty-five federal agencies to fight terrorism. Bush then created a Homeland Security Council to advise and assist the president "with all aspects of homeland security." On September 14, Bush issued an order that authorized the Secretaries of the Navy, Army, and Air Force to call up for active duty reservists within their ranks. Later that month, Bush issued a national security directive lifting a ban (which Gerald Ford originally instituted via executive order 11905) on the CIA's ability to "engage in, or conspire to engage in, political assassination" — in this instance, the target being Osama bin Laden and his lieutenants within al Qaeda, the presumed masterminds behind the September 11 attacks. On September 23, Bush signed an executive order that froze all financial assets in U.S. banks that were linked to bin Laden and other terrorist networks. In early October, when a bill to federalize airport security appeared doomed in the Senate, Bush threatened to issue an executive order accomplishing as much.
The most visible of Bush's unilateral actions consisted of retaliatory military strikes in Afghanistan. Though Congress never passed a formal declaration of war, in the fall of 2001 Bush directed the Air Force to begin a bombing campaign against Taliban strongholds, while Special Forces conducted stealth missions on the ground. Though these commands did not come as executive orders, or any other kind of formal directive, they nonetheless instigated some of the most potent expressions of executive power.1 Within a year Bush's orders resulted in the collapse of the Taliban regime, the flight of tens of thousands of Afghani refugees into Pakistan, the destruction of Afghanistan's social and economic infrastructures, and the introduction of a new governing regime.
It was Bush's unilateral decision to create a new court system, however, that generated the most public controversy. On November 13, 2001, the president signed an order allowing special military tribunals to try any noncitizen suspected of plotting and/or committing terrorist acts or harboring known terrorists. The trials need not be public, Bush declared, and might be held in the United States or abroad. The tribunals can hand down death sentences with only two-thirds support on the panel of five judges, of whom only a majority need be in attendance. Further, the order lifted many of the constitutional protections afforded most individuals accused of crime, such as a guarantee of a trial by a jury of one's peers. According to the order, suspected terrorists "shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on the individual's behalf, in (i) any court of the United States, or any State thereof, (ii) any court of any foreign nation, or (iii) any international tribunal." Bush effectively designed an entirely new court system to mete out justice in its efforts to hunt down and punish suspected terrorists, however they may be identified, and wherever they may be found.
During the proceeding weeks, denunciations of Bush's "sudden seizure of power" ricocheted across the nation's editorial pages. Consider just a handful of the opinions expressed in the New York Times. William Safire protested that the "president of the United States has just assumed what amounts to dictatorial power to jail or execute aliens. Intimidated by terrorists and inflamed by a passion for rough justice, we are letting George W. Bush get away with the replacement of the American rule of law with military kangaroo courts." According to Safire, the order dismissed "'the principles of law and the rules of evidence' that undergird America's system of justice." By Anthony Lewis's account, the order represented an "act of executive fiat, imposed without even consulting Congress. And it seeks to exclude the courts entirely from a process that may fundamentally affect life and liberty." Several days later, Stephen Gillers condemned a "sham process that mocks [lawyers'] constitutional role in ensuring fair trials for their clients."
Constitutional law scholars quickly followed suit. According to Georgetown and Harvard University professors Neal Katyal and Laurence Tribe, the unilateral creation of military tribunals effectively blends executive, legislative, and judicial powers in one person in ways that are "ordinarily regarded as the very acme of absolutism." Worse still, Bush's actions were emblematic of an alarming trend in American politics — a propensity of presidents, especially during times of crisis, to unilaterally impose their will on the American public. As Katyal and Tribe note, "For the President to proceed on his own to alter the jurisdiction of the federal courts, redesigning the very architecture of justice, without any colorable claim that time is too short for Congress to act, is to succumb to an executive unilateralism all too familiar in recent days" (2002, 1260).
In January 2002, the United States began to ship captured members of al Qaeda and the Taliban to the U.S. Naval Base at Guantanamo Bay, Cuba. Public criticism proceeded unabated as pundits debated whether the rights and privileges generally afforded to prisoners of war, as detailed in the 1949 Geneva Convention, should extend to the roughly five hundred Afghani detainees. The United States' closest ally, Britain, began to express concerns over the detainees' legal status. The London Guardian, for instance, called upon the Bush administration "to process its prisoners as quickly as possible in line with the Geneva Convention. Those whose countries will accept them should in due course be returned there by agreement. Others will take more time, but the captives cannot stay indefinitely where they are." By late spring of 2002, public support for Bush's original order, measured both domestically and abroad, began to wane.
No matter, Bush carried onward. The U.S. military continued to interrogate its captives without settling their formal status, refusing even to release their names. Bush suspended the attorney-client privilege for certain suspects. He set additional restrictions on the right of detainees to appeal their cases. And critically, he never bothered to secure legislative authorization before taking any of these actions.
Publicly, members of the Bush administration went to great lengths to stress the privileges and luxuries afforded to the detainees, noting that the military served culturally sensitive meals and that time was set aside daily for prayer and meditation. Bush also backtracked on some matters of dispute. To hand down a death sentence, Bush conceded, a panel's ruling would have to be unanimous. Furthermore, trials would not be held entirely in secret; under specific circumstances, members of the press and public would be allowed to attend.
Still, on most matters Bush gave little ground. The administration refused to capitulate to demands that the captives be granted POW status and, in due course, returned to their countries of origin. To the contrary, Secretary of Defense Donald Rumsfeld repeatedly insisted that the military planned to hold the nameless captives "indefinitely" and that the war on terrorism could proceed for the better part of a decade. As of this writing, the U.S. federal courts have dismissed every case brought before them that directly challenged the detention of prisoners from the Afghan conflict, insisting that they lacked any jurisdiction over military bases in Cuba.5 Congress, too, continues to stand idly by, holding hearings but never taking formal action to either release the detainees or resolve their formal status as prisoners of war.
A war on terrorism obviously gave the president license to exercise his unilateral powers. Bush is not unique in this regard. Throughout the history of the Republic, the public, Congress, and the courts have looked to the president to guide the nation through foreign and domestic crises. And with few exceptions — Hoover? — presidents have met the call.
National crises, however, are not the only opportunity presidents have to unilaterally dictate public policy. Before there was a war on terrorism, Bush unilaterally instituted a wide array of important policy changes. During the first months of his administration, he issued an executive order that instituted a ban on all federal project labor contracts, temporarily setting in flux Boston's $14 billion "Big Dig" and dealing a major blow to labor unions. He later required federal contractors to post notices advising employees that they have a right to withhold the portion of union dues that are used for political purposes. Bush created the White House Office of Faith-Based and Community Initiatives, which was charged with "identify(ing) and remov(ing) needless barriers that thwart the heroic work of faith-based groups." In August 2001, he set new guidelines on federal funding of stem cell research.
Many of Bush's actions overturned Clinton orders passed in the waning days (and, in some instances, hours) of the Democrat's administration. As soon as he took office, Bush instructed the Government Printing Office to halt publication in the Federal Register of any new rules "to ensure that the president's appointees have the opportunity to review any new or pending regulations." The new administration then issued a sixty-day stay on regulations that were published in the register but had not yet taken effect. Shortly thereafter, Bush undid a number of Clinton environmental orders that extended federal protections to public lands, tightened restrictions on pollution runoff in rural areas, established new pollution-reporting requirements for manufacturers of lead compounds, and decreased the percentage of arsenic allowed in drinking water. In addition, Bush reinstituted the ban on federal funding for international agencies that provide abortion counseling, a ban that Clinton had lifted eight years prior.
To effect policy change, Clinton relied just as heavily on his unilateral powers. For much of his tenure, Clinton confronted Republican majorities in Congress who repeatedly killed his legislative initiatives. The list is long, with health care and tobacco legislation ranking near the top. But rather than concede defeat, Clinton "perfected the art of go-alone governing" (Kiefer 1998). After losing major legislative battles, Clinton repeatedly rebounded with a series of steady, incremental reforms, each unilaterally imposed.
Bill Clinton is often perceived as a weak President — a lame duck dogged by scandal, thwarted at many turns by a hostile Republican Congress. ... But the perception of weakness is belied by a largely unnoticed reality. Mr. Clinton is continually stretching his executive and regulatory authority to put his stamp on policy. He has issued a blizzard of executive orders, regulations, proclamations and other decrees to achieve his goals, with or without the blessing of Congress. (Pear 1998, K3)
Nor did this activity decline in the waning years of his administration. Instead, Clinton "engaged in a burst of activity at a point when other presidents might have coasted. ... Executive orders have flown off Clinton's desk, mandating government action on issues from mental health to food safety" (Ross 1999). Rather than wait on Congress, Clinton simply acted, daring his Republican opponents and the courts to try to overturn him. With a few notable exceptions, neither did.
Though Republicans effectively undermined his 1993 health care initiative, Clinton subsequently managed to issue directives that established a patient's bill of rights, reformed health care programs' appeals processes, and set new penalties for companies that deny health coverage to the poor and people with preexisting medical conditions. During the summer of 1998, just days after the Senate abandoned major tobacco legislation, Clinton imposed smoking limits on buildings owned or leased by the executive branch and ordered agencies to monitor the smoking habits of teenagers, a move that helped generate the data needed to prosecute the tobacco industry. While his efforts to enact gun-control legislation met mixed success, Clinton issued executive orders that banned numerous assault weapons and required trigger safety locks on new guns bought for federal law enforcement officials.
While Congress considered impeaching him, Clinton still managed to issue executive orders that expanded the government's role in fighting software piracy, established agencies to declassify all information held by the United States relating to Nazi war criminals, and increased sanctions against political factions within Angola. And during the waning months of his presidency Clinton turned literally millions of acres of land in Nevada, California, Utah, Hawaii, and Arizona into national monuments. Though Republicans in Congress condemned the president for "usurping the power of state legislatures and local officials" and vainly attempting to "salvage a presidential legacy," in the end, they had little choice but to accept the executive orders as law.
Clinton and Bush are not aberrations. Throughout the twentieth century, presidents have used their powers of unilateral action to intervene into a whole host of policy arenas. Examples abound:
• During World War II, Roosevelt issued dozens of executive orders that nationalized aviation plants, shipbuilding companies, thousands of coal companies and a shell plant — all clear violations of the Fifth Amendment's "taking" clause. The courts overturned none of these actions.
• With executive order 9066, Roosevelt ordered the evacuation, relocation, and internment of over 110,000 Japanese Americans living on the West Coast.
• In 1948, Truman desegregated the military via executive order 9981.
• After congressional efforts to construct a program that would send American youth abroad to do charitable work faltered three years in a row, Kennedy unilaterally created the Peace Corps and then financed it using discretionary funds.
• Johnson instituted the first affirmative action policy with executive order 11246.
• Preempting Congress, Nixon used an executive order to design the Environmental Protection Agency not as an independent commission, as Congress would have liked, but as an agency beholden directly to the president.
• By subjecting government regulations to cost-benefit analyses with executive order 12291, Reagan centralized powers of regulatory review.
• In 1992, George Bush federalized the National Guard and used its members to quell the Los Angeles riots.
While the majority of unilateral directives may not resonate quite so loudly in the telling of American history, a growing proportion involve substantive policy matters. Rather than being simply "daily grist-of-the-mill diplomatic matter," presidential directives have become instruments by which presidents actually set all sorts of consequential domestic and foreign policy (Paige 1977). As Peter Shane and Harold Bruff argue in their casebook on the presidency, "presidents [now] use executive orders to implement many of their most important policy initiatives, basing them on any combination of constitutional and statutory powers that is thought to be available" (1988, 88).
(Continues...)
Excerpted from Power Without Persuasion by William G. Howell. Copyright © 2003 Princeton University Press. Excerpted by permission of PRINCETON UNIVERSITY PRESS.
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