The Imperial Presidency


Oy. Harold Meyerson reports that Andy Card is confirming some of my worst fears on Harriet Miers:

As White House chief-of-staff, [Card] found the most intriguing article, he said, to be Article II, which established the presidency and the executive branch. Miers, he continued, understood Article II as well, and would defend it “when challenged by those given the power to challenge it by Article I [i.e., the Congress] and Article III [i.e., the courts].” …

At minimum, he suggested that Miers would be the staunchest proponent of executive power over that of the other two branches that the Court had seen in a very long time.

It’s worth unpacking this statement, because it’s much more significant than one might think at first glance. Neil Kinkopf, a former lawyer in the Clinton administration’s Office of Legal Counsel, wrote a Legal Affairs article a while back noting that Republican administrations for decades have adhered to this “exclusivity” view of the executive branch—the view that the Constitution divides executive and congressional power into separate spheres, and one cannot encroach on the other. The view appeared in 1989, when then-Assistant Attorney General William Barr wrote a memo to all federal agencies saying: “Only by consistently and forcefully resisting… congressional incursions can Executive Branch prerogatives be preserved.” And it came up in the torture memos written in 2002 by Jay Bybee and John Yoo, arguing that the executive has sole control over the military, and as such, Congress cannot stop the president from ordering torture or other coercive interrogation methods.

At least in modern times, the Supreme Court has generally dismissed this “exclusivity” view, with important results. In 1952, the Court barred Harry Truman from seizing steel mills under strike, on the view that the Constitution “enjoins upon its branches separateness but interdependence.” In 1974, the Court rejected Nixon’s claim of executive privilege to withhold Watergate tapes. In 1988 the Court upheld a congressional law creating an “independent counsel” to investigate and prosecute government wrongdoing, on the theory that Congress may regulate the executive branch. The constitutional theory outlined by Card—and, apparently, Harriet Miers—would, apparently, reject this reasoning.

Does it matter? Yes, and not just because such a view would prevent Congress from banning torture. In his Legal Affairs article, Kinkopf noted that in 1988 Congress required the Department of Health and Human Services to mail every household an educational pamphlet on AIDS. The Reagan administration didn’t like the pamphlet and refused to mail it, and the Reagan OLC argued that Congress was encroaching on the president’s exclusive right to administer the DHHS. Congress ordered the mailing regardless, but a Court filled with Miers-esque judges might have sided with Reagan. In 1989 the first Bush administration tried to use the “exclusivity” view before the Court to strike down a law authorizing whistleblowers to bring lawsuits on behalf of the federal government against fraudulent contractors. And so on. A judge sympathetic to the “imperial presidency” view is a very bad thing, and seems to me like a much bigger deal than Miers’ supposed lack of qualifications.

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