I want to congratulate Chris Schroeder for creating this timely and important blog. Anyone who has been to Washington, DC, in the last few weeks realize that President Obama has been greeted as a liberator. (For a time, at least, his picture replaced the National Zoo’s pandas on the area’s metro cards.) The public in DC and, according to polls, throughout the nation is optimistic about the President’s potential to solve the many great problems that confront us. His to-do list now even includes finding a cure for cancer. Against this backdrop, it may be quite tempting for an official in the new Administration to take a “by any means necessary” approach to resolving the crises of the day. (I hasten to add that I am not aware of any indication that this actually has happened yet.) For this reason, I think it crucial that there be a community of observers who care about the rule of law and who understand that this commitment means that the President must remain faithful to the law while he responds to the crises of our age. I am thus pleased to join the patrol on this neighborhood watch for separation of powers.
As I watch the executive, I am struck by the reaction of Congress and the public to the many scandals of the Bush Administration. After the abuses of the Nixon Administration, Congress responded with a range of broad framework statutes designed to regulate the exercise of power and to prevent future abuses. The statutes include the War Powers Act, the Foreign Intelligence Surveillance Act, The Federal Election Campaign Act, the Ethics in Government Act, and the Impoundment Control Act to name a few. Where are the framework statutes that respond to what so many perceive as the systemic abuses of power that characterized the Bush Administration? To be sure, there has been some legislation proposed to respond to discrete types of abuse (the OLC Reporting Act, is a salutary example) and it is possible that Congress will craft such legislation over the coming years (several of the examples I cited in connection with the Nixon Administration took some years before they were enacted.) But the sense I get is that there is little clamoring for such laws. Indeed, my sense is that many people regard Barack Obama as the solution. There may be something to this (full disclosure: I worked on the Obama campaign and transition team and personally support his Administration). I say this not because of anything about President Obama in particular. Rather, I mean this as a comment on the response to the abuses of the Nixon Administration. It is at least questionable whether the framework statutes have served their purposes. The War Powers Act has long been regarded as a hollow shell. Although FISA clearly applies to programs such as the National Security Agency’s controversial wiretapping program – the Terrorist Surveillance Program – it did not prevent the Administration from operating that program in secret for five years. The Campaign financing law has been in a constant cycle of abuse and reform since its enactment. The Ethics in Government Act gave us the Independent Counsel provisions that became so unpopular (primarily after the impeachment of President Clinton) that Congress allowed them to lapse. If the Nixon Administration taught us that presidential power is subject to abuse, the ensuing years have taught us that statutes cannot provide a fully adequate remedy. It may be that the lesson of the Bush presidency is that the rule of law is best safeguarded by the personal commitment of the President himself to maintaining the rule of law. If so, this Executive Watch project is all the more vital.
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Why I’m glad to be watching the executive
by Neil KinkopfI want to congratulate Chris Schroeder for creating this timely and important blog. Anyone who has been to Washington, DC, in the last few weeks realize that President Obama has been greeted as a liberator. (For a time, at least, his picture replaced the National Zoo’s pandas on the area’s metro cards.) The public in DC and, according to polls, throughout the nation is optimistic about the President’s potential to solve the many great problems that confront us. His to-do list now even includes finding a cure for cancer. Against this backdrop, it may be quite tempting for an official in the new Administration to take a “by any means necessary” approach to resolving the crises of the day. (I hasten to add that I am not aware of any indication that this actually has happened yet.) For this reason, I think it crucial that there be a community of observers who care about the rule of law and who understand that this commitment means that the President must remain faithful to the law while he responds to the crises of our age. I am thus pleased to join the patrol on this neighborhood watch for separation of powers.
As I watch the executive, I am struck by the reaction of Congress and the public to the many scandals of the Bush Administration. After the abuses of the Nixon Administration, Congress responded with a range of broad framework statutes designed to regulate the exercise of power and to prevent future abuses. The statutes include the War Powers Act, the Foreign Intelligence Surveillance Act, The Federal Election Campaign Act, the Ethics in Government Act, and the Impoundment Control Act to name a few. Where are the framework statutes that respond to what so many perceive as the systemic abuses of power that characterized the Bush Administration? To be sure, there has been some legislation proposed to respond to discrete types of abuse (the OLC Reporting Act, is a salutary example) and it is possible that Congress will craft such legislation over the coming years (several of the examples I cited in connection with the Nixon Administration took some years before they were enacted.) But the sense I get is that there is little clamoring for such laws. Indeed, my sense is that many people regard Barack Obama as the solution. There may be something to this (full disclosure: I worked on the Obama campaign and transition team and personally support his Administration). I say this not because of anything about President Obama in particular. Rather, I mean this as a comment on the response to the abuses of the Nixon Administration. It is at least questionable whether the framework statutes have served their purposes. The War Powers Act has long been regarded as a hollow shell. Although FISA clearly applies to programs such as the National Security Agency’s controversial wiretapping program – the Terrorist Surveillance Program – it did not prevent the Administration from operating that program in secret for five years. The Campaign financing law has been in a constant cycle of abuse and reform since its enactment. The Ethics in Government Act gave us the Independent Counsel provisions that became so unpopular (primarily after the impeachment of President Clinton) that Congress allowed them to lapse. If the Nixon Administration taught us that presidential power is subject to abuse, the ensuing years have taught us that statutes cannot provide a fully adequate remedy. It may be that the lesson of the Bush presidency is that the rule of law is best safeguarded by the personal commitment of the President himself to maintaining the rule of law. If so, this Executive Watch project is all the more vital.
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This entry was posted on February 26, 2009 at 8:23 am and is filed under Commentary, Executive Branch Power. You can follow any responses to this entry through the RSS 2.0 feed. You can skip to the end and leave a response. Pinging is currently not allowed.