PUBLISHED:November 21, 2008

The Bush administration and executive power

Nov. 20, 2008 – An expert on executive power said the checks and balances intended to curtail presidential overreach failed during the Bush administration when he spoke at Duke Law on Nov. 12. Georgia State University law professor Neil Kinkopf spoke as part of the “Lessons Learned” series co-sponsored by the Program in Public Law and the Duke Journal for Constitutional Law and Public Policy.

A veteran of the Office of Legal Counsel in the U.S. Department of Justice, Kinkopf said presidents can employ one of two competing strategies in their decision-making: “One is the unilateral and confrontational conception of presidential power. The other is more accomodationist and cooperative.” He compared the choice between the two models with Machiavelli’s infamous question, whether it is better for a leader to be loved or feared.

“I think it’s pretty clear the Bush administration has chosen the fear model,” Kinkopf stated.

Kinkopf cited the administration’s secret deliberations on warrantless surveillance and how to process enemy combatants in Iraq and Afghanistan as two examples of its confrontational approach to presidential power.

“[Members of the Bush administration] deliberated amongst themselves, not publicly, not with Congress,” he said regarding the latter. “They just decided how enemy combatants would be treated, and in fact asserted that it was the president’s prerogative alone, impervious to the review of both Congress and the courts.”

With its passage of the Military Commissions Act of 2006, Congress approved the administration’s approach, Kinkopf added, reflecting on why the president had acted unilaterally.

“I think strategically the president followed the unilateral model not simply to establish the kinds of military commissions he wanted, but to establish the fact that he has that kind of power, that he doesn’t have to consult with Congress,” Kinkopf said.

Kinkopf pointed to Republican losses in the 2006 mid-term election and the Iraq Study Group’s recommendations to scale back the Iraq war as repudiations of the president’s strategy.

“What does the president do in response? The surge,” he pointed out. “The president decided, ‘I’m the decider. I make these decisions, I have my own view, and the rest of you? Well, like it or lump it, this is how it’s going.’”

Historically, the Framers’ intended congressional checks on executive power overreach have been stymied by politics of both parties, Kinkopf said.

Elected officials who belong to the president’s party tend to capitulate to the executive, he said. “Madison’s account, which relies on institutional loyalty, doesn’t take into account party loyalty. …[I]f they’re from the president’s own party, [members] pursue their own ambition and self-interest by making sure the president is successful, by not doing anything that would embarrass the president, because when the president looks bad, the party looks bad, and Congress changes hands.”

Facing election every two years, members of the House of Representatives also can be too distracted by “chronic campaigning” to fully discharge their executive oversight function. And their own presidential aspirations may affect House and Senate members’ willingness to curb executive excess, he suggested, pointing out that more than 10 ran in party primaries during the last election cycle.

“How effective can Congress be as a check on presidential power when so may of its members hope to one day hold the office of president, or would be happy to give up their current job to serve in a president’s cabinet?” he asked.

Kinkopf pointed to the “institutional advantages” of the executive branch in explaining why even a Democratic-controlled congress failed to effectively check the Bush administration in the past two years.

“The executive branch has nearly all of the government’s expertise and knowledge, and that resides in the agencies of the federal government, and they are under the control of the president. The executive branch has that information and can, and over their last eight years certainly has, manipulated that information. They have disclosed what is useful and withheld what isn’t.”

The judicial branch has not been an effective balance to executive power either, Kinkopf said, citing the example of the Supreme Court’s June 2008 ruling in Boumediene v. Bush that enemy combatants detained at Guantanamo Bay have a right of habeas review.

“Six years after the beginning of the war on terror, it doesn’t tell us what rights are guaranteed. We haven’t even begun to address that…. So what kind of a check has the court really been on executive power?”

Ultimately, citizens will be the most effective watchdogs of presidential overreach, Kinkopf said.

“Watch and join,” he said. “Join the American Constitution Society or the Federalist Society, whichever one you’re oriented towards. Join the ACLU, join whatever group it is that is congenial to your views that watches the way power is exercised, because it is subject to abuse in any administration… It is the public, ultimately, that will stand as a check or not.”