WHY AND HOW PRESIDENTS GOT SO MUCH MORE POWER THAN THEY SHOULD HAVE... 1980-1992 November 18, 1980: Cheney Urges Reagan’s Chief of Staff to Push for ‘Restoration’ of Presidential Powers Edit event Incoming presidential chief of staff James Baker asks a former chief of staff, Dick Cheney (see November 4, 1975 and After), for advice on handling the job. Baker takes four pages of handwritten notes covering his conversation with Cheney. Most of the notes cover mundane topics such as personnel and managing the president’s schedule. But Cheney offers at least one piece of policy advice. According to Baker’s notes: “Pres. seriously weakened in recent yrs. Restore power & auth [authority] to Exec Branch—Need strong ldr’ship. Get rid of War Powers Act—restore independent rights.” Baker notes Cheney’s emphasis of this last idea by marking it with two double lines and six asterisks, and a note in the margin, “Central theme we ought to push.” [Savage, 2007, pp. 43] Entity Tags: Richard (“Dick”) Cheney, James A. Baker Category Tags: Expansion of Presidential Power December 1980: Court Rules that ‘State Secrets’ Privilege Disallows Civilians from Obtaining Non-Classified Information Edit event A federal court rules that because of the government’s “state secrets” privilege (see March 9, 1953), a civilian plaintiff suing the US Navy over a contractual agreement cannot even access “non-privileged,” or unclassified, information from the Navy because to do so might “threaten disclosure” of material that goes against “the overriding interest of the United States… preservation of its state secrets privilege precludes any further attempt to pursue litigation.” [Siegel, 2008, pp. 196-197] Entity Tags: US Department of the Navy Category Tags: Expansion of Presidential Power, Government Acting in Secret, Government Classification, State Secrets February 1981 and After: Reagan Officials Revive Scheme to Purge Bureaucracy of ‘Dissidents’ Edit event Reagan administration officials decide to revive the Nixon-era scheme to use the Office of Management and Budget (OMB) to purge the federal bureaucracy of “dissidents” and replace them with loyal conservatives (see 1970 and After). As part of the plan, President Reagan issues an executive order requiring all agencies to submit proposed new policies to the OMB for review before they can be put into effect. [Savage, 2007, pp. 304-305] Entity Tags: Reagan administration, Ronald Reagan, Office of Management and Budget Category Tags: Expansion of Presidential Power September 1982: Courts Uphold ‘State Secrets’ Privilege Edit event In the second of two rulings in the case of Halkin v Helms, the judiciary comes down squarely on the side of the US government against charges of illegal surveillance and wiretapping leveled against American anti-war protesters. The district and appellate courts uphold the federal government’s “state secrets” claim as codified in US v Reynolds (see March 9, 1953), thereby denying the plaintiffs the right to see government information that they claim would prove their case. The DC Court of Appeals writes that the federal courts do not have any constitutional role as “continuing monitors of the wisdom and soundness of Executive action,” and instead the courts “should accord utmost deference to executive assertions of privilege on grounds of military or diplomatic secrets… courts need only be satisfied that there is a reasonable danger” that military secrets might be exposed. [Siegel, 2008, pp. 196-196] Category Tags: Expansion of Presidential Power, Government Acting in Secret, Government Classification, State Secrets June-July 1983: Future Chief Justice Advocates Expanded Presidential Powers Edit event The Supreme Court rules in INS v. Chadha that Congress has no right to issue what it calls “legislative vetoes,” essentially provisions passed by Congress giving the executive branch specific powers but with Congress reserving the right to veto specific decisions by the executive branch if it does not approve of the decisions made by the executive. Congress had relied on such “legislative vetoes” for years to curb the expanding power of the president. The Court strikes down hundreds of these “legislative vetoes” throughout federal law. Congress quickly schedules hearings to decide how to respond to the Court’s ruling. White House attorney John Roberts (see September 29, 2005), a young, fast-rising conservative, is one of a team of lawyers assigned to review the administration’s upcoming testimony before Congress. Some of the lawyers want to push Congress to place independent agencies such as the Federal Trade Commission (FTC) and Food and Drug Administration (FDA) under White House control—part of the evolving “unitary executive” theory of presidential power (see April 30, 1986). Roberts writes: “With respect to independent agencies… the time may be ripe to reconsider the existence of such entities, and take action to bring them back within the executive branch.… I agree that the time is ripe to reconsider the Constitutional anomaly of independent agencies… More timid souls may, however, desire to see this deleted as provocative.” [Savage, 2007, pp. 256-257] Entity Tags: Reagan administration, Food and Drug Administration, Federal Trade Commission, John G. Roberts, Jr, US Supreme Court Category Tags: Expansion of Presidential Power October 1983: Future Chief Justice Claims President Has ‘Inherent Authority’ to Deploy US Troops without Congressional Approval Edit event Young White House attorney John Roberts (see September 29, 2005), an advocate of expanded presidential powers (see June-July 1983), is selected to respond to a letter from retired Supreme Court Justice Arthur Goldberg. The former justice is commenting on the Reagan administration’s decision to unilaterally invade the tiny Caribbean island nation of Grenada. Goldberg wrote that President Reagan probably did violate the Constitution by sending troops to Grenada without Congressional approval, and in that sense has left himself open to impeachment. However, he added, the invasion had succeeded in establishing democracy in that nation. Therefore Reagan’s actions should be compared to those of President Abraham Lincoln during the Civil War, because, like Lincoln, he “acted in good faith and in the belief that this served our national interest” (see April 12 - July 1861). Drafting the letter for Reagan’s signature, Roberts thanks Goldberg for his defense of Reagan but insists that the invasion was perfectly legal. The president, Roberts writes, has “inherent authority in international affairs to defend American lives and interests and, as commander in chief, to use the military when necessary in discharging these responsibilities.” [Savage, 2007, pp. 257] Entity Tags: Reagan administration, John G. Roberts, Jr, Arthur Goldberg, Ronald Reagan Category Tags: Expansion of Presidential Power 1984-1985: Reagan Administration Foiled in Attempting to Use Signing Statement to Ignore Law Edit event Congress passes the Competition in Contracting Act. President Reagan signs the bill but issues a signing statement instructing the executive branch that a portion of the bill is unconstitutional, and directs agencies not to obey the law created by that section. A losing bidder who would have won a contract under that portion of the bill files a lawsuit, and a federal judge rules that the Reagan administration has no choice but to follow the entirety of the law. Attorney General Edwin Meese insists that the executive branch has the inherent power to interpret the Constitution as it sees fit, and declares the administration will not obey the judge’s ruling. An appeals court upholds the judge’s ruling and criticizes the Reagan administration for trying to seize a sort of line-item veto power without going through Congress. The House Judiciary Committee votes to cut off funding for Meese’s office unless the White House obeys the court rulings, and Meese withdraws his objections. [Savage, 2007, pp. 231-232] Entity Tags: Ronald Reagan, House Judiciary Committee, Edwin Meese, Reagan administration Category Tags: Court Procedures and Verdicts, Expansion of Presidential Power February 13, 1984: Future Supreme Court Justice Says Presidential Papers Should Remain Secret Edit event Young conservative White House lawyer John Roberts (see September 29, 2005), an advocate of expanded presidential powers (see June-July 1983 and October 1983), advises senior Reagan officials that the White House should challenge the 1978 Presidential Records Act. To Roberts’s mind, the law goes much too far in requiring that presidential papers be considered government property and should, with some exceptions, be released to the public 12 years after a president leaves office. The law infringes on the right of a president to keep information secret, Roberts argues. Later, he will argue that the 12-year rule is far too brief and, as it would “inhibit the free flow of candid advice and recommendations within the White House,” is unconstitutional. [Savage, 2007, pp. 258] Entity Tags: Reagan administration, John G. Roberts, Jr, Presidential Records Act Category Tags: Expansion of Presidential Power May 16, 1984: Future Supreme Court Justice Says President Should Retain Control over National Archives Edit event Young conservative White House lawyer John Roberts (see September 29, 2005), an advocate of expanded presidential powers (see June-July 1983 and October 1983), expands on his previous argument that the president’s papers and documents should remain secret and unavailable to the public (see February 13, 1984). Roberts writes that the Reagan administration should oppose a bill pending in Congress that would make the National Archives a separate agency, independent of the White House. Roberts writes that the “legislation could grant the archivist [the head of the National Archives] some independence from presidential control, with all the momentous constitutional consequences that would entail.” Others in the White House disagree with Roberts, and the administration does not oppose the bill. Roberts suggests that President Reagan attach a signing statement to the bill making it clear that Reagan has the power to fire the archivist if he/she tries to disobey the White House in releasing a presidential document. [Savage, 2007, pp. 258] Entity Tags: National Archives and Records Administration, Reagan administration, John G. Roberts, Jr Category Tags: Expansion of Presidential Power, Signing Statements November 1984: Court Broadens State Secrets Privilege Edit event The DC Court of Appeals rejects a claim by civilian plaintiffs to force the government to disclose classified information as part of a lawsuit, citing the “state secrets” privilege (see March 9, 1953). Furthermore, the court broadens the definition of “state secrets” to include “disclosure of intelligence-gathering methods or capabilities and disruption of diplomatic relations.” [Siegel, 2008, pp. 197] Category Tags: Court Procedures and Verdicts, Expansion of Presidential Power, Government Acting in Secret, Government Classification, State Secrets 1985: Reagan Withdraws US from Treaty with Nicaragua Edit event President Reagan unilaterally withdraws the US from the 1956 Friendship, Commerce, and Navigation Treaty with Nicaragua. He also ends the US’s acceptance of compulsory jurisdiction for disputes heard by the UN International Court of Justice, which had cited the treaty in a ruling against the US over its mining of Nicaraguan harbors. The actions are well beyond any presidential powers granted by the Constitution, but neither Congress nor the media raise any serious objections. [Savage, 2007, pp. 354] Entity Tags: Ronald Reagan Timeline Tags: Iran-Contra Affair Category Tags: Expansion of Presidential Power January 1985: Reagan Administration Blocks Agency Actions on Ideological Basis Edit event The Reagan administration takes another step in attempting to “purge” the federal bureaucracy of those who disagree with its policies (see February 1981 and After). President Reagan issues an executive order requiring agencies to annually submit a cost-benefit analysis of their proposed new rules to the White House, giving administration officials the chance to object to, delay, and block regulations it opposes for ideological reasons. Reagan attorney Douglas Kmiec will later write that this scheme is a major part of the Reagan administration’s attempt to implement the “unitary executive” theory of executive power (see April 30, 1986). Kmiec will write that though White House objections have no legal weight because Congress has given the agencies the power to make rules by law, the White House often wins the argument anyway. [Savage, 2007, pp. 304-305] Entity Tags: Douglas Kmiec, Reagan administration Category Tags: Expansion of Presidential Power August 23, 1985 - December 1985: Justice Department Moves to Include Presidential Signing Statements in Legislative Histories Edit event Steven Calabresi joins the Justice Department. Calabresi is a young conservative lawyer who has clerked for appeals court Robert Bork, who failed to secure a position on the Supreme Court just months before (see July 1-October 23, 1987). Calabresi, a co-founder of the Federalist Society of conservative lawyers and judges, joins forces with another ambitious young Justice Department lawyer, John Harrison, and the two begin working to expand the power of the president. Calabresi and Harrison decide that an aggressive use of presidential signing statements can advance the president’s authority to the detriment of the legislative and judicial branches. Unfazed by a recent judicial rejection of just such signing statement usage (see 1984-1985), Calabresi and Harrison write a memo to Attorney General Edwin Meese advocating the issuing of more signing statements as part of a larger strategy to increase the president’s influence over the law. Calabresi and Harrison are interested in how what they call “activist judges” use the legislative history of a bill that became law to interpret that law’s meaning in subsequent judicial actions. The two lawyers believe that by issuing signing statements, the president can create a parallel record of presidential interpretations of potentially ambiguous laws to help guide judicial decisions. Meese approves of the idea, and in December has the West Publishing Company, which prints the US Code Congressional and Administration News, the standard collection of bills’ legislative history, begin including presidential signing statements in its publications. In 2007, author Charlie Savage will call Meese’s move “a major step in increasing the perceived legitimacy of the device.” [Savage, 2007, pp. 232] In 2007, Calabresi will say: “I initially thought of signing statements as presidential legislative history. I’ve subsequently come to think of them as being important vehicles by which presidents can control subordinates in the executive branch. They subsequently came to be important to the unitary executive [theory of presidential power].” [Savage, 2007, pp. 234] Entity Tags: John Harrison, Charlie Savage, Federalist Society, West Publishing Company, US Department of Justice, Edwin Meese, Robert Bork, Steven Calabresi, US Supreme Court Category Tags: Expansion of Presidential Power, Signing Statements October 1985: Justice Department Official Advocates Increased Use of Presidential Signing Statements Edit event Ralph Tarr, the acting head of the Justice Department’s Office of Legal Counsel, drafts a memo explaining how the White House has issued signing statements up until now (see August 23, 1985 - December 1985), and makes recommendations on how to improve the process. Tarr, acting at the behest of an aide to Attorney General Edwin Meese, issues what author Charlie Savage will call “a prescient seven-page manifesto.” Tarr writes that signing statements are “presently underutilized and could become far more important as a tool of presidential management of the agencies, a device for preserving issues of importance in the ongoing struggle for power with Congress, and an aid to statutory interpretation for the courts.” Tarr writes that signing statements have the potential to be used as a threat “with which to negotiate concessions from Congress.” The statements can also be used to tell executive branch agencies how to interpret a law: “The president can direct agencies to ignore unconstitutional provisions or to read provisions in a way that eliminates constitutional or policy problems. This direction permits the president to seize the initiative in creating what will eventually be the agency’s interpretation.” [Savage, 2007, pp. 232-233] Entity Tags: Edwin Meese, Charlie Savage, Ralph Tarr, Reagan administration, Office of Legal Counsel (DOJ) Category Tags: Expansion of Presidential Power, Signing Statements February 6, 1986 and After: Justice Department Recommends Incremental Increase in Use of Signing Statements Edit event Justice Department lawyer Samuel Alito, a member of the department’s Litigation Strategy Working Group, writes a memo advocating the creation of a pilot project designed to increase the frequency and impact of presidential signing statements (see August 23, 1985 - December 1985 and October 1985). The rationale is to use signing statements to “increase the power of the executive to shape the law.” Alito focuses on the use of signing statements to parallel the legislative history of a bill, a relatively modest view, but still recognizes the potentially revolutionary nature of the idea. He writes that signing statements must be used incrementally, so as not to draw undue attention from civil libertarians and key Congressional members. “[D]ue to the novelty of the procedure and the potential increase of presidential power,” he writes, “[C]ongress is likely to resent the fact that the president will get the last word on questions of interpretation.” Alito suggests that President Reagan begin issuing signing statements only on bills affecting the Justice Department, and later issue such statements for bills that affect other areas of the federal government. “As an introductory step, our interpretative statements should be of moderate size and scope,” he writes. “Only relatively important questions should be addressed. We should concentrate on points of true ambiguity, rather than issuing interpretations that may seem to conflict with those of Congress. The first step will be to convince the courts that presidential signing statements are valuable interpretive tools.” President Reagan will issue signing statements that challenge, interpret, or actually rewrite 95 sections of bills, far more than any other president. His successor, George H. W. Bush, will challenge 232 sections of bills. [Savage, 2007, pp. 233-234] Entity Tags: Litigation Strategy Working Group, George Herbert Walker Bush, Samuel Alito, US Department of Justice, Ronald Reagan Category Tags: Expansion of Presidential Power, Signing Statements April 11, 1986: Cheney Defends White House’s Unilateral Decision to Bomb Libya Edit event After Islamic militants bomb a Berlin discotheque, killing two American soldiers (see April 5, 1986 and After), the White House blames Libyan dictator Mu’ammar al-Qadhafi and prepares to attack Libya in retaliation. Some members of Congress, including Senate Armed Services Committee chairman Sam Nunn (D-GA), question the appropriateness of the Reagan administration committing what may well be an act of war without consulting Congress. Others say the White House should make public its case against Libya before launching what in essence is the opening salvo in a war, instead of insisting that the evidence against Libya must remain classified. However, Representative Dick Cheney (R-WY) staunchly defends the White House’s unilateral action. He tells a PBS reporter that “if the president of the United States reviews it and feels it’s adequate,” then the nation should trust what he says about classified intelligence. “It seems to me that this is a clear-cut case where the president as commander in chief… is justified in taking whatever action he deems appropriate and discussing the details with us after the fact.” [Savage, 2007, pp. 52] Entity Tags: Senate Armed Services Committee, Mu’ammar al-Qadhafi, Reagan administration, Richard (“Dick”) Cheney, Sam Nunn Category Tags: Expansion of Presidential Power April 30, 1986: Meese Report Creates Unitary Executive Theory Edit event Edwin Meese.Edwin Meese. [Source: GQ ()]Attorney General Edwin Meese receives a report, “Separation of Powers: Legislative-Executive Relations.” Meese had commissioned the report from the Justice Department’s Domestic Policy Committee, an internal “think tank” staffed with hardline conservative scholars and policy advisers. Recommendations for Restoring, Expanding Executive Power - The Meese report approvingly notes that “the strong leadership of President Reagan seems clearly to have ended the congressional resurgence of the 1970s.” It lays out recommendations for restoring the power taken from the executive branch after Watergate and Vietnam, and adding new powers besides. It recommends that the White House refuse to enforce laws and statutes that “unconstitutionally encroach upon the executive branch,” and for Reagan to veto more legislation and to use “signing statements” to state the White House’s position on newly passed laws. It also assails the 1972 War Powers Resolution and other laws that limit presidential power. Reinterpreting the Separation of Powers and the Concept of Checks and Balances - Perhaps most importantly, the Meese report claims that for 200 years, courts and scholars alike have misunderstood and misinterpreted the Founders’ intentions in positing the “separation of powers” system (see 1787 and 1793). The belief that the Constitution mandates three separate, co-equal branches of government—executive, judicial, and legislative—who wield overlapping areas of authority and work to keep each of the other branches from usurping too much power—a concept taught in school as “checks and balances”—is wrong, the report asserts. Instead, each branch has separate and independent sets of powers, and none of the three branches may tread or encroach on the others’ area of responsibility and authority. “The only ‘sharing of power’ is the sharing of the sum of all national government power,” the report claims. “But that is not joint shared, it is explicitly divided among the three branches.” According to the report, the White House should exercise total and unchallenged control of the executive branch, which, as reporter and author Charlie Savage will later explain, “could be conceived of as a unitary being with the president as its brain.” The concept of “checks and balances” is nothing more than an unconstitutional attempt by Congress to encroach on the rightful power of the executive. This theory of presidential function will soon be dubbed the “unitary executive theory,” a title adapted from a passage by Alexander Hamilton in the Federalist Papers. [Savage, 2007, pp. 47-48] Charles Fried, Reagan’s solicitor general during the second term, will later write that though the unitary executive theory displays “perfect logic” and a “beautiful symmetry,” it is difficult to defend, because it “is not literally compelled by the words of the Constitution. Nor did the framers’ intent compel this view.” [Savage, 2007, pp. 50] Entity Tags: Charles Fried, Reagan administration, Domestic Policy Committee, US Department of Justice, Ronald Reagan, Edwin Meese, Charlie Savage Category Tags: Expansion of Presidential Power January 1988: Appeals Court Rules Independent Counsel Law Violates ‘Doctrine of a Unitary Executive’ Edit event A federal appeals court rules 2-1 in favor of Theodore Olson, the former head of the Justice Department’s Office of Legal Counsel, who has refused to comply with a subpoena issued as part of an independent counsel’s investigation into political interference at the Environmental Protection Agency (EPA). Olson’s position is that the independent counsel is illegal under the Constitution, as interpreted by the so-called “unitary executive theory” (see April 30, 1986). One of the appellate court judges, Carter appointee Ruth Bader Ginsberg, argues that the independent counsel law is perfectly constitutional, and fits with the Founding Fathers’ vision of a system of “checks and balances” among the three governmental branches. But Reagan appointees Laurence Silberman and Stephen Williams outvote Ginsberg. Silberman, who writes the majority opinion, is a longtime advocate of increased executive power, and calls the independent counsel law “inconsistent with the doctrine of a unitary executive.” The Supreme Court will strike down Silberman’s ruling (see June 1988), but the independent counsel will not bring charges against Olson. [Savage, 2007, pp. 46-49] Entity Tags: Office of Legal Counsel (DOJ), Environmental Protection Agency, Laurence Silberman, Stephen Williams, Theodore (“Ted”) Olson, US Supreme Court, Ruth Bader Ginsberg Category Tags: Court Procedures and Verdicts, Expansion of Presidential Power June 1988: Supreme Court Upholds Independent Counsel Law Edit event In a 7-1 ruling, the Supreme Court rules that the independent counsel law is Constitutional and valid. The ruling overturns a recent appeals court ruling striking down the law because it conflicts with the “unitary executive” theory of government (see January 1988). The ruling stuns the Reagan administration, who had fiercely argued against the independent counsel law, in part because conservative justice William Rehnquist authors the majority opinion. Only Reagan appointee Antonin Scalia votes in favor of the unitary executive. [Savage, 2007, pp. 46-49] Entity Tags: Antonin Scalia, US Supreme Court, William Rehnquist, Reagan administration Category Tags: Court Procedures and Verdicts, Expansion of Presidential Power November 18, 1988: President Reagan Assigns Wide Range of Emergency Preparedness Responsibilities Edit event President Ronald Reagan signs Executive Order 12656, assigning a wide range of emergency responsibilities to a number of executive departments. The order calls for establishing emergency procedures that go far beyond the nation’s standard disaster relief plans. It offers a rare glimpse of the government’s plans for maintaining “continuity of government” in times of extreme national emergency. The order declares the national security of the country to be “dependent upon our ability to assure continuity of government, at every level, in any national security emergency situation,” which is defined as “any occurrence, including natural disaster, military attack, technological emergency, or other emergency, that seriously degrades or seriously threatens the national security of the United States.” The order instructs department leaders to establish various protocols for crisis situations, including rules for delegating authorities to emergency officials, establishing emergency operating facilities, protecting and allocating the nation’s essential resources, and managing terrorist attacks and civil disturbances. The plans are to be coordinated and managed by the National Security Council and the Federal Emergency Management Agency (FEMA). The presidential order suggests certain laws may have to be altered or expanded to carry out the plans. Although it encourages federal agencies to base the emergency protocols on “existing authorities, organizations, resources, and systems,” it also calls on government leaders to identify “areas where additional legal authorities may be needed to assist management and, consistent with applicable executive orders, take appropriate measures toward acquiring those authorities.” According to the executive order, the plans “will be designed and developed to provide maximum flexibility to the president.” Executive Order 12656 gives specific instructions to numerous federal departments: bullet The Department of Justice is ordered to coordinate emergency “domestic law enforcement activities” and plan for situations “beyond the capabilities of state and local agencies.” The Justice Department is to establish plans for responding to “civil disturbances” and “terrorism incidents” within the US that “may result in a national security emergency or that occur during such an emergency.” The attorney general is to establish emergency “plans and procedures for the custody and protection of prisoners and the use of Federal penal and correctional institutions and resources.” The Department of Justice is also instructed to develop “national security emergency plans for regulation of immigration, regulation of nationals of enemy countries, and plans to implement laws for the control of persons entering or leaving the United States.” The attorney general is additionally instructed to assist the “heads of federal departments and agencies, state and local governments, and the private sector in the development of plans to physically protect essential resources and facilities.” bullet The Department of Defense, acting through the Army, is to develop “overall plans for the management, control, and allocation of all usable waters from all sources within the jurisdiction of the United States.” The secretary of defense is to arrange, “through agreements with the heads of other federal departments and agencies, for the transfer of certain federal resources to the jurisdiction and/or operational control of the Department of Defense in national security emergencies.” The secretary of defense is also instructed to work with industry, government, and the private sector, to ensure “reliable capabilities for the rapid increase of defense production.” bullet The Department of Commerce is ordered to develop “control systems for priorities, allocation, production, and distribution of materials and other resources that will be available to support both national defense and essential civilian programs.” The secretary of commerce is instructed to cooperate with the secretary of defense to “perform industry analyses to assess capabilities of the commercial industrial base to support the national defense, and develop policy alternatives to improve the international competitiveness of specific domestic industries and their abilities to meet defense program needs.” The Commerce Department is also instructed to develop plans to “regulate and control exports and imports in national security emergencies.” bullet The Department of Agriculture is ordered to create plans to “provide for the continuation of agricultural production, food processing, storage, and distribution through the wholesale level in national security emergencies, and to provide for the domestic distribution of seed, feed, fertilizer, and farm equipment to agricultural producers.” The secretary of agriculture is also instructed to “assist the secretary of defense in formulating and carrying out plans for stockpiling strategic and critical agricultural materials.” bullet The Department of Labor is ordered to develop plans to “ensure effective use of civilian workforce resources during national security emergencies.” The Labor Department is to support “planning by the secretary of defense and the private sector for the provision of human resources to critical defense industries.” The Selective Service System is ordered to develop plans to “provide by induction, as authorized by law, personnel that would be required by the armed forces during national security emergencies.” The agency is also vaguely instructed to establish plans for “implementing an alternative service program.” bullet The Transportation Department is to create emergency plans to manage and control “civil transportation resources and systems, including privately owned automobiles, urban mass transit, intermodal transportation systems, the National Railroad Passenger Corporation, and the St. Lawrence Seaway Development Corporation.” The Transportation Department is also to establish plans for a “smooth transition” of the Coast Guard to the Navy during a national security emergency. The Transportation Department is additionally instructed to establish plans for “emergency management and control of the National Airspace System, including provision of war risk insurance and for transfer of the Federal Aviation Administration, in the event of war, to the Department of Defense.” bullet The Department of the Treasury is ordered to develop plans to “maintain stable economic conditions and a market economy during national security emergencies.” The Treasury Department is to provide for the “preservation of, and facilitate emergency operations of, public and private financial institution systems, and provide for their restoration during or after national security emergencies.” bullet The Department of Energy is to identify “energy facilities essential to the mobilization, deployment, and sustainment of resources to support the national security and national welfare, and develop energy supply and demand strategies to ensure continued provision of minimum essential services in national security emergencies.” bullet The Department of Health and Human Services is instructed to develop programs to “reduce or eliminate adverse health and mental health effects produced by hazardous agents (biological, chemical, or radiological), and, in coordination with appropriate federal agencies, develop programs to minimize property and environmental damage associated with national security emergencies.” The health secretary is also to assist state and local governments in the “provision of emergency human services, including lodging, feeding, clothing, registration and inquiry, social services, family reunification, and mortuary services and interment.” [US President, 11/18/1988] Entity Tags: US Department of Agriculture, Selective Service System, US Department of Labor, US Department of Defense, US Department of Commerce, Ronald Reagan, National Security Council, US Department of Health and Human Services, US Department of Transportation, US Department of the Treasury, Federal Emergency Management Agency, US Department of Justice, US Department of Energy Category Tags: Expansion of Presidential Power, Continuity of Government 1989: ’Council on Competitiveness’ Blocks Regulations Business Opposes Edit event President George H. W. Bush places Vice President Dan Quayle in charge of the “Council on Competitiveness,” whose job is to review proposed agency regulations that arrive at the White House (see January 1985). Quayle’s council bottles up rules that industry opposes, and sometimes blocks them entirely by claiming that they post an excessive burden on businesses. [Savage, 2007, pp. 305] Entity Tags: Dan Quayle, George Herbert Walker Bush, Council on Competitiveness Category Tags: Expansion of Presidential Power 1989: Cheney Advocates Predominant Executive Power for Foreign Policy Edit event Representative Dick Cheney (R-WY) publishes an essay for the neoconservative American Enterprise Institute (AEI), apparently written either by his Iran-Contra commission colleague Michael Malbin or by Cheney and Malbin together, but printed under Cheney’s name. The essay is titled “Congressional Overreaching in Foreign Policy,” and covers what he terms “congressional aggrandizement” of presidential powers. Congress Has No Place in Determining, Implementing US Foreign Policy - Cheney’s essay bluntly states his belief that Congress has no business interfering in the president’s power to determine and implement the nation’s foreign policy; in general, the essay indicates Cheney’s disdain for the legislative branch of which he has been a member. He writes, in part: “Broadly speaking, the Congress was intended to be a collective, deliberative body. When working at its best, it would slow down decisions, improve their substantive content, subject them to compromise, and help build a consensus behind general rules before they were to be applied to the citizenry. The presidency, in contrast, was designed as a one-person office to ensure that it would be ready for action. Its major characteristics… were to be ‘decision, activity, secrecy, and dispatch.‘… [T]he legislative branch is ill equipped to handle many of the foreign policy tasks it has been taking upon itself lately.” He writes that while Congress may take upon itself powers to launch military actions or respond to an attack, it is by nature so slow and deliberative, and its members so focused on getting reelected, that it cannot adequately wield those powers: “[T]he real world effect often turns out… not to be a transfer of power from the president to Congress, but a denial of power to the government as a whole.” The only power Congress should have in involving itself in foreign policy, Cheney argues, is whether or not to fund presidential initiatives. “[T]he nation should not be paralyzed by Congress’s indecision,” he writes. [PBS Frontline, 6/20/2006; Savage, 2007, pp. 59-61] Cheney Selected as Secretary of Defense - Shortly after the essay is published, President George H.W. Bush names Cheney as his secretary of defense. Cheney was scheduled to give a talk based on the essay at AEI, but cancels it and goes to Washington to begin preparing for confirmation hearings in the Senate. Reporter Charlie Savage will note that the essay may have caused Cheney some difficulties in his confirmation hearings had it had a larger audience. [Savage, 2007, pp. 61] Former White House Counsel: Cheneys Proposals Unconstitutional, Unwise - In 2007, former Nixon White House counsel John Dean will write of the essay: “Cheney seems to be oblivious to the fact that the type of government he advocates is not, in fact, the government our Constitution provides.… His argument also assumes that a more agile, energetic, and fast-acting chief executive is the better system, but history does not support that contention. Presidential leadership has consistently shown itself less wise and less prudent than the slower but more deliberative nature of the system that we have. It was Congress that forced presidents out of no-win wars like Vietnam. The reason the nation’s Founders empowered Congress was because they wisely realized that a president—like heads of governments throughout history—was prone to fighting wars for his own glory, without seeming able to easily bring those wars to an end.” [Dean, 2007, pp. 88-89] Entity Tags: Joint House-Senate Iran-Contra Committee, John Dean, American Enterprise Institute, Michael Malbin, George Herbert Walker Bush, Richard (“Dick”) Cheney Timeline Tags: Iran-Contra Affair Category Tags: Expansion of Presidential Power July 27, 1989: New OLC Head Embraces Unitary Executive Theory, Orders General Counsels to ‘Forcefully’ Oppose Congressional ‘Encroachments’ Edit event The newly appointed general counsels of each executive branch receive a memo from William Barr, the new head of the Justice Department’s Office of Legal Counsel (OLC). The memo, entitled “Common Legislative Encroachments on Executive Branch Authority,” details the top 10 ways in which, in Barr’s view, Congress tries to interfere with executive branch powers. The list includes: bullet “4. Micromanagement of the Executive Branch”; bullet “5. Attempts to Gain Access to Sensitive Executive Branch Information”; bullet “9. Attempts to Restrict the President’s Foreign Affairs Powers.” The memo unequivocally endorses the “unitary executive theory” of the presidency (see April 30, 1986), despite that theory’s complete rejection by the Supreme Court (see June 1988). Barr also reiterates the belief that the Constitution requires the executive branch to “speak with one voice”—the president’s—and tells the general counsels to watch for any legislation that would protect executive branch officials from being fired at will by the president, one of the powers that Barr and other unitary executive proponents believe has been illegally taken by Congress. “Only by consistently and forcefully resisting such congressional incursions can executive branch prerogatives be preserved,” Barr writes. Reflecting on Barr’s arguments, law professor Neil Kinkopf, who will later serve in the OLC under President Clinton, will later write: “Never before had the Office of Legal Counsel… publicly articulated a policy of resisting Congress. The Barr memo did so with belligerence, staking out an expansive view of presidential power while asserting positions that contradicted recent Supreme Court precedent. Rather than fade away as ill-conceived and legally dubious, however, the memo’s ideas persisted and evolved within the Republican Party and conservative legal circles like the Federalist Society.” [Savage, 2007, pp. 57-59] Entity Tags: Federalist Society, Neil Kinkopf, US Department of Justice, William P. Barr, Office of Legal Counsel (DOJ), Republican Party Category Tags: Expansion of Presidential Power January 1990: Attorney General Says Presidential Veto Power Not Enough Edit event Attorney General Richard Thornburgh gives a speech to the conservative Federalist Society. Thornburgh complains that the veto power as mandated by the Constitution is no longer enough for a president to be effective in challenging Congress and defending executive branch authority. Lawmakers are adding new restrictions on presidential power into bills that have nothing to do with such issues, making it virtually impossible for the president to defend his prerogatives. “Today’s legislative process has rendered the presidential veto a less effective check on Congressional encroachments than was envisioned two centuries ago,” Thornburgh says. “It is often very difficult for the president to veto legislation that contains sometimes blatantly unconstitutional provisions. For example, Congress has become fond of inserting substantive provisions in appropriations bills. This is what they call making the provision veto-proof.” [Savage, 2007, pp. 234-235] Entity Tags: Federalist Society, Richard Thornburgh Category Tags: Expansion of Presidential Power Early 1991: Cheney Opposes Congress over V-22 Osprey Edit event Early diagram of V-22 Osprey.Early diagram of V-22 Osprey. [Source: US Navy]Defense Secretary Dick Cheney refuses to issue contracts for the trouble-plagued V-22 Osprey, a vertical takeoff and landing (VTOL) airplane designed to replace the Vietnam-era Sea Stallion helicopters. Cheney opposes the Osprey, but Congress has voted to appropriate funds for the program anyway. Cheney refuses to issue contracts, reviving the Nixon-era practice of “impounding” funds, refusing to spend money Congress has already appropriated. The practice of impoundment was made illegal by Congressional legislation in 1974; Cheney believes the anti-impoundment law to be illegal, and ignores it. Many look at Cheney’s opposition to the Osprey as an unusual example of fiscal restraint from Cheney, who is well known to favor most high-budget defense programs, but author and reporter Charlie Savage will cite the Osprey example as an instance of Cheney attempting to impose the executive branch’s will on the legislature. The Osprey will become operational in 2006. [Wired News, 7/2005; Savage, 2007, pp. 62] Entity Tags: Richard (“Dick”) Cheney, Charlie Savage Category Tags: Expansion of Presidential Power May 10, 1991: Bush Challenges Congressional Attempts to Limit Presidential Power Edit event In an unusually fiery speech, President George H. W. Bush tells an audience at Princeton University that he does not hold with Congressional attempts to limit presidential power. “The most common challenge to presidential powers comes from a predictable source,” he says, “the United States Congress.” Bush accuses lawmakers of trying to “micromanage” executive branch decisions, particularly in foreign policy (see July 27, 1989). He denounces Congress for attempting to, in his view, accumulate power at the expense of the executive branch by making excessive and unwarranted demands for information, and by “writing too-specific directions for carrying out a particular law.” Six of the 20 vetoes he has cast were to defend the presidency against such meddling, he asserts. And he criticizes Congress for passing bills containing indefensible earmarks and spending provisions; to curb such excesses, he demands a line-item veto. But he tempers his remarks: “The great joy and challenge of the office I occupy,” he concludes, “is that the president serves, not just as the unitary executive (see April 30, 1986), but hopefully as a unifying executive.” [Savage, 2007, pp. 59] Entity Tags: George Herbert Walker Bush Category Tags: Expansion of Presidential Power June 1991-March 1992: Cheney Attempts to Place JAG Corps under Political Control Edit event JAG branch insignia.JAG branch insignia. [Source: About ()]Defense Secretary Dick Cheney attempts to have the Judge Advocate General corps of military lawyers placed under the control of the general counsels of the various military branches; the general counsels are political appointees and more amenable to compliance with senior White House and Pentagon officials. Cheney’s decision is initially sparked by a conflict between the US Army’s top JAG, Major General John Fugh, and Army general counsel William “Jim” Haynes. Fugh has compiled a long, outstanding record of legal service in the Army. Haynes, 20 years Fugh’s junior and a civilian, is a former JAG officer (where he worked under Fugh) and a close friend of Cheney’s aide, David Addington. Haynes became something of a protege to Addington, and his career benefited as a result. When Haynes became the Army’s general counsel largely through Addington’s influence, Fugh quickly became irritated with his former subordinate’s attempts to involve himself in issues which Fugh felt should be out of Haynes’s jurisdiction. Haynes eventually goes to Addington for help in his bureaucratic conflicts with Fugh, and Addington takes the issue to Cheney. Cheney responds by asking Congress to place general counsels such as Haynes in direct supervisory positions over the JAG corps. Congress rejects Cheney’s request, but Addington circulates a memo declaring that the general counsels are heretofore to be considered the branch’s “single chief legal officer.” Cheney later rescinds the order under pressure from Congress. After the entire debacle, Haynes will accuse Fugh of disloyalty. Fugh will later recall: “I said, ‘Listen, Jim, my loyalty is owed to the Constitution of the United States and never to an individual and sure as hell never to a political party. You remember that.’ You see, to them, loyalty is to whoever is your political boss. That’s wrong.” [Savage, 2007, pp. 283-286] Entity Tags: Reagan administration, David S. Addington, John Fugh, Judge Advocate General Corps, William J. Haynes, Richard (“Dick”) Cheney, US Department of Defense Category Tags: Expansion of Presidential Power January 1, 1992: Conservative Author Writes Treatise Promoting ‘Unitary Executive’ Theory of Presidency Edit event Author Terry Eastland, the editor of Forbes Media Critic and a fellow with the Ethics and Public Policy Center, publishes Energy in the Executive: The Case for the Strong Presidency. The book makes an impassioned case for the “unitary executive” theory of the presidency (see April 30, 1986). In essence, Eastland’s argument is that a strong presidency, combined with a much diluted Congress and Supreme Court, is the best way for conservatives to achieve their aims. While traditional conservatives tend to reject this theory as unacceptably authoritarian, many others on the right—neoconservatives, social conservatives, the religious right, and other groups—have embraced the concept. Author and former Nixon White House counsel John Dean will call Eastland’s arguments “weak… deeply flawed as history and constitutional law, and closer to cheerleading for presidential hubris, excessive secrecy, and monarchical-like authority than a solid justification for a strong presidency.” [Dean, 2007, pp. 100-106] Entity Tags: John Dean, Terry Eastland Category Tags: Expansion of Presidential Power March 1992: Cheney’s Deputy Orders Military Attorneys to Submit to White House Control Edit event Deputy Defense Secretary Donald J. Atwood issues an administrative order placing all military attorneys under the control of White House civilian officials. The controversy started during the Gulf War, when the civilian general counsel of the Army, William J. Haynes, clashed with the Army’s top military lawyer over whose office should control legal issues arising from the war (see June 1991-March 1992). Haynes is a protege of David Addington, the personal aide to Defense Secretary Dick Cheney, believes in concentrating power in the executive branch, and pressed for the change. Cheney attempted to have Congress implement the change, but the legislative branch refused; instead, Cheney has Atwood issue the order putting all military attorneys under White House control. [Savage, 2007, pp. 62] Entity Tags: David S. Addington, William J. Haynes, Richard (“Dick”) Cheney, Donald J. Atwood Category Tags: Expansion of Presidential Power, Other Legal Changes July 1, 1992: Cheney Aide Grilled on Evasion of Congress Edit event David Addington, a personal aide to Defense Secretary Dick Cheney, is forced to take part in Senate confirmation hearings for his appointment as chief counsel for the Defense Department. Addington, a Cheney protege and a fierce advocate for the ever-widening power of the executive branch, has gained a reputation for effective, if arrogant, conflicts with the Pentagon’s uniformed leadership and for tightly controlling what information enters and leaves Cheney’s office. Colonel Lawrence Wilkerson, an aide to Joint Chiefs chairman General Colin Powell, will later characterize Addington as an intense bureaucratic infighter bent on concentrating power in Cheney’s office. “Addington was a nut,” Wilkerson will recall. “That was how everybody summed it up. A brilliant nut perhaps, but a nut nevertheless.” The Senate hearing becomes a platform for Democratic senators to attack Cheney’s anti-Congressional policies (see Early 1991 and March 1992). In his turn, Addington calmly denies that he or Cheney have ever exhibited any intention to defy Congress on any issue. “How many ways are there around evading the will of Congress?” storms Senator Carl Levin (D-MI). “How many different legal theories do you have?” Addington answers, “I do not have any, Senator.” Addington is only confirmed after promising that the Pentagon will restore the independence of military lawyers (see March 1992) and begin funding the V-22 Osprey (see Early 1991). [Savage, 2007, pp. 63] Entity Tags: David S. Addington, Carl Levin, Lawrence Wilkerson, Colin Powell, US Department of Defense, Richard (“Dick”) Cheney
Posted on: Sun, 07 Dec 2014 04:26:31 +0000