David Adler: When presidents ignore Constitutional boundaries

October 31, 2013 

The controversies surrounding the Obama administration, unleashed by a flawed rollout of President Obama’s signature health care program and revelations of U.S. spying on heads of state, have renewed concerns about the scope of presidential power and responsibility.

The waves of frustration and concern about presidential power — aggrandizement, usurpation, and plausible deniability — that have pounded the shorelines of our constitutional system for the past half-century, marked the rise of the Imperial Presidency under Johnson and Nixon and the exaltation of executive power under George W. Bush. They have surmounted the retaining walls of the separation of powers and checks and balances under President Obama and left observers to wonder about Harry Truman’s assertion of presidential responsibility, captured in the memories of students everywhere: “The buck stops here.”

The problem with many recent presidents is that they pay little heed to constitutional boundaries. Truman, himself, violated the Constitution in 1950 when he asserted unilateral executive power to take the U.S. to war in Korea and, again, in 1952 when he seized the nation’s steel industry, an assertion of inherent presidential power that the Supreme Court declared unconstitutional.

His successors, Democrats and Republicans alike, have frequently ignored the metes and bounds of the Constitution, particularly in foreign affairs, but also in domestic affairs. Richard Nixon’s claim of impoundment authority and executive privilege were held unconstitutional by the Supreme Court. Bill Clinton’s assertion of immunity in the Paula Jones case was rejected by the High Court, as were some of George W. Bush’s broad claims to inherent power in the conduct of the “War on Terror.”

It is in the context of the War on Terror that we find new, and occasionally unprecedented, assertions of executive power, by both Bush and Obama. The assertions of soaring presidential power lay behind actions that betrayed the Constitution as seen, for example, in the claim of unilateral executive authority to launch preventive war, order acts of extraordinary rendition, indefinite detention and warrantless wiretapping, and to terminate the Geneva Convention, authorize torture and establish military tribunals without legislative authorization.

Unconstitutional presidential actions have plagued our system and heightened concerns about executive accountability. The problem of presidential accountability has been exacerbated by the practice of plausible deniability, a scurrilous tactic employed by subordinates to shield a president from responsibility — and liability — in the event of the exposure of an illegal or unconstitutional action.

Disclosure of the fact that the U.S. has been monitoring the phone calls of German Chancellor Angela Merkel since 2002 has raised the question of whether Bush and, now, most conspicuously Obama, knew that the NSA was tapping the phone of one of our closest allies. It is difficult to believe Bush and Obama were not informed, but perhaps aides to both presidents resorted to the technique of plausible deniability. We may never know the truth unless an aide writes candidly about the disclosure in a memoir.

Examination of presidential power and executive accountability are critical to the health and vitality of our republic. On Wednesday, one of the nation’s most prolific constitutional scholars, Louis Fisher, will deliver the Andrus Lecture, sponsored by Boise State’s Andrus Center for Public Policy, in a talk titled “Presidential War Making and the Constitution.” Fisher, whom scholars have characterized as a “national treasure,” is a leading authority on presidential power. His talk, held in the Jordan Ballroom of the BSU Student Union Building, begins at 7 p.m., followed by a Q&A session and a book signing. The program is free.

David Adler is the Cecil D. Andrus professor of public affairs at Boise State University, where he serves as director of the Andrus Center for Public Policy.

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