Can democracy survive George W. Bush?

Over the last five years or so, the expansion of presidential authority under the banner of a “war presidency” has amplified America's unilateralist behaviour that - in the eyes of many around the globe - signals the concurrent irrelevance of the will of the people and the demise of democracy. But how pessimistic should we really be?

Checks and balances

Even if the preamble to the Constitution indicates it is “We, the People” who are ultimately in charge of ourselves; and even if, as de Tocqueville maintains in his Democracy in America (1835), it is the people who occupy the seats of power, it is not without checks on itself.

The Constitution itself is the first limitation the American people submit to. For that wonderful document channels the popular will into a system of separated powers, each able to reign in the other.

This separation of power is built on the classic “trias politica” with congress occupying the legislative branch, the president and his administration occupying the executive branch, and the Supreme Court embodying the judicial branch.

Furthermore, each branch can actively intervene in the affairs of the other. Congress can curb the president's actions by refusing to accept a law, by starting impeachment procedures, not accepting nominations or not ratifying agreements. Congress also has the power to check the Supreme Court by changing the jurisdiction of existing courts, changing the number of (lower) federal courts and removing judges from office. Also, when the president nominates candidates for the Supreme Court, Congress needs to give its approval.

The president in turn can issue a veto against a congressional decision and can call the congress to meet in special sessions at will. He also appoints the federal judges.

Lastly, the Supreme Court has the power of judicial review, meaning they can nullify laws and actions taken by congress or the president if deemed unconstitutional.

It is this complementary system of elected representatives in separated bodies of power that are responsable for one another's actions which makes up the core of the American democratic system. The interrelations between the composite parts of such a system make for an almost organic whole that will naturally strive for balance. In theory. But has it always in practice?

De Tocqueville considered the presidency and the executive branch to be a naturally weak institution. America has no need for a strong central government and adminstration he says because: "The Americans have no neighbours and consequently they have no great wars, or financial crises, or inroads, or conquest to dread; they require neither great taxes, nor large armies, nor great generals, and they have nothing to fear from a scourge which is more formidable to republics than all these evils combined: namely, military glory."

It is ironic he should highlight the absence of physical threat, for it is precisely through the elimination of physical threat that the executive branch has managed to assert itself, expand its powers and override congressional authority.

In other words, it is in the military dimension that the debate over executive powers historically presents itself. Professors Calabresi and Yoo, in their extensive study of the unitary executive in American presidential history, quote Chief Justice Vinson as saying:

A review of executive action demonstrates that our Presidents have on many occasions exhibited the leadership contemplated by the Framers when they made the President Commander in Chief, and imposed upon him the trust to “take Care that the Laws be faithfully executed”. With or without explicit statutory authorization, Presidents have at such times dealt with national emergencies by acting promptly and resolutely to enforce legislative programs, at least to save those programs until Congress could act. Congress and the courts have responded to such executive initiative with consistent approval ...

Unitary executive

Essentially, the question of the unitary executive regards the scope of the president's power to execute laws and remove officials. The debate is as old as the Constitution itself, with proponents saying a strong presidential authority was written into the text and adversaries denying that claim.

In its modern form it was rekindled by the Reagan administration's consistent questioning of the constitutionality of independent agencies and counsels appointed under the Ethics in Government Act of 1978. Since Reagan, the debate has continued through the presidencies of Bush sr., and Clinton; and with George W.Bush it has flared up intensely.

According to Charlie in the Boston Globe of April 30, 2006, "President Bush has quietly claimed the authority to disobey more than 750 laws enacted since he took office, asserting that he has the power to set aside any statute passed by Congress when it conflicts with his interpretation of the Constitution.

Among the laws Bush said he can ignore are military rules and regulations, affirmative-action provisions, requirements that Congress be told about immigration services problems, "whistle-blower" protections for nuclear regulatory officials, and safeguards against political interference in federally funded research: many of which he says infringe on power he believes the Constitution assigns to him alone as the head of the executive branch or the commander in chief of the military.

Heavily debated instances of the Bush administration's claim to power relate to the ongoing “war on terror”, and include official policies regarding “enemy combatants”, Guantànamo prison, the flaunting of international law, extraordinary renditions, and the use of torture.

Domestically, the president's role in the Terri Schiavo case, the execution of his presidential prerogative in the appointment of John Bolton to the UN, and his continued efforts to appoint conservative judges to the Supreme Court have been no less controversial. It is clear that Bush's presidency must be filed, for better or worse, under “maximalist”.

But how bad is that?

The 19th century is - presidents Monroe, Jackson and Lincoln aside perhaps - generally viewed as a period of minimalistic executives. In part this was due to the fact that the understanding and the application of presidential power as established in the Constitution had to “mature” over time. With that came the fact that states were more important still than the overall federal level. Furthermore, national political party structures were only gradually coming to life, and the eventual party system took a while to settle down into its present mold.

So broadly speaking, the 19th century comprised the “formative” years of the presidential office, with the White House subsisting on relatively meager power and influence.

In the course of the 20th century things began to change, and from Franklin D. Roosevelt's presidency onwards it is possible to speak of more activist, and thus maximalist interpretations of the executive branch.

They bore full fruit under President Nixon, who in the words of Arthur Schlesinger jr "was carrying the imperial presidency toward its ultimate form ... empowered by his mandate to make war or to make peace, to spend or to impound, to give out information or to hold it back, superseding congressional legislation by executive order, all in the name of a majority whose choice must prevail till it made another choice four years later".

If this sounds uncannily like the predicament America is in under George W. Bush, it must mean we have a precedent. So see what happens after Nixon: Presidents Ford and Carter take a rather more modest view of their presidency, and even the internationally very assertive presidents Reagan, Bush sr. and Clinton all remain bogged down domestically by a Congress that is occupied by their political opponents throughout most of their respective terms.

Ironies

A number of observations can be made on the basis of this short account. The first is that not all activist presidents are necessarily bad for the country. Roosevelt's legacy testifies to the benefit of a strong White House in times of national crisis.

Second, at all times have strong presidencies eventually been followed by weaker ones, indicating that maximalist implementations of executive powers do not stay irreversible forever and can be undone.

Three, maximalism is not the privilege of one party. Strong presidents have arisen on both sides of the political divide throughout history. This is significant, because it points towards the fundamental nature of the unitary executive principle. Across the board, it seems accepted that under the Constitution American presidents commit to executing their full powers (above all in times of emergency!).

And finally, it is worth reiterating that the unitary executive does not operate in a vacuum, for it is balanced by the branches of government that are the legislative and the judicial. One even could argue that a strong executive branch is conducive to a strong Congress, and a strong system of judicial review especially. And as has been the case before, so too President Bush now faces opposition from the other branches of power.

Most recently, the Republicans lost both the house and the senate to the Democrats in the mid-term elections of 2006. Such a "thumping" as Bush himself called the defeat, is important, because congress influences both domestic law-making and the President's foreign policy.

So, with both chambers in the hands of the Democratic party, Bush is likely to see a few levers pulled over his unending “war on terror” and its subsequent unilateralism.

The fact that John Bolton did not win a reappointment to his seat as America's ambassador to the United Nations is indicative in that respect. Equally telling, though perhaps linked more to the politics of symbolism than to the immediate poll-results as such, is the resignation of Secretary Donald Rumsfeld from the Pentagon.

Even before the mid-term elections, in September, The Economist noted that "The Senate says no to Mr Bush", as Bush's proposed bill to submit suspected terrorists to “alternative interrogation techniques” (aka torture) and military hearings only, was rebuffed by a group of, notably, Republican senators lead by John McCain.

Also, in June the United States Supreme Court ruled that Bush's special military tribunals for suspected foreign terrorists are illegal under the Geneva Conventions ànd military law. (Hamdan v Rumsfeld). This rule is relevant not just to the president's leeway in international affairs, but possibly also on the domestic level, as the Supreme Court's decision threatens implosion for Bush's legal arguments with regard to domestic warrantless wiretapping. In any case, it is clear that the court is reigning in the commander-in-chief, reaffirming its ultimate authority over constitutional matters.

Democracy?

As Jeffrey Rosen remarks in his discussion of the Hamdan case in his article Bush's Leviathan State:

In this sense, Bush’s extremism may have ultimately weakened executive power in the same way Clinton did when the Supreme Court rejected his sweeping assertions of executive privilege in the Monica Lewinsky investigation. By taking implausibly aggressive positions before the Supreme Court, both presidents precipitated a judicial backlash that left their own authority diminished. And that may be the ultimate irony that both sides failed to anticipate.

It is this practice of constant realignment between all three branches of government that counterbalances abuse. Which indicates that the system of checks and balances as grounded in the Constitution is still up and running. Stepping back somewhat, it becomes clear that “the People” govern to the extent that the system they devised remains operational. Only if the system fails, democracy fails.

If the political history of the United States has shown the role of the people diminished at times, or the role of the president inflated, that same history also reveals quick inversions and landslide changes that topple existing balances of power.

So too today. The system still stands. President Bush's legacy is far from inconsequential, but far from detrimental. His tenure as a “war president” may even help invigorate democracy, for opposite the threat of silence stands the challenge of speaking more convincingly, more clearly.