by Ted S. McGregor & r & & r & & lt;span class= & quot;dropcap & quot; & S & lt;/span & o what has Election 2006 wrought? First, I'll bet that the new Congress will actually show up for work -- the outgoing "Worst Congress in U.S. History" showed up for work fewer than 100 days last year. We can expect also to see actual deliberation for the first time in six years or more. No doubt Iraq policies will come under intense scrutiny, as will the cozy relationship between the Bush people and corporate America. I refer to the exercise of Congressional oversight responsibilities, which have been ignored by the outgoing Republican Congress.
It is the abdication of their responsibility for this oversight that is the subject of a recent Foreign Affairs article, "When Congress Checks Out," written by Norman Ornstein of the American Enterprise Institute and Thomas E. Mann of the Brookings Institution. They argue that this failure has been the Republican's most serious sin, amongst many to be sure. A typical example of dereliction of duty: In the mid-'90s, the Congress took 140 hours of testimony on "whether President Clinton had used his Christmas mailing list to find potential campaign donors." In stark contrast, in 2004-05 it took only12 hours of testimony on Abu Ghraib.
& lt;span class= & quot;dropcap & quot; & T & lt;/span & he incoming Democratic House will also mean that the president's assertion of the so-called "unitary executive theory" will be debated. The president has relied on this argument to justify all his unilateral actions from waging "a war of choice," to illegal wire taps, to torture (I forgot, we don't do that -- except when we need to), to signing statements that often amount to refusal to execute laws passed by the Congress. For six years now, we have heard Dick Cheney tell us that this administration intends to restore a -- to use Cheney's favorite word -- "robust" executive. Cheney then asserts that the framers intended just this kind of executive, a "unitary executive." His authority for this claim is John Yoo, former Assistant Attorney General in the Justice Department's Office of Legal Counsel.
Yoo lays out the argument in a September 21, 2001 memorandum to the president, which, boiled down, argues that in time of war (even a war of choice) the president is effectively above the law, subject only to the Congress' power of the purse. Yoo quotes Alexander Hamilton who wrote in Federalist No. 23 urging a government "cloathed with all the powers requisite to [the] complete execution of its trust" [to defend to county].
Now, setting aside that Hamilton was referring to the need for a strong "federal" government, and that nowhere in Federalist No. 23 can you find the word "executive" nor "president" -- Yoo has nothing to say about the framers' broadly understood concerns that America not create just another form of monarchy. Jefferson, who was in France during the Constitutional Convention a couple of years later, put these fears into context:
While in Europe, I often amused myself with contemplating the characters of the reigning sovereigns. Louis XVI was a fool; the King of Spain was a fool, and of Naples the same. They passed their lives in hunting. The Queen of Portugal was an idiot by nature. And so was the King of Denmark. The King of Prussia was a mere hog in body as well as in mind. Gustavus of Sweden and Joseph of Austria were really crazy.
Indeed, the assumption made by Yoo and supporters of his unitary executive theory -- that presidents have some special claim to knowledge and wisdom -- has been challenged by astute observers as far back as Alexis de Tocqueville and Lord James Bryce. Both noted that the American system, if anything, tends to bring into office, if not fools and crazy people, certainly mediocre men -- like George W. Bush.
& lt;span class= & quot;dropcap & quot; & C & lt;/span & ongressional oversight, argue Ornstein and Mann, if focused on policy and execution and not politically motivated witch hunts (e.g. Whitewater, Monica, Travelgate), has a record of making government work more effectively and efficiently, of overcoming fools and their foolishness.
To support his case, Yoo, in a recent New York Times op-ed column, aligns himself with the late presidential scholar and "liberal icon," Richard Neustadt, who argued that the presidency is inherently weak, "while," writes Yoo, "mythic things are expected of and attributed to it -- like maintaining national security and economic growth." To use Neustadt to support an argument justifying unlimited presidential power, even in time of crisis, is to turn Neustadt on his head. Neustadt argued that presidential power doesn't derive from "my way or the highway," rather it takes the form of "the power to persuade." The president who manages to persuade others to do what he needs done without issuing orders, says Neustadt, is the powerful president. Yes, the office is inherently weak, but it has resources. Presidents have bargaining capital that can be used to persuade. To resort to what Neustadt terms the "self executing order" is a sign of presidential weakness, not strength.
Thus the irony of it all: If Neustadt is right, Bush, who dismisses the need for persuasion, preferring to assert the "unitary executive theory," which relies on "self executing orders," will leave not a stronger presidency but a presidency that, because of his arrogance, will likely be savaged by the next generation of emboldened neo-populist, anti-federalists who will work to weaken the presidency -- given our run of bad luck -- at exactly the wrong time.
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