Friday, June 11, 2010

The Presidency is Weak. Really. (3)

Continuing on the topic of presidential power.  

E.D. Kain makes the point Ezra Klein made about foreign policy, and especially:
Obama has, unfortunately, retained far too much of the Bush legacy in his foreign policy agenda. I don’t mean the two wars. What can you really do about the wars? You break it, you buy it. I’m more interested in authorizing assassinations of U.S. citizens, detention of terror suspects without charges or trial, and so forth. On these matters, Greenwald is absolutely correct – the president is anything but weak. Wouldn’t it be nice if the presidency was as weak overseas as it was here at home?
I'm really not sure that those examples mean what Kain thinks they mean.  I'd put indefinite detention with the two wars.  Does Obama really want indefinite detention?  I think he wants it in the way that he wants to wind down the war in Iraq over three years: it's the best of the bad options he faces, given what he inherited and the constraints placed on his choices by  the courts, the bureaucracy, and Congress.  To call it "his choice" in that context would be fairly misleading. 

I'm not sure what he includes in "and so forth"...what about drone assassinations in Pakistan?  Is that a case of the president having freedom of action?  I don't think so, really.  First, he's constrained by campaign commitments and the general political situation; he appears to believe that aggressive moves in Pakistan and Afghanistan give him political cover to get out of Iraq, and perhaps to extricate the US from Afghanistan at some point in the nearer future.  However, there's probably both military and political resistance, as well as opposition from the Afghan government (such as it is) to adding all that many troops there, and severe opposition from Pakistan (and, probably, the world community) against deploying troops into Pakistan -- even though that might be the most efficient way to reach Obama's goals in the region.  Given all that, drone attacks in Pakistan probably seems, to Obama, as the best of several bad choices.  He's not getting what he wants; he's working within severe limitations from many sides.  And of course it may be, when we learn more about it years from now, that Obama was being rolled by some faction within the Pentagon, or the intelligence community, or someone else.  It's a big mistake to see something happen and assume it was what the president actually "wanted."

Last point.  It really is important in thinking about these things to distinguish between what the government can do and what the president can do.  That's true even when the president makes the final "choice" in executing that government power, because what appears on the surface to be a presidential choice is often something else entirely.  So, monitoring phone calls without a warrant certainly increases the reach of the government, but whether or not it increases the president's power is another question.  It might, instead, increase the influence of the FBI, or an intelligence agency, or some other part of the bureaucracy.  Or both: I'm certainly not saying that it can't increase the president's influence, just that one has to be careful about assuming exactly who is doing the influencing.


  1. Thanks for three very reasoned posts on a subject few of us understand very well.


  2. I think this carries the Neustadt thesis too far. Or, perhaps, it misapprehends the degree to which Neustadt was assuming presidents who aren't radical ideologues, and therefore constructed a thesis that can't really explain the George W. Bush administration. No one was in a better position than the post-9/11 Bush to resist the neocons, side with Colin Powell in the internal debates (as his father had done), and decide not to run the huge risk of overthrowing the Iraqi regime. Likewise, no one was in a better position than Obama, on or around 1/21/09, to flat-out reverse the whole package of executive-fiat policies that E.D. Kain is referring to (not drone assassinations, I would wager, but ideas like "Habeus corpus and the Geneva Conventions mean whatever the president says they mean"). I think everyone, including his opponents, expected this of Obama; he could even claim it was part of his mandate, and seemed almost to do so in his inaugural remarks about not having to sacrifice our values in the name of security. Of course he was under internal pressure to keep the policies, but he would have had wide support for saying "We're not doing it; it's not what America is all about." He made a decision that could have been made differently.

    Most presidents, most of the time, may be "clerks" in the Neustadt sense. But a few presidents, in a few key issue areas, do break the mold and take the U.S. heading down roads that the president's predecessors (and in some cases, though not that last one, his defeated opponent) wouldn't have, political constraints and institutional pressures notwithstanding. Otherwise there's really no point to presidential elections.

  3. Further to my comment above: I wonder if Neustadt's theory isn't kind of like Newtonian physics -- brilliant at explaining everyday events, but leaving us needing some larger, Einsteinian theory to deal with extreme cases (which here would mean key transitional and other defining moments where a president's decisions are most telling). I'm guessing such a larger theory would need to include, though not be identical to, something like Stephen Skowronek's theory of presidential "regimes," as outlined here:

  4. It seems to me you and Klein, Kain, and Greenwald are not talking about the same thing here. What most people mean by "presidential power" is the power of the president/executive with respect to the other two branches of government. You describe several situations in which the president is constrained from pursuing his most preferred policy because of political, diplomatic, or bureaucratic constraints. As Bush showed repeatedly, if a president, acting within his political, diplomatic, or bureaucratic constraints, decides to pursue a policy under his "war powers," there is very little Congress can do about it except to raise the issue and attempt to increase the political costs of the policy. This is not to say the president can pursue any policy he wants without considering objective reality, just that the power of Congress and the courts to prevent him from doing so is limited.

  5. The real question here is: Weak compared to what, exactly? Neustadt's argument, I think, is that the presidency is weak compared to the general expectations of the public/policy elites/political scientists (not really sure which). You can certainly argue that case, but you should be really specific about exactly what those expectations are. Is the presidency weaker than the expectations of Glenn Greenwald, as expressed in the quote that started this conversation? I would say yes, but caveated by the understanding that a lot of his writing is deliberately exaggerated to make a point.

    On the other hand, the flat statement that the presidency is weak is just nonsense without some sort of qualification. What other institution is more powerful? Congress? The federal judiciary? Hardly. Executives in other countries? I don't thinks so. Who on earth has more influence and power than the President of the United States?

    To argue that the president's almost completely unchecked ability to send his robot warriors anywhere in the world to kill anyone he wants is a sign of weakness seems truly bizarre (and that's what you are arguing when you say that continuing the drone assassinations demonstrates a constraint on presidential power).

    Can you describe any scenario in the real world that would allow you to define a strong presidency? My impression from your argument so far is that by your definition all human leaders throughout history have been weak. Roman emperors operated under significant constraints. Even Alexander the Great couldn't impose his will completely; eventually he exhausted his soldiers. What institution of national leadership meets your definition? I mean this in all seriousness because I want to understand whether or not I'm misinterpreting your position. The ancient Persian emperor (Cyrus, Darius), the Spanish monarchy (Philip II), the Caliphate, the Mongol leadership, or something I'm not thinking of?

  6. A lot of interesting points...

    A couple responses. On the "compared to what" question...I'd say that the president as one person is certainly the most influential single person in the US government...but not necessarily more influential than Congress as a whole, the courts as a whole, the bureaucracy as a whole.

    The second thing is that to say that the presidency is inherently weak isn't to say that all presidents are equally weak; Neustadt's goal in writing was to teach presidents how to be more powerful. Generally, I agree with him.

    Third thing...I don't think the president does have an "almost completely unchecked ability to send his robot warriors anywhere in the world to kill anyone he wants," certainly not as part of the inherent powers of the presidency. In this case, it took Congressional authorization, cooperation from the bureaucracy, no obstacle from the courts, and close to a national consensus that killing Islamists is a Good Thing. And again, we don't know that drone killings was Obama's first choice. It could easily be the military rolling an inexperienced president, rather than an all-powerful president giving orders that are followed.

    Fourth...Gitmo/torture. Obviously, what's happened isn't what Obama seems to have wanted. Why? Could be that he was just betraying his supporters. Could be that he did his best, and just lost the fight within the government. Could be that he lost the fight within the government because he fought badly. Could be that he lost the fight within the government because he decided to focus his resources on other things, and so he didn't bring his full array of weaponry to bear on the fight. Could be that he's actually winning, but just a lot slower than he (and his supporters) expected. Could be he's winning on some things, losing on others. And, finally, it could be some combination of one or more of these. My main point is that it's foolish to assume that it must be the first of those options (betrayal) because *as an assumption* it rests on the mistaken belief that presidents get to do whatever they want.

  7. I think one of the main things you are overlooking is the ability of the President to act in secret. None of the the constraints you list on the president's ability to carry out drone strikes is really a constraint. There is no congressional authorization for drone attacks in Pakistan, Yemen, or anywhere else except Afghanistan and Iraq. The federal courts have no ability to restrain the president in this regard. No one knows if the people who are being killed are Islamists (whatever that means). The killing bureaucracy (whether we are talking about the CIA or military) have never and will never turn down the president when he (or eventually she) wants to do something like this. There is no effective restraint on the ability of the U.S. president to take a whole range of covert actions. Bush pretty clearly demonstrated that even the limited restraints required by law (mostly just notification of Congress) can be ignored with complete impunity.

    What exactly can the Congress do that the President can't? Pass laws over the President's veto. If the law restrains the power of the presidency, the president will just issue a signing statement and completely ignore the law. Presidents of both parties have down so. I'm not arguing that the President is omnipotent, but the idea the Presidency is weaker than Congress strikes me as completely ludicrous. Congress has becoming weaker and weaker while the presidency has become more and more powerful.

    Let's take the case of Gitmo. Obama absolutely could have closed Gitmo by now. All that would be required is to do the moral and just act of releasing everyone in the prison there. That is completely with his power and he has chosen not to do that. You can argue that that is politically untenable (and maybe it is or maybe not), but it is clearly within his power. No one else has that power. The Congress can't do that, not even by legislation. The federal judiciary isn't capable of doing that and even if they did, Obama could just move them all to Bagram or a secret CIA prison. He has complete freedom of movement in this regard.

    My basic argument is that there is a significant area of policy over which the president really is, for all practical purposes, an autarch. Any action that can be kept secret under the rather broad definition of "national security" can be ordered by the president. Extrajudicial killings, imprisonment, violations of U. S. law, international treaties and the Constitution, economic sabotage, overthrowing other governments, trafficking in drugs, and a whole variety of other misdeeds have been confirmed by official government documents. No president has ever been held to account for those actions. You can't ignore that and that is real power.

  8. William,

    That's a pretty reasonable point. I have a response...don't know if I can sell it to you (and others), but I strongly believe it's correct. It's too much to put into a comment, though. So, I'll have to ask you to stand by, and look out for a new post on the topic...don't know if I'll get to it over the weekend, but if not then early in the week.

  9. Jonathan,

    I'm starting to wonder if what you're saying now is starting to conflict with what you wrote a few months ago about the passage of health-care reform:

    I strongly suspect that when the full history of the health care reform effort is written, it will turn out that the White House was highly involved, every step of the way. And, yes, it is the job of the Congress to legislate...but it's also the job of the president. As Richard Neustadt said, it isn't a government of separation of powers; it's a government of separated institutions sharing powers. The president absolutely has a role in legislating. What he can't do is dictate to the Congress. Again, I suppose at this point there's as much speculation as anything, but it sure looks to me as if Obama successfully found the "middle way" that Crook wanted. Of course, to understand that requires understanding that Congress is not something for the president to "guide and supervise." It's a co-equal branch, and it must be worked with, not supervised.


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