Presidential Powers and Prerogatives

Hilary Bok:

I am not, in general, a big fan of saying: Republicans: you lost. Get over it. But in this case, I’m going to make an exception. The Republicans do not seem to be willing to allow the President to do things that are plainly his prerogative: appointing the reasonable, qualified, law-abiding people of his choice, deciding which documents should be declassified, and so forth. Any moment now they’ll threaten not to pass the budget unless he sets his air conditioner at their preferred temperature.

Andrew Sullivan links approvingly and I agree so far as it goes.   But it’s not so cut and dried.

Presidential Appointments

Whether I voted for a given president or not, I’ve consistently believed that the Senate’s advise and consent powers on appointment should be a backstop against truly outrageous choices.   That goes doubly true for executive appointments.

At the same time, however, there seems to be quite a bit of wiggle room in “reasonable” and “qualified.”  (Indeed, even if “law-abiding,” given the criminalization of politics over the last twenty years.)

Was, for example, John Bolton qualified to serve as UN Ambassador?  Seemingly so:  He’d held a number of progressively responsible positions in government over a two decade span, including General Counsel at USAID, Assistant AG, and Assistant Secretary of State.  Was he “reasonable”?  His critics said No.  Mostly, the criticisms were over temperament and style, although these things always come down to policy differences.

The bottom line on these things, though, is that what comes around, goes around.  The spiking of Ronald Reagan’s appointment of Robert Bork to the Supreme Court — back in 1987 — seems to be the start of the current all-holds-barred approach to these things.   The Republicans don’t really have much incentive to be the first one off the merry-go-round, since they’ve got no assurance of taking back the White House any time soon, let alone any reason to think the Democrats would reciprocate.

Classification

President Obama almost certainly has the right to decide to de-classify the so-called “torture memos” from the previous administration.  Indeed, he may be obligated to do so pursuant to a court order.

As a general rule, though, I’m not at all sure that the president should be the sole decider.   Indeed, many on the Left spent much of the previous eight years demanding that Congress intervene to stop what some regarded as the Bush administration’s abuse of this particular power.

If we’re going to cede Congress oversight responsibility in this area — and I don’t see how a Republic could operate otherwise — then they, too, will naturally abuse/use their power to advance their own political interests and pet agendas.   The beauty of checks and balances is to have faction counter faction and everyone jealously guarding their own prerogatives.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Dave Schuler says:

    I am shocked, shocked, to find politics going on in the Congress.

  2. As a general rule, though, I’m not at all sure that the president should be the sole decider. Indeed, many on the Left spent much of the previous eight years demanding that Congress intervene to stop what some regarded as the Bush administration’s abuse of this particular power.

    Well, okay… but… not all uses of presidential power are the same. Authorizing torture and reiterating a ban on it are not the same, even though there is a surface parallelism to the argument.

    As a general rule, I think we could identify certain norms that deserve, essentially, preferential treatment. Disclosure ought to usually trump secrecy. Following precedent ought to trump reversing it. Restraint in the exercise of presidential power ought to trump dramatic expansion of claimed prerogatives.

    These normative biases should not settle debates, of course. But they imply that the bar is higher for one side than the other.

    The thing about Bolton compared to some holdups today is that people on the left were genuinely concerned about Bolton’s temperament. Now, I agree that the president ought to have wide latitude on these sorts of choices — elections do matter. But anyway, there was a substantive beef with Bolton and how he might conduct himself in office. Whereas, it does seem, and I could be wrong, but it does seem like a lot of what the GOP is doing now is just tit-for-tat. You can say the Democratic holds and such were inappropriate, but I think the motives, on the whole were pure (although perhaps misguided), whereas I think the motives are much less pure at the moment.

    Flame away!

  3. Houston says:

    Both the quote from Hilary Bok and Sully’s approval are absurd. I don’t know who she is, but Ms. Bok apparently has a very short memory. Just go back one administration and compare.

    You might expect such partisan posturing from an administrative hack (like Gibbs), but bloggers should be expected to know better. If they ever want to be read with a straight face, that is.

  4. Bithead says:

    The thing about Bolton compared to some holdups today is that people on the left were genuinely concerned about Bolton’s temperament.

    Somehow, were Bolton a flaming liberal appointed by Clinton or Carter II, the left would find a way to forgive him the fire he brought tothe job. James is correct, here… it comes down to policy differences.

  5. raoul says:

    Bork advocates that each Supreme Court decision be subject to Congressional approval. Enough said.

  6. Bithead says:

    raoul:
    CITE!

  7. Somehow, were Bolton a flaming liberal appointed by Clinton or Carter II, the left would find a way to forgive him the fire he brought tothe job.

    Surprise, surprise… you missed my point.

    Yes, the opposition to Bolton was about policy… not just political retribution. That was precisely my concern, namely that there seems to be some desire among conservatives now to hold up nominations as a form of payback. Whereas Bolton and Bork were not disputed as a matter of tit-for-tat, but rather because Democrats really thought they would do bad things if appointed.

    Now, again, I think a strong case can be made that Bolton was clearly qualified by any normal assessment and should have been confirmed. But the fact that he wasn’t was not just because Dems wanted to stick a finger in Bush’s eye.

    Cue irrelevant diversionary response!

  8. Bithead says:

    Surprise, surprise… you missed my point.

    Chuckle.. no, I didn’t miss it. I just cut one of the shorter legs off of your argument, as yuo quickly admit:

    Yes, the opposition to Bolton was about policy… not just political retribution. That was precisely my concern, namely that there seems to be some desire among conservatives now to hold up nominations as a form of payback.

    Rather hard to demonstrate, don’t you think? I mean, even assuming such a desire exists, to the largest of degrees the right has been denied such, by virtue of the nominations failing on their own, as much as anything. That said;

    Whereas Bolton and Bork were not disputed as a matter of tit-for-tat, but rather because Democrats really thought they would do bad things if appointed.

    What you’re very carefully dancing around is that resistance to Bolton was still politically motivated. Granted that it wasn’t particularly about Bush, or political retribution…(Much as so many of the Kos kids liked to suggest it was) but rather that in Bolton we had an effective firebrand speaking loudly for a might right-wing approach to foriegn policy… and an effective one, at that. It’s that effectiveness that troubled the left so about him. Instead of admitting this, they chose to attack ‘his termperment’ instead.

    Now, what interests me is you seem so willing to ignore that same motivation for those on the right, who object to whatever nomination… that motivation being that by virtue of their leftist tendencies they’ll do this country great damage. Your ability to attribute this to those objecting to a given nomination seems to me selective on the basis of their politics.

  9. raoul says:

    Bithead- from WIKI: “Bork also advocates a modification to the Constitution which would allow Congressional super-majorities to override Supreme Court decisions, similar to the Canadian notwithstanding clause.”

  10. Bithead says:

    A direct quote would be nice.

  11. sam says:

    @Houston

    You might expect such partisan posturing from an administrative hack (like Gibbs), but bloggers should be expected to know better. If they ever want to be read with a straight face, that is.

    Damned hard to read that last with a straight face. Dude…c’mon…partisanship (and its attendant distortions) is to blogging as apple is to pie. For example, visit this blog (:)). Examples, left and right can be multiplied.