Outside the Beltway

Republican Candidates Love The Imperial Presidency

Not surprisingly, most of the Republican candidates for President aren't too keen on reducing the excessive growth in Executive Branch power.

Doug Mataconis · Friday, December 30, 2011 · 10 comments

If you’ve watched the many Republican debates this year, you’ve heard every single Republican candidate hit on pretty much the same themes about reducing the size and scope of the Federal Government. Some candidates, like Rick Perry, talk about reigning in the supposed excesses of Congress by making it a part-time legislature. Others, like Newt Gingrich, Rick Santorum, Ron Paul, and Michele Bachmann, talk openly about attacking the independence of the judiciary and the power of the Third Branch of the Federal Government.  What you never seem to hear them talk about is restraining the power of the branch of government they are running to be in charge of, the Executive Branch. One some level this isn’t surprising. After all, who wants to run for the Presidency on a platform of reducing its power? However, as the New York Times found when it looked into the issue, for the most part the same candidates who complain about Barack Obama’s use of Executive power are seemingly looking forward to exercising that same power themselves:

WASHINGTON — Even as they advocate for limited government, many of the Republican presidential candidates hold expansive views about the scope of the executive powers they would wield if elected — including the ability to authorize the targeted killing of United States citizens they deem threats and to launch military attacks without Congressional permission.

As Republicans prepare to select their party’s 2012 presidential nominee, Newt Gingrich, Jon M. Huntsman Jr., Ron Paul, Rick Perry and Mitt Romney have provided detailed answers about their views on executive power in response to questions on the topic posed by The New York Times, which is publishing the full text of their responses online.

The answers show that most of them see the commander in chief as having the authority to lawfully take extraordinary actions if he decides doing so is necessary to protect national security. Only Mr. Paul, the libertarian-leaning congressman from Texas, argued for a more limited view of presidential power.

The views of the other four candidates who responded echoed in many respects expansive legal theories that were advanced by President George W. Bush. In certain significant ways, they dovetailed as well with the assertive posture taken by President Obama since taking office, like his expanded use of drones to kill terrorism suspects around the world — including a United States citizen.

The answers come against the backdrop of a decade of disputes over the scope and limits of presidential authority. Because executive branch actions are often secret and courts rarely have jurisdiction to review them, the views of the president — and the lawyers he appoints — about the powers the Constitution gives him are far more than an academic discussion.

Instead, in practice, a president’s views can influence such momentous matters as whether and how the country commits acts of warfare abroad, the rights of American citizens at home and the ability of government officials to keep information secret from lawmakers, the courts and the public.

You can find all of the Times’s questions, and the candidates answers (well all of the candidates except Michele Bachmann and Rick Santorum, who declined to answer), listed here. However, the answers are about what you’d expect:

Asked to describe the circumstances under which the Constitution permits a president to order the targeted killing of a citizen who has not been sentenced to death by a court, Mr. Gingrich, Mr. Huntsman, Mr. Perry and Mr. Romney all said that a president could order the killing of a citizen who joins an enemy force that is at war with the United States, at least under certain conditions.

“My preference would be to capture, interrogate, and prosecute any U.S. citizen who has engaged in acts of war against the United States,” Mr. Romney wrote. “But if necessary to defend the country, I would be willing to authorize the use of lethal force.”

The Obama administration embraced similar reasoning as the basis for a drone strike in Yemen this year that killed Anwar al-Awlaki, an American citizen whom executive branch officials accused of being a terrorist operative.

Mr. Paul, by contrast, described the circumstances in which a president could order the extrajudicial killing of a citizen in one word: “None.” Similarly, while Mr. Paul said that a president should not order a military attack without Congressional permission unless there was an imminent threat, the other four candidates agreed that a president could do so if he decided it was necessary.

Not surprisingly, as Jacob Sullum notes, Paul was the one exception among the group of respondents who consistently refused to endorse the expansive views of Executive Power that have come to prevail in American politics since the end of World War II (if not earlier), a fact that can be seen most clearly in the candidates response to a question that you’d probably never hear at any debate:

Which executive powers, if any, claimed and exercised by the Bush and/or Obama administrations were unconstitutional in your view? Were there any such powers that were simply a bad idea?

Paul cited unauthorized wars, warrantless wiretaps, torture, indefinite detention, and “the assassination of anyone in any country—including US citizens—[the president] deems an enemy combatant.” He said the excesses of George W. Bush’s counterterrorism policies were “among the worst abuses of executive authority in the nation’s history” and that Bush’s successor has been worse in some respects.

None of the others cited a single example of overreaching presidential action in the name of fighting terrorism or protecting national security. Gingrich said the problem is too little executive power, thanks to interference by the Supreme Court. Jon Huntsman declined to answer. Rick Perry complained that “Congress has turned over the power of the purse…to the executive branch…particularly with respect to the Troubled Asset Relief Plan [sic].” Mitt Romney’s main example of executive power abuse, the Patient Protection and Affordable Care Act, is actually an example of legislative power abuse, since Congress exceeded its authority under the Commerce Clause. Romney also cited a few relevant examples, including “automaker bailouts” and the “FCC’s attempt to extend its regulatory power to the Internet in direct contravention of U.S. statutes and a court decision.”

The fact that Paul was the only candidate to bring up the foreign policy and War On Terror based excesses of the Executive Branch over the past ten years (although I am sure Gary Johnson would have done so were he still a candidate for the Republican nomination) says a lot about the state of our political system, and the extent to which we have allowed the power of the Presidency to act, mostly in secret, to increase without any checks and balances. In fact, even a candidate who claims to have recognized the problem four years ago found the allure of near-absolute power to be all too seductive:

Mr. Obama — along with Mr. Romney and Mr. Paul — participated in a similar project by The Boston Globe during the 2008 presidential primary campaign. His record in office shows how circumstances and the assumption of power can alter views expressed in a campaign.

Asked if a president could bomb Iran without Congressional permission, Mr. Obama, then a senator, said, “The president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”

In 2011, after the United Nations approved an air campaign in Libya to protect civilians, Mr. Obama — without Congressional permission — deployed the American military to join NATO allies in airborne attacks on Libyan government forces. In asserting the legality of that step, the Justice Department issued a memorandum saying that Mr. Obama had inherent constitutional power to do so because he could “reasonably determine that such use of force was in the national interest.”

Later, Mr. Obama also adopted the view — overruling Justice Department and Pentagon lawyers — that he could lawfully continue the bombing and drone strikes beyond a 60-day clock imposed by the War Powers Resolution because they did not constitute the sort of “hostilities” regulated by that law.

I made note of Obama’s seemingly contradictory view on Presidential war powers when the Libya mission first began, and the Administration never fully explained the legal basis for their decision that it was more important to receive the authorization of the United Nations Security Council than the duly elected representatives of the American people. Of course it didn’t matter in the end because, not surprisingly, the Congress punted on its responsibilities and didn’t bother to hold the White House accountable for its decision. As I’ve said before, this Congressional retreat is both unfortunate and entirely predictable.

Which brings us to, this question:

In the absence of an imminent threat to the United States, under what circumstances, if any, would the Constitution permit the president to direct the armed forces to attack another country without receiving prior authorization from Congress? 

Paul’s answer: “Absent an imminent threat, a President should not undertake unilateral military action. As President, if I believed there was a threat to the US justifying military action, I would go before Congress and the people to present the case for war.” All the others said the president has the authority to use military force whenever he thinks it’s justified, although Gingrich added that “Congress’ constitutional power to cut off funding is an absolute check on the president’s ability to direct American armed forces.”

Huntsman’s response to this question was interesting:

“A president’s most solemn duty is to protect America and her people, and the decision to authorize a preemptive or preventative attack is one of the weightiest judgments a president can be called upon to make. In certain cases this may require Presidential use of force in advance of securing a formal declaration of war or an “authorization for the use of military force.” The president undoubtedly has constitutional power to launch preventative attacks; Congress conceded this both in the War Powers Act, and more recently in the preamble to the 2001 AUMF (which expressly conceded that “the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States”). The president should take all possible steps to secure congressional approval in advance of a strike, but where such process is impossible he or she must not rule out the use of military force to prevent a clear and present danger to national security.”

The kind of response one might expect from a diplomat, I suppose. Not inflammatory, but also not dismissive of the idea that preventative military action is an option that must remain in the quiver of options available to a President. One gets the impression, though, that he would not engage in the same kind of gung-ho foreign policy one would expect from a Gingrich, Perry, Santorum or Bachmann. Perhaps Romney would be the same way, but it depends largely on who his advisers would be (speaking of which, Huntsman would make a good member of the foreign policy team for a President Romney).

On the whole, though, what these responses reveal is that, much like the man they seek to replace, most of the Republican candidates for President not only have no objection to the manner in which he and his predecessor have used the excuse of the War On Terror to expand the powers of the Presidency, they are looking forward to assuming (and no doubt expanding) those powers themselves. The Times deserves some credit for raising this issue with the candidates, even if it is one that’s likely to get ignored by a Republican electorate that seems to be sadly addicted to total war. It’s just too bad that the Republicans aren’t going to nominate a candidate who can challenge the President over his usurpations of the Constitution here. But then, that’s been par for the course for about 60 years now, hasn’t it?