So, why are so many so-called conservatives in the Republican party and in sympathizing legal circles so willing to advance a doctrine that asserts that the US president has sweeping inherent powers in times of war–even wars declared, paraconstitutionally, by the president himself? Or perhaps herself? Steven Taylor alludes to this puzzle in a post from 16 February, effectively asking those on the right whether they really are willing to countenance the possibility that a President Hillary Clinton or other Democrat might be able to assert such powers.
Ever since the theory of the “unitary executive” (which really ought to be called the unilateral executive) first came to my attention, I have wondered the same thing. But only after reading Steven’s post and pondering it over the last few days did it dawn on me that the answers to this puzzle have been right there in both my own body of academic work, and in a simple understanding of the ideology and constituency base of the Democratic party, as well is in structural conditions that make a politically supported unilateral Democratic President highly improbable. Republicans presumably know how implausible a unilateral President Clinton is, and thus do not fear her.
The broad outline of the connections to my academic work is that certain types of politicians favor a programmatically weak legislature alongside a unilateral executive. A programmatic legislature is one that passes detailed legislation with universal application, which in turn requires that it control the process of implementation to ensure that the executive follows the programmatic mandate. A non-programmatic legislature is one that is more interested in setting broad parameters than in the details of policy, and that is also relatively more inclined to the use of the pork barrel and other means of targeting benefits at the service of powerful constituent groups and campaign contributors. It is no accident, then, that the Republican congress has greatly increased the use of earmarks and established ever-closer relations with big-business lobbies, at the same time that it advances a “theory” of a unilateral executive that can selectively reinterpret statutes and selectively implement them. But all of this concerns domestic policy-making, not foreign policy or the domestic arm of “national security” actions. It is on the latter that I want to keep this post focused.*
The reasons why Republicans need not fear that the expansive inherent powers they are asserting on behalf of the Bush administration in the area of “national security” will come back to haunt them post-Bush have to do with the preferences of the parties and their support bases, and closely related matters such as their internal discipline. They also have to do with structural features of the US political system that make a unilateral Democratic presidency unlikely, even if my assessment of partisan differences were to prove incorrect.
I will list these factors in rough descending order of importance to the question of whether a future Democratic president would be likely to assert inherent “national security” powers such as those being asserted by the current administration, and whether such assertions, if they happened, would harm Republican interests.
1. In the area of foreign policy, Democrats and their supporters do not have an agenda of Global Domination, or more precisely, imperialism. It is not that Democrats are not in favor of advancing the interests of US capital and “security” abroad. It is that they prefer to do so in a tandem with other countries and international organizations while also promoting broader conceptions of the US “national interest.” Republicans know this, and hence a stronger presidency in “national security” policy is not against Republican interests, independently of any given incumbent’s party. Arguably, such a strong presidency, regardless of party, is even in favor of those interests, inasmuch as a presidency with unilateral foreign-policy powers but held by a party whose supporters do not endorse such policies is more capable of acting against the preferences of its own support base.
2. In the domestic side of US “national security” policy, Democrats’ support base would abandon a president, even of their own party, who pursued an expansive invasion of basic civil liberties at home. The Republican party contains principled conservatives (really, they are liberals stuck in the wrong party by the two-party straightjacket) who value civil liberties. But they tend to fall in line behind their party and president on essential matters of inter-partisan conflict (recent example: Specter and others voting for Judge Alito). Democrats would not fall in line. Republicans know this.
3. Somewhat in tension with my first point, while in further development of my second point, party discipline in congress–or at least the absence of clearly articulated opposition from congress–is essential to anything other than short-term unilateral action by the executive. That is, it is one thing to act unilaterally without prior explicit authorization from congress, but another to sustain such action in the face of opposition. So, while a president may be able to act in the short term against her support base or against the manifest wishes of congress (which was my first point), she cannot do so in the longer run unless she has support in the legislature and in her own party, and my second point was that a Democratic president would be unlikely to have such support within her party.
So, taken together, the first three points say that a Democratic president would have a different set of foreign-policy preferences, a lack of intra-partisan support for assertions of extraordinary “national security” powers at home, and could not do these things anyway without such support. But suppose I am wrong and a future President Clinton (or Kerry or Warner, or whoever) does want to take advantage of unilateral powers and does enjoy partisan backing. What are the chances that the conditions that came together to allow Bush to assert such powers would prevail for Clinton (or another Democrat)? Not very.
4. A Democrat is less likely to enjoy unified government, yet support by majorities in both houses is essential to the employment of unilateral powers for partisan gain, and that really is the issue here. If Republicans favor a Democratic president’s assertion of unilateralism, no problem. The risk for them is that a Democrat uses these powers against Republicans and Republican policy preferences much as the Bush administration has used them against Democratic policy preferences. A president facing divided government could not do so. Republicans know this. The House and Senate are somewhat unlikely both to turn Democratic, except perhaps precariously and for short periods (2006-08 or -10?). Partly this assessment is due to gerrymandering (in the House), malapportionment (especially in the Senate, but over time, increasingly so in the House), and partly it is due to campaign-finance imbalances, and the rampant use of earmarks to cement critical local financial support. Democrats are somewhat unlikely to take and hold both houses for more than a term or two, but let’s suppose that they do hold congressional majorities for an extended time. If they do, it will be with a broad an internally diverse party, because the party would have to expand its reach and its “big tentness” in order to secure these majorities (which then gets us back to point 3). Republicans know this.
5. As the Supreme Court becomes ever-more partisan, a Democratic president is less likely to obtain judicial backing for an assertion of disputed unilateral powers, even if that president wants to, even if the Democratic party does not turn on the president for doing so, and even if the party remains unified and controls both houses of Congress. The Court remains an ultimate check on a Democratic president pursuing a narrow partisan agenda with the aid of unilateral powers. Republicans know this.
6. Finally, Democrats can win presidential elections under current conditions only in close contests. The playing field, especially with the electoral college, is stacked against them unless they “run the table” of the most critical swing states, as Gore did in 2000. And we know how that turned out. If you can win only close elections, but it is precisely in those close elections that the other party has the advantages of partisan control of swing-state electoral authorities, and at the end of the day, the Supreme Court, the only Democrat who can win is one who has a broad mandate, and not one with a narrow partisan agenda, a la Bush. Republicans know this.
For a variety of reasons, both partisan and structural, the probability of a Democratic president seeking to assert expansive “wartime” powers abroad and domestically and having the partisan, congressional, and judicial backing to do this against Republican interests is low. I do not know how low, but it is too low to offset the considerable gains they obtain from having one of their own assert such powers. And Republicans know this.
*I have already presented some elements of the domestic-politics side of this story to a degree, in my post on the “Latin Americanization” of the US presidency. There I focused more on the executive itself, and less on the legislature or why some politicians–even legislators–would actually favor such a presidency. Here I want to focus on the partisan differences between Democrats and Republicans, and why these differences mean that Republicans have little to fear from the specter that a future Democratic president might use the unilateral powers in the area of “national security” that this administration claims are inherent.