Why Republicans need not fear a unilateral President Clinton

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.

14 thoughts on “Why Republicans need not fear a unilateral President Clinton

  1. I wonder to what extent you still agree with this, MSS, five and a half years later.

    There are many relevant points, but I will highlight this one:

    “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.”

    • JD, it is a great question. In fact, it is one I have thought of many times, but never taken the chance to write up.

      The short answer is that I underestimated how strong the party-colors-tinted glasses have become in America. I am sure there is a longer answer, and I really have been meaning to go back and parse this old post some day. Maybe, with your prompt, I will actually get around to it.

  2. I’m forced to say that, as with the budget rules in the US, the unilateral commander-in-chief powers, are unknown in the rest of the democratic world. The nearest analogy is the royal prerogative in the Westminster countries and it does not even come close, both because of the limits of the prerogative and because exercising unilateral powers is a very different prospect for a responsible prime minister and a non-responsible president..

    That is compounded by the Chadha decision and the inability of the US congress to control delegated legislation. It is frankly bizarre that the US presidency enjoys powers that George III and his ministers could only have dreamt of. In fact the inherent powers claims come very close to the project of Henry VIII and Thomas Cromwell

  3. To have one unilateralist president trample on human rights, Prof. Shugart, may be regarded as a misfortune. To have two in a row looks like carelessness.

  4. Alan @6: Also, in most parliamentary countries, the prerogative powers of the Crown are common law rather than entrenched in the Constitution. Thus they can be regulated or even abolished by Act of Parliament. (George Winterton’s 1993-94 draft of a constitution for an Australian republic would have spelled this out explicitly).
    Had the Chadha judgment only invalidated legislatures reserving themselves a power to veto or disallow administrative decisions affecting one individual, it would have been desirable as upholding the Presentment and Attainder Clauses. However, in conjunction with the US fiction that Congress cannot and does not “delegate legislative power”, it prevents useful Congressional control of general but subordinate legislative rules. (Australian judges talk quite unabashedly about Parliament “delegating” legislative powers; it just can’t “abdicate” them…)

  5. … In other words: Because Congress can’t constitutionally delegate “legislative” power, every power that Congress delegates must be officially labelled “executive/ administrative”, regardless of whether it be “The deportation order made against Jagdish Rai Chadha is hereby voided” at one extreme or “No person or corporation shall donate more than $25,000 per election to any candidate for federal office” at the other, in terms of generality.

  6. And then there is the extremely succinct S101 of the South African constitution:

    (3) Proclamations, regulations and other instruments of subordinate legislation must be accessible to the public.
    (4) National legislation may specify the manner in which, and the extent to which, instruments mentioned in subsection (3) must be –
    (a) tabled in Parliament; and
    (b) approved by Parliament.

    Wikipedia maintains separate articles for ‘Rule-making’ (US) and ‘Delegated legislation’. Attempts to merge the two pages have run into a brick wall from US constitutional traditionalists who insist there is now secondary legislation in the USA. Even leaving aside the clear fact that federal rules are secondary legislation, they have obviously not read S23 of the Alaska constitution.

    § 23. Reorganization
    The governor may make changes in the organization of the executive branch or in the assignment of functions among its units which he considers necessary for efficient administration. Where these changes require the force of law, they shall be set forth in executive orders. The legislature shall have sixty days of a regular session, or a full session if of shorter duration, to disapprove these executive orders. Unless disapproved by resolution concurred in by a majority of the members in joint session, these orders become effective at a date thereafter to be designated by the governor.

  7. @3, I was under the impression that the French president generally has pretty-much unilateral powers as commander-in-chief, even in times of cohabitation. As I understand it, it is an unentrenched constitutional convention that in cohabitation, the PM controls domestic policy and the president controls foreign policy.

    While they’re not in cohabitation now, I think Hollande’s initial decision to intervene in Syria without even requesting the legislature’s support reflects this.

    Or am I misinterpreting the situation?

  8. French presidents do enjoy very wide autonomy in foreign affairs (as do Westminster prime ministers) but the domain reservé does not extend to actual lawmaking, much less to the making of laws without any kind of control by the legislature. The president also has very wide powers during a state of siege because de Gaulle was convinced that the parliament failed in 1939 when it conceded its powers to Petain, but again they are ultimately a matter for the parliament to confirm or disallow.

    Francophone constitutions tend to create a ‘regulatory domain’ where the executive can issue secondary laws, but they are still reviewable by the parliament and they are limited in subject matter. The regime of a separate legislative domain, where the commander-in-chief’s unilateral decisions have the force of law is strictly a US thing, and a fairly recent one even in the US.

  9. Myself @5-6: (1) Correction – If I read-ed Chadha correctly, legislative disallowance of individual-specific, one-off delegated decisions is bad for violating the Attainder Clause (by singling out identifiable individuals). Whereas legislative disallowance of general, rule-setting delegated decisions is bad for violating the Presentment Clause (by changing the contents of the statute book without either presidential assent or two-thirds of both houses). Checkmate. Not sure how the War Powers Resolution is constitutional, then, although it’s possible the Supreme Court might avoid ruling on the matter by calling it a political question.

    (2) By “parliamentary” I was focusing on Westminster systems under the British Crown. The positions of executive (or general governmental) prerogative can be different in republics. The Supreme Court of Ireland has ruled that any prerogatives inconsistent with the ideal of popular sovereignty were impliedly abolished by the adoption of a republican constitution. Thus Mary Robinson did not own all swans or beached whales in the twenty counties during her term as President.

  10. I think it’s argued that the War Powers Resolution is not an Act of Congress. It is, if you will, yet another separate and unilateral legislative domain exercisable only by the congress because the constitution vests the power to make war in them. And let us not even start on which courts are Article III courts and which courts are something altogether different.

  11. It is January 2019. Immediately after former Vice-President Pence signed a plea bargain, former President Trump and his family took refuge in the Russian embassy. Congress acted swiftly to impeach and remove Trump from office. President Pelosi has announced she will resign as soon as the house elects Hillary Clinton as speaker. On most days former President Trump tweets orders that the US Air Force bomb Congress, the DNC, the Supreme Court, the Special Counsel’s Office. the Canadian Embassy, and the White House.

    President Pelosi calls for submissions for a constitutional amendment no more than one sentence long to address the events of 2016-9. You write in saying…

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