Takeover, page 6
But even Carter was aggressive at times about protecting or even expanding his institutional muscle to act without the approval of Congress. The power of the presidency is a neutral, nonpartisan issue; liberal presidents are as tempted as conservatives to do whatever they can to impose their agendas, and in several disputes that arose during Carter’s presidency, he created precedents that his successors would pick up on and greatly expand in frequency and breadth.
One of the most important Carter moves began in June 1978, when he publicly attacked Congress’s increasing habit of passing laws that gave one of its committees or chambers the power to veto executive branch actions.5 These laws tended to grant the executive branch more power to do something, such as to make a rule or regulation over some matter, but checked that new power by allowing the legislature to reverse any particular use of the authority. For example, Congress passed a law giving the Immigration and Naturalization Service the power to suspend the deportation of illegal immigrants if the agency found that the deportation would cause “hardship,” but Congress also reserved the right to overrule any such decision by a vote of either chamber. When the House voted to overrule the INS and force the deportation of a certain foreign exchange student whose visa had expired, the immigrant sued on the grounds that the legislative veto was unconstitutional. The Carter administration joined the student in the case, saying Congress could tell the executive branch what to do only if both chambers voted on something and then gave the president a chance to veto it. The litigation was still grinding on when Carter left office, but in 1983 the Supreme Court struck down all legislative vetoes as unconstitutional—a landmark victory for presidential power that eliminated many hundreds of similar checks across the federal statutes.6
Carter also battled Congress over control of treaties. In December 1978, he announced that the United States would pull out of a 1954 mutual-defense treaty with Taiwan in order to recognize the Communist government of mainland China. Senator Barry Goldwater of Arizona, the 1964 GOP presidential nominee and a conservative icon, led a group of senators in suing Carter, saying he had to consult them before abrogating a treaty. “Just as the president alone cannot repeal a law,” Goldwater said, “he cannot repeal a treaty, which itself is a law.”7 But the Supreme Court decided that the judicial branch should stay out of the fight, saying that Congress and the White House would have to work it out politically. Controlled by Democrats who approved of Carter’s policy, Congress let the fight lapse and left the constitutional question unresolved.
On November 4, 1979, a group of radical Iranian students overran the American embassy in Tehran, taking fifty-two U.S. citizens hostage for 444 days. During negotiations with Iran over getting the hostages back, Carter agreed to shut down lawsuits in U.S. courts by American businesses whose property in Iran had been nationalized and who wanted to seize Iranian property inside the United States as compensation. In turn, the business owners sued the U.S. government, arguing that their lawsuits were authorized by a federal statute, so the president could not summarily end them. The Supreme Court sided with Carter.
In April 1980, without consulting Congress, Carter commanded the military to launch what turned out to be a disastrous attempt to rescue the American hostages. Amid the fallout from the debacle, in which eight American servicemen died, some in Congress criticized Carter for ordering the high-risk mission without consulting with them ahead of time under the War Powers Resolution. But Carter argued that consultation had not been required because the rescue mission had depended on total secrecy and was not combat. His answer did not satisfy the critics, but Congress made no move to sanction him.
On November 4, 1980, Reagan and his running mate, George H. W. Bush, won a landslide victory over Carter and Vice President Walter Mondale. Reagan’s tidal wave swept the Senate into Republican control for the first time since 1954. Among the liberals who lost that year was Senator Frank Church, whom the Ford administration had battled over control of intelligence secrets. Democrats held on to control of the House but lost thirty-five seats.
The era of the “Reagan Revolution” would usher in a new period of conservative political action—and with it, the most aggressive push for a muscular presidency since Watergate. It would also mark a return to prominence for Cheney. Just four years earlier, Cheney had helped run Ford’s 1976 presidential campaign as it defeated Reagan in the Republican primary, thereby delaying Reagan’s ascent by four years. Now, however, Cheney forged strong ties with the Reagan team with help from Reagan’s first White House chief of staff—another 1976 Ford campaign veteran and a lifelong friend of Cheney’s, James Baker.
Two weeks after the election, Baker met with Cheney to seek advice about being a White House chief of staff. Baker took four pages of handwritten notes based on what Cheney told him that day, November 18, 1980. The notes mostly consist of recommendations about such matters as personnel and the president’s schedule. But Cheney also offered one piece of substantive policy advice: “Pres. seriously weakened in recent yrs. Restore power & auth to Exec Branch—Need strong ldr’ship. Get rid of War Powers Act—restore independent rights.” Cheney must have been emphatic in conveying this idea. Baker marked the comment with two double lines and six asterisks, and went back to the margin to add: “Central theme we ought to push.”8
3.
The Reagan presidency marked a widespread revival of conservative social and economic policies, coupled with an optimistic outlook and a revival of national confidence after the dark days of the 1970s. Rejecting the legacy of Lyndon B. Johnson’s Great Society programs as excessive, Reagan declared that America had put too much faith in big government programs as the solution to social and economic problems. Calling for lower taxes, fewer regulations, and weaker labor unions, he argued that everyone benefited from an economy that unleashed entrepreneurialism. The Reagan administration also pushed a social-conservative agenda, calling for a more “restrained” judiciary and seeking Supreme Court rulings that would roll back abortion rights and quota-style affirmative-action policies. And Reagan was staunchly anti-Communist, calling for increased military spending and a more confrontational stance with the Soviet Union and its proxy states around the globe.
These policies coincided with many positive developments for American society. The economy took off in a record-breaking expansion that led to strong job growth and low unemployment. And just a few years after Reagan’s term ended, the Berlin Wall fell and the Cold War came to a decisive end, with democratic capitalism the clear winner. (There were downsides as well; for example, Reagan’s surge in defense spending had helped bankrupt the Soviet Union, but it also led to enormous American budget deficits.)
None of these signature policies for Reagan depended upon any particular conception of the authority of the presidency. But along the way, a desire to increase the executive power became attached to the Reagan team’s agenda in the face of a liberal Congress. And as the White House team began looking for ways to achieve its conservative goals without congressional approval, a new partisan split emerged over the proper powers of the presidency. While Democrats in Congress continued to view the presidency through the lens of Watergate, supporters of Reagan sought to rehabilitate the early Cold War faith in a strong centralized authority inside the White House, and a subordinate role for Congress.
“Watergate was seen [by others] as a confirmation that those who govern must not be trusted with the means or discretion of governing effectively,” wrote Charles Fried, a conservative Harvard Law School scholar who served as solicitor general during Reagan’s second term, in his memoir. “… The presidency was seen as a particularly dangerous elite that had to be hemmed in by Congress, by a permanent bureaucracy, and by legal procedures and rules of all sorts.”9 But Reaganites increasingly rejected this view. Instead, they believed that Watergate was at worst an individual failing on the part of Nixon—an aberration from which the wrong lessons had been drawn. Alongside the other aspects of the Reagan ideology, a new tenet soon emerged. This was, as Fried put it, that “the President must be allowed a strong hand in governing the nation and providing leadership.”
In previous generations, presidents embracing imperial tendencies had often been Democrats—notably Franklin Roosevelt, Harry Truman, and Lyndon Johnson—and their power grabs were opposed by Republicans who embodied a traditional conservative distrust of concentrated government power. But the new generation of conservative activists, who had no firsthand memory of those fights, began to associate unchecked presidential authority with their desire for lower taxes, a more aggressive stance against Communism, and domestic policies that advanced traditional social values. To them, Congress was the bastion of liberal Democrats and liberal values, and the executive branch was for conservatives.10
The Federalist Society, a club founded the year Reagan took office, was an important driver of this new ideology. A trio of conservative law students at Yale and the University of Chicago established the club for an initially modest purpose: According to Steven Calabresi, one of its founders, the friends thought their law school faculties were too liberal, and they wanted to bring conservative speakers on campus to debate their professors in order to gain exposure to another point of view.11 But as its first members graduated from law school and moved on, the Federalist Society quickly grew into an enormously influential conservative network. Soon, it was no longer limited to campuses, as chapters and conferences sprang up for working lawyers. Although its membership was not monolithic, conservative legal activists tended to hone their ideas and make valuable connections at Federalist Society meetings and events, spreading the new way of thinking about executive power. And many of its first generation ended up working for the Justice Department in the Reagan and Bush-Quayle administrations. Especially under Edwin Meese III, Reagan’s second-term attorney general, the Justice Department became a giant think tank where these passionate young conservative legal activists developed new legal theories to advance the Reagan agenda.
“We wanted the Justice Department to be a dynamic place where we had people thinking beyond their day-to-day activities—thinking about the state of the law, and how the law and the legal profession could be improved, how the government could do a better job,” Meese later recalled. “We wanted to be a place of intellectual ferment.”12
Some of the older attorneys on the Reagan legal team thought the new generation sometimes went too far. In his memoir, Fried referred disparagingly to Meese’s “cadre of committed young assistants” who “thought of themselves as revolutionaries.” He blamed these “young advisers—many drawn from the ranks of the then fledgling Federalist Societies” for writing a series of provocative speeches for Meese to read in which he laid out “extreme positions, such as questioning the constitutionality of independent agencies or suggesting that the president need not obey Supreme Court decisions with which he disagrees.”13
Fried was not the only one to notice this. In an April 30, 1986, internal report generated by the Meese Justice Department on presidential power, one anonymous contributor warned that the short-term political contingencies in Washington were clouding their thinking about the long-term importance of the legislative branch and maintaining checks on executive power. “Conservatives traditionally have valued separation of powers because it operates to limit government,” the writer said. “However, some conservatives now are also finding separation of powers frustrating because it is sometimes an obstacle to the conservative political agenda, thereby serving to preserve the liberal status quo. They are thus inclined to make an exception to their usual respect for separation of powers and advocate a very strong President—primarily for the practical reason that an activist conservative currently sits in the White House, and they fear he may be the last.”
Mindful that liberal Democrats had been president before and would be again, the more senior members of the Reagan and Bush-Quayle legal teams kept a lid on some of the more extreme ideas their younger colleagues were coming up with. But two decades later, when the Bush-Cheney administration put together its legal team, the old generation was retired. Coming into their own, the Reagan Revolution generation of the conservative legal movement would revive two ideas about presidential power developed during the Reagan years—one arising from a fight over control of “independent” officials inside the executive branch, the other from a fight over funding anti-Marxist militants in Nicaragua—and push them to extremes.
4.
Reagan’s effort to deregulate the national economy initially met with little resistance from Congress. With the Senate in GOP hands and the House Democrats cowed by Reagan’s overwhelming electoral success in 1980, Congress generally went along in the first two years of his presidency as he pushed to eliminate rules in banking, media ownership, shipping, and a host of other areas. But Democrats picked up 27 seats in the House in the 1982 midterm election and started using their stronger majority to frustrate Reagan’s attempts to further deregulate the government.
The Reagan team increasingly turned to other tactics for achieving their goals. Reagan issued two executive orders requiring regulatory agencies to submit their proposed rules to the White House for cost-benefit analysis by political appointees, enabling the administration to quash or delay new regulations opposed by business interests. Reagan signed his first such executive order in 1981, days after taking office, then revisited the subject with a much more forceful version in 1985. The Reagan administration also put political appointees hostile to regulation in charge of several key regulatory agencies, where each had the unspoken mandate of stopping that agency from doing much. The tactic sparked a confrontation with Congress that led to the most dramatic fight over a president’s domestic powers during the Reagan era.
Reagan’s appointee to lead the Environmental Protection Agency, Anne Gorsuch Burford, opposed aggressive regulations to stop air and water pollution. Accusing her of dismantling the agency instead of directing it to faithfully enforce environmental laws, Congress began holding hearings into alleged political interference at the EPA. After the hearings, a dispute arose over whether Reagan administration officials had obstructed the investigation by illegally withholding documents and lying under oath. In December 1985, the House Judiciary Committee demanded an independent-counsel investigation into the actions of several current and former Reagan officials during the EPA investigation.
The independent-counsel law was one of Congress’s most important post-Watergate reforms. In 1974, Nixon had tried to derail the Watergate investigation by firing the prosecutor investigating the White House. To prevent such abuses of power in the future, Congress enacted the Ethics in Government Act of 1978. The law set up a special independent counsel who could look into high-level wrongdoing in the White House but who reported to a court and could not be fired by the president for political reasons.
Under the terms of the statute, Attorney General Meese had little choice but to comply with the committee’s demand by April 10, 1986.14 When the deadline arrived, Meese asked a court to appoint an independent counsel to investigate whether the former head of the Justice Department’s Office of Legal Counsel, Theodore Olson, had committed perjury in his sworn testimony to Congress during the EPA hearings. By 1986, Olson was out of government and working in private practice, but as a former high-ranking administration official, he still fell under the 1978 independent-counsel law.
Two weeks later, Meese was handed a confidential eighty-page memo with a deceptively bland title: “Separation of Powers: Legislative-Executive Relations.”15 Meese had commissioned the April 30, 1986, report from the Justice Department’s Domestic Policy Committee, one of his think tank groups of conservative activists. Among the Reagan legal team’s most detailed manifestos for stronger presidential power, the report noted approvingly in a cover letter that “the strong leadership of President Reagan seems clearly to have ended the congressional resurgence of the 1970s,” and it laid out ways to start recovering lost ground.16 It called for refusing to enforce statutes that “unconstitutionally encroach upon the executive branch,” vetoing more legislation, making greater use of “signing statements” to leave behind a record of the president’s interpretation of new laws, and attacking the constitutionality of the War Powers Resolution and other limits on a president’s national security authority. The report also laid out a revolutionary new vision of the president’s powers under the Constitution that would play a key role in the Olson case.
The Meese team argued that for two hundred years, courts and scholars had misunderstood what the Founders meant when they created the “separation of powers” system. The team rejected the mainstream view that the Constitution creates three separate institutions and then gives them overlapping authority over the government as a means of preventing the tyranny of concentrated power. Instead, they said, the Founders cleanly divided the powers of government, assigning to each institution exclusive control of its own universe. “The only ‘sharing of power’ is the sharing of the sum of all national government power,” the April 30 report said. “But that is not jointly shared, it is explicitly divided among the three branches.”
The report’s writers argued that the White House ought to be able to exercise total control over anything in the executive branch, which could be conceived of as a unitary being with the president as its brain. Thus, it was unconstitutional for Congress to pass laws giving executive branch officials independence from presidential control. Such a “checks and balances” law, they argued, was actually an invalid attempt by Congress to encroach on the rightful power of the president. Thus, if the White House didn’t like the interest rates set by the board of the Federal Reserve, or if it didn’t like how an “independent counsel” was prosecuting a case, the president should be able to remove such officials at will—even though statutes say that such officials cannot be fired by the president.
