War and The American Presidency

This is a book that will forever contain, written with clutched pen and furrowed brow, some of the most annoyed annotations I have ever written. Beyond being boorish, repetitive, and for the most part not even well written, this book’s greatest fault was its inability to connect its scattered parts into any larger whole. I already have to read two other blogs for this class; I don’t need to be forced to stomach a third in printed form.  Rather than building much of a logical progression, the author just provides us with these segmented pieces of thoughts. And there are no sources! Some of the stuff is straightforwardly historical, so that’s fine or whatever, but what about the statement he makes on page 116 about how “the majority of the killing around the world is the consequence of religious disagreement”? That’s pretty bold. He says it because he wants to back up his statement that “terrorism…is the greatest current threat to civilization.” But…he just doesn’t prove that. As far as I can tell, the man just pulled that statement out of his ass, and I found it really off-putting. (Especially since I just went to this lecture by this Islamic studies scholar where he showed all these UN charts about how terrorism, religious and non-religious both, only accounted for 1/500 murders worldwide. And most of those were Iraq/Afghanistan [and thus war] related. Even accounting for religious persecution doesn’t make this statement any more viable. Is he counting every cultural conflict as a religious one? Look, I’ll stop harping on this now, but this statement is where he really lost me.)

            What is everyone else seeing in this thing that I’m missing? The New York Times, the Boston Globe, Washington Post Book World, the Chicago Tribune…everyone had these glowing things to say about it. *4/28/11 - remainder of paragraph edited out for politeness' sake.*

            K, well. I have to give this book a thesis. Now that I’m looking at it again, I guess he states one at the beginning. Or he at least states his purpose in writing this book. (which is…almost the same.) I just forgot about it as it went along because most of the stuff he talked about wasn’t relevant. Schlesinger Jr. wrote War and the American Presidency because American’s aren’t a tabula rasa, and he wanted to give a historical background for the US-led invasion of Iraq. But, as previously stated, it just provided him with a license to talk about whatever he wanted. Like that chapter about the Electoral College. (the majority of CH 5) Or that bit about how Truman and Roosevelt were sub-par historians. (P 124)

            So, Schlesinger’s goal was to “supply the historical background for current controviersies in the hope that history might throw some light on choices that are ours, or at least our masters’, to make.” Feeling that no light was shed? I personally assert that he failed. Look, I don’t really want to talk about this book anymore, especially after writing that seven-page revenge essay, so I’ll just end by saying something nice: it was quick and easy to read, and it gave me something to do on a really long plane ride besides watch an insipid romantic comedy.

            

Justice Jackson's Twilight Zone

According to Jackson, there are three varying levels of power that a president may possess in a given situation, and all are dependent upon his relationship with Congress. A president’s power is at its peak when it has the support of congressional authorization. It is in a “twilight zone” in the middle when congress neither approves nor denies, and it is “at its ebb” when the President takes measures that are in opposition to the will of congress. After he outlines these three levels of presidential power (in their relation to congressional approval) Jackson makes clear his belief that Truman was acting unconstitutionally in seizing the steel mills. He says that this wasn’t even in the twilight zone of ‘maybe it’s acceptable, maybe it’s not.’ This was an action Congress considered and purposefully chose not to give to the president, so he was acting in his power at it’s lowest ebb, and it was totally outside the boundaries of acceptability.

            Personally, I thought Justice Jackson’s train of thought was a little confusing. He said (I think) that since congress was so willing to authorize the president all kinds of emergency powers anyway, that there was really no strong argument for the president acting without their explicit approval. To quote, he said he was “quite unimpressed with the argument that we should affirm possession of [emergency powers] without statute. Such power either has no beginning or no end. If it exists, it need to submit to no legal restraint.” This is perplexing because it seems to run counter to Justice Jackson’s previous statement about the “twilight zone” of power. Is he just arguing that the idea of the ‘twilight zone’ is a bad one? Is he acknowledging it’s existence but castigating the president for engaging in it? Or is his disapproval relevant only for this specific incident? Because he seems darn disapproving in general…

            Compared to the time spent on congress, the space Justice Jackson devotes to talking about the Supreme Court’s relation with the president is very brief. In short, Jackson believes that the president is “relatively immune from judicial review.” I don’t know what his evidence is to back this up exactly? Truman didn’t keep the steel mills in possession of the US govt after the Supreme Court ruled against it, so they do seem to have some power. But Jackson, in this poetic but slightly martyred tone, sets down the main duty of the Supreme Court as ‘holding the line’ against Presidential encroachment upon the other branches. “Such institutions may be destined to pass away,” he says, “but it is the duty of the court to be last, not first, to give them up.” So basically, the growth of presidential power is this massive, unstoppable hurricane, but the Supreme Court just has to put up sandbags and hope for the best. Or something.

            Oh! Also: checks and balances. Jackson pretty much thinks the president is outside of them. He’s reached this meta-level beyond being bound by them anymore. Thanks to his “prestige as head of state and his influence on public opinion, he exerts a leverage upon those who are supposed to check and balance his power which often cancels out their effectiveness.” Jeez. This is a really depressing view of the situation. Apparently the US president is basically a demi-god who does as he wills, subservient to no man. And thanks to the rise of political parties, Jackson says the president has this whole new way to supplement executive power. Yet one more tool to subvert constitutional checks and balances and get his way!

            I think I actually agree with Justice Jackson? (Except for the fact that I’m slightly confused by him.) I just think he’s being a little hyperbolic here. I’m anxious to read your guys’ blogs, cuz I feel like I really missed the point of this one.

Libya vs. Kosovo: the Rationale of War

Doctrines are the province of ideologues and starry-eyed optimists. They’re grand, sweeping statements that inevitably and immediately beg to be broken.  Truman ‘s was “to support free peoples who are resisting attempted subjugation.” And then there’s Kennedy, who was willing to “pay any price, bear any burden… to assure the survival and the success of liberty.” Lovely words, great quotes.  But that’s all they are. No president has the resources, the political capital, or the ability to tackle every injustice going on in the world. They all have to pick their battles.  I mean, did Kennedy remove all the dictators from the world? Not exactly. I’m glad he supports liberty. Cool. He’s the President of the United States, after all. But that part about bearing any burden and paying any price just rings false. (Maybe people in the 60s hadn’t developed cynicism yet.)

It seems to me that Obama’s only problem here is that he was too honest. No, he doesn’t have a doctrine, because you can’t create very many useful guidelines for all the possible parameters of war. And making statements like Truman’s and Kennedy’s just makes everyone critical later when you can’t follow through on them. What Obama did instead was take into consideration three things: level of international support for the mission, need for humanitarian assistance, and level of threat to American values/interests. Having looked at all that, he determined that it was imperative we act in Libya. To me, these seem like the major things one would always have to weigh. (other than in the instance of a direct attack on us or a pressing national security thing. Those are more straightforward.)  It’s not a doctrine; it’s a careful examining of the situation and the key factors that make it up.

In addition to a careful examination of the present factors at play, presidential decision-making is also influenced by past foreign policy events. Obama made reference to “avoiding another Iraq,” and Clinton pressed for action to “prevent a situation like the one in Bosnia.” Past failures seem to rest heavily in decision-making, as leaders attempt to avoid the mistakes of the past.

Obama and Clinton, in addition to both being ‘doctrine free’, had a lot of similarities in the speeches they gave. Both noted their international mandates and broad coalitions of support. Both rested the need for action on humanitarian grounds- brutal dictators harming defenseless civilians. Both stressed the effect turmoil in this country would have in surrounding nations. In Obama’s case it was the “peaceful but fragile” transitions going on in Egypt and Tunisia, and in Clinton’s it was the newly independent eastern European democracies.  They did differ slightly on this argument: Clinton took it further, saying that the US needed to act now, so that they wouldn’t have to act to stop a much wider, worse conflict in the future. Clinton framed his argument as “action as a preventative measure.” Obama, on the other hand, admitted that our national security interests were not directly at stake. Rather, in allowing the situation in Libya to continue, it would be our values that were at stake.

So, to conclude. Since there’s no Obama or Clinton doctrine, it’s not easy to tell how they’d react to specific situations. Would the international community support their action? Because not being seen as the world’s sole policeman is important to both of them. Would direct US interests be at stake? I.E. Does this nation pose an imminent threat to the US? Is this nation harming American citizens in some fashion that calls for military action? Can we afford it/ do we have the resources for it? This is the major kicker, here. There may be conflicts in ten middle eastern countries right now, but we’ve still got troops who are pretty busy in Iraq and Afghanistan (and probably in Pakistan.) We don’t simply have the ability to go try and overthrow every world leader that we think is bad for his country. *shrug * Sorry guys, but I’m not really interested in pretending to moral high ground b.s. I don’t want us to sit idly by while tragedy occurs, but I don’t want us to bankrupt our country in a futile attempt to fix the world. (also, I still want our military budget to be MUCH SMALLER. But that’s another argument) And I think Obama agrees with me. He said in his speech that the well-being of the American people needs to be our north star, our guidance in what to do in cases like this. And well, he’s right. That’s how nation states work. They protect their own people, get their own houses in order first, and then they do what they can with the bounty they’ve been given.

Edit: final thought. I do think that obama as a president is willing to be bolder in acting internationally than Clinton was, but I don’t have a good explanation for that. Maybe just all the practice he already got with running two wars in the middle east? But, as he pointed out, it took Clinton over a year to act in Kosovo. The international community came together over Libya in a month.

the myth of the objective judiciary

The modern federal judicial nomination process is interesting because even as the actual records of the nominees have grown more substantive, the process by which they’re confirmed seems to have become equally less substantive. Thanks to Nixon, we’ve experienced a professionalization of judicial nominees since the 1970s. This means that a modern nominee to the Supreme Court will have extensive experience with the law, and oftentimes will have already served with distinction as a judge on a lower court. This is a strong contrast to the previous system, in which a close relationship with the president was the deciding factor in the nomination of this ragtag band of former governors, congressmen, and assorted politicos.

(Can we just pause here for a sec and note that for a paranoid man suffering from delusions of grandeur, who will only ever be remembered for Watergate, Nixon did a couple really awesome things? This stuff with the judiciary, opening trade with China, the EPA, even… He might be my favorite Republican president. For the lulz, if nothing else.)

Am I happy with the way the process typically proceeds? Well, I’m glad that the people who are appointed actually have knowledge of the law and the Constitution, and that they tend to have judiciary experience. In that sense, yes, I’m happy. Those seem like important prerequisites to me.  Some random ex-governor is not my idea of a qualified ultimate arbiter of the law.

But in the larger sense of whether or not I’m actually satisfied with the process of confirming a justice, the answer would be no. How could I be satisfied with a process that benefits people with absolutely no record? Yeah, I get it; the more vanilla and uncontroversial a candidate, the more likely they are to make it through the confirmation process. What it really comes down to is that the Senate needs to stop being full of filibuster-happy a-holes. Does that mean I think they should just rubber-stamp everybody through? No! But they need to recognize that people with views differing from them can still be qualified candidates. Sliding people in through this no-record-to-complain-about route does not promote the necessary “free and open exchange of ideas” that senators should have to appropriately judge a candidate.

Note: I just want to make clear that Robert Bork would NOT fall into the category of “people with differing views who are still qualified candidates.” After reading up on the guy for our project, I’m so, so glad he didn’t get confirmed, even if it was the inception for the way the whole annoying process currently goes. The man didn’t believe in a right to privacy! That’s scary! That is what we call legitimate grounds for concern in a justice.

So, are we getting the caliber we ought to expect? As I’ve argued, they come with all the right qualifications now, but the lack of a real record to go off of keeps this question from having a simple ‘yes’ for an answer. I’ll call it a reserved ‘probably’ instead. But that doesn’t make the nation any less deserving of an open debate.

The next, and apparently more important, part (oops. Shouldn’t have spent a whole page discussing the previous stuff) is regarding this mythic idea of the apolitical nature of the court. Justices are not apolitical. That is silly. Justices are incredibly intelligent, sharp people with well-formed ideas. And since they are PEOPLE, they have opinions. What kind of good is it doing to pretend that they don’t? Because it seems pretty sure that they’re still affecting the decisions they make and the cases they rule on. Pretending that justices don’t have biases is about as useful as pretending the media doesn’t. Just be honest about it already, so that people can understand where things are coming from. Admitting your political leanings doesn’t mean you’ll have any less respect for the constitution or rule of law, or that your promise to faithfully interpret it will be null and void.

I was looking up SC quotes to use, and I found one from Irving Kaufman, who said “the Supreme Court’s only armor is the cloak of public trust; its sole ammunition, the collective hopes of our society.”  But would it really lose the public trust to be straightforward about one’s views? The myth of objectivity just seems so obviously untrue that it’s worse than useless. It’s utterly hypocritical. There’s no way a blatant denial of what is clearly in front of someone’s face will increase the trust they have in an institution. 

Additionally: it’s not like liberal vs. conservative is the only spectrum on which cases are judged. According to NPR*, almost half of all cases in the 2010 session ended up with 9-0 rulings, after all. I don’t think a general acknowledgement of political leanings would do anything to endanger that, and in some cases where things are obviously political, it might force judges to actually be more careful than they are now. Would Bush v. Gore have been such a ridiculous decision if judges were forced to answer for their partisanship openly? If they wanted to maintain any semblance of trustworthiness/respectability, one might think not…

As you can probably tell by this point, I’m not a big fan of the president supporting the ‘myth of objectivity.’ I think it’s disingenuous. Nor do I really think the president gains much from supporting it, so I’m not sure what his incentive there even is. I suppose it could make it harder for him to get candidates confirmed, but just because I may understand it as a strategy doesn’t mean I support it as a principle. Modern presidents don’t even have it that bad, as far as their track records for confirmations go. President Tyler had the opportunity to fill two vacancies on the high court, and over the course of 15 months made NINE nominations, only one of which made it through. (Yeah, only semi-relevant, but I thought it was cool.)

It seems like presidents don’t have much of a choice in the matter though. Remember how much trouble President Obama got in just for mentioning the word “empathy” in conjunction with Justice Sotomayor’s confirmation? Apparently the view that justices are just law robots spitting out the indisputably correct facts is still a prevalent one… Well, about 130 years ago, some eloquent guy named Oliver Wendell Holmes, JR. disagreed, saying “ the life of the law has not been logic, it has been experience…the law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.”

Washington is all about having “adult conversations” about things these days. Maybe it’s time we had one about the way the Supreme Court nominations process goes. I can see why that’s a conversation the president wouldn’t want to have, but it’s still one we as a country need. 

Representation - Addendum

I was all in a tizzy about getting that post in before 11, and I forgot a couple things that should probably be mentioned.

Topics where I'm most comfortable with the president being a trustee: foreign affairs, technical/scientific issues, civil rights issues, economic/ job growth issues.

Topics where it's probably better for the president to be a delegate: ...basically everything else? Stuff like gun rights and education policy, for example. Also, if the president would like to be reelected, it's probably important for him to act (at least somewhat of) a delegate on the issues people care most about. According to a Pew Poll* done in January, the policies most rated as a "top priority for 2011" were the economy, jobs, terrorism, education, and social security. Hmm. Tricky. Knowing what issues people think are important isn't enough; you also have to know what it is people want done about the situation. Take 'jobs', for example. Yeah, we all want there to be more jobs and lower unemployment. But is there a broad consensus on how to make that happen? And if there's not, does simply acknowledging the issue and coming up with some sort of plan qualify you as a delegate? If the people are saying "we need more jobs" (but they don't have any concrete message about how) and Barack Obama's all "here's my plan for more jobs!" does that make him a delegate? Or is he only a delegate if people are like "here is our plan for reducing unemployment" and he says "ok, i'll put this plan into action right now!" The delegate / trustee schism doesn't seem to work very well with this example.

I feel like this added paragraph was more confusing than enlightening, but I wrote it, so I might as well put it up...I feel like I had an important thought somewhere in there. Or I just wanted to show that I had more facts and figures. (cause i know you guys are totally impressed by the fact that I've now linked you to two sets of stats instead of just one.)

*http://pewresearch.org/pubs/1865/poll-public-top-policy-priorities-2011-health-care-reform-repeal-expand

Representation

So, who does a President represent? The short answer is, well…everybody. “The people.” Americans. His country as a whole. Not just the voters, not just his party, not just the big corporate donors that contributed to his campaign. The President is there to do what’s best for the entire nation. Sure, if he’s a democrat, his policies will still generally reflect democratic principles. That’s the lens he sees the world from and the ideology he subscribes to. But that’s not the same thing as the ‘party first’ mentality, not by a long shot.

What type of representative should he be? It seems like the only answer that has any real-world applicability is politico. The other two options are just these abstract, oversimplified concepts that don’t have a lot of merit when you’re trying to describe the way the political process actually works. What politician’s record could ever be put 100% into either the delegate or trustee category? The terms make sense if you want to use them to describe the way a politician reacted to a single, specific incident, but are pretty much useless otherwise.

How exactly does a President represent the American people, and what does representation even mean in this sense? Well, first and foremost it entails abiding by the Constitution and by the laws Congress has passed regarding the Executive Branch. (Sorry if that seems stupidly obvious, but bear with me.) Representing America means respecting the principle of majority rule while protecting minority rights. It does NOT mean that whenever 51% of Americans who happen to have been polled get some damnfool idea in their head that the President should immediately reverse course. Yes, if the majority of people seem to be strongly in favor of something (AND there doesn’t seem to be any likelihood of chaos erupting as a result of it, AND it doesn’t encroach on anyone’s rights) the president should probably accede to their will/demands. But honestly, isn’t that kind of what we have Congress for? To be all in touch with the people or whatever? Yes, we elect a President based on a broad policy agenda, but we also elect him to be a leader, and to make decisions. Part of electing a President is about choosing someone whose judgment we trust. I may not agree with everything the President does, but I have to respect his right to be, as much as it pains me to use  the term, “the decider.” Within the limits that Congress has set for him, anyway. If we wanted things to swing with whatever a majority of people believed at the time, we could just have a referendum on everything.

Now obviously this isn’t a good idea in the least. (It’s an impossible one, actually. What a mess. But it brings me to my next point: Ugh. It’s so hard to tell what the ‘American People’ actually want. They’re not some unified body.  There’s no group consciousness or way to make every person happy. There’s this clamoring mess of opinions, and upset, angry people always seem to have much bigger microphones than people who are actually happy with whatever the president proposes. Not to mention the questionable trustworthiness of polling data…

Another question raised was whether people’s level of knowledge on issues matters. Yes! It matters so much! It totally matters! Who are these ridiculous people that say it doesn’t matter? We don’t expect the public to negotiate nuclear treaties, and to be quite blunt, we shouldn’t necessarily care what they think. Americans are busy. They’ve got jobs and shit to do. They don’t have time to be experts on every political issue. Again, that’s why they have Congressmen. (Not that Congressmen are actually experts in most of these things either. That’s why they have staff…) Just ‘cause they came up with some half-cocked notion anyway based on a couple minutes of some incendiary rhetoric from some useless talking head doesn’t mean it’s a good idea. Take global warming, for example. According to this Yale University/Gallup poll I found*, less than half of Americans believe there is scientific consensus on global warming, and about 70% are opposed to increasing gas or energy taxes to help combat it. Should the president really wait for everyone else to get on board if he views global warming as a looming threat to our future security?  No! It’s a highly technical, scientific issue that a majority of Americans* admit to not generally being that worried about. Sounds like a textbook case for acting as a trustee rather than a delegate…

Ok, I think the last thing I really have to mention is substantive/descriptive/symbolic representations. Maybe I’m viewing this too simplistically, but this part seems really easy. As far as the president is concerned at least, substantive and descriptive representation should be the same thing. I argued before that the president is a representative for all Americans, so he’s working to enhance the substantive representation of everyone equally. Not one specific social/demographic group over another. They’re all equally his constituents. Am I viewing this wrong? It seems like it makes sense. Barack Obama’s not just there to help middle aged guys or half-black people or people born in Hawaii or whatever; he’s representing the collective ‘social group’ that includes each and every US citizen. Symbolic representation, on the other hand, I have a major problem with. It’s totally insidious. That would be like women congressmen saying that women shouldn’t be able to vote. How do you turn traitor on your own interests like that? And it gives things this veneer of authority, like “oh, she’s a woman, so she knows why women shouldn’t be able to vote.” That’s an exaggerated example, but the point holds. (I had others, but they seemed more…contentious. Does this point make sense though?) Symbolic representation just seems to be using your social/demographic group in a most unseemly manner for your own personal ends. I can’t think of an example where I like it. At all.

So, reading back through this, I’m suddenly realizing that I view the Executive Branch in a much more paternalistic, overarching manner than I would have originally assumed.  Apparently I’m a Rooseveltian at heart after all…

* http://environment.yale.edu/news/5310

Theories of the Presidency

I’m trying to imagine the idea of Taft and Roosevelt being good friends. The book says they were, but it seems like a very unequal pairing. Taft would so have been the Robin to Roosevelt’s Batman. You just don’t think of TR having friends so much as…lackeys. Sycophants.

Unsurprisingly, the vastly different personalities of these two men carried over into their theories of executive authority. Roosevelt’s conception of the president’s power was known as stewardship theory. Here’s a quote from his autobiography that sums it all up:

I declined to adopt the view that what was imperatively necessary for the nation could not be done by the President unless he could find some specific authorization for it.  My belief was that it was not only his right but his duty to do anything that the needs of the nation demanded unless such action was forbidden by the Constitution or by the laws. . . .  I did not usurp power, but I did greatly broaden the use of executive power. . . .  I acted. . . whenever and in whatever manner was necessary, unless prevented by direct constitutional or legislative prohibition. . . .  The course I followed [was] of regarding the Executive as subject only to the people, and, under the Constitution, bound to serve the people affirmatively in cases where the Constitution does not explicitly forbid him to render the service.

Theodore Roosevelt  [The Autobiography of Theodore Roosevelt (NY: Scribner’s, 1913).]

So, in short, Roosevelt thought he could do anything the constitution didn’t explicitly bar him from doing. This argument seems a little like a kid telling his mom that she didn’t say he couldn’t have ten cookies, so he assumed it would be ok. I admire the audacity of it though.

Taft’s argument, like Taft, was much wimpier. (Does his theory even have a name? Is it just the Whig theory? Well, it lost out anyway, so I guess it doesn’t matter much.) Taft believed that a President’s powers were limited to those explicitly stated in the Constitution. If it wasn’t an enumerated power, then it wasn’t any sort of power at all. This version of the Presidency is much more constrained and circumscribed; it’s a theory of the presidency that sees Congress, rather than the executive, as the dominant branch.

I’m a little torn on what I think about these two theories. Rarely is there a topic on which I haven’t developed an annoyingly strong opinion, but this one has me at a loss. I think I’m just too biased. I remember someone in our class saying that he supported Roosevelt’s theory when he liked the president and Taft’s when he didn’t, and that’s exactly how I feel about it. Such arbitrariness is not exactly a strong basis for building a theory of the presidency. The rules have to apply to everyone. But what should the rules be??

Can I just argue instead that Roosevelt’s theory has already won out? There’s really no going back to Taft’s conception of a subservient executive branch at this point. Power, once ceded, is very difficult to take back. And I do, as a general rule, lean more toward Roosevelt’s conception than Taft’s. You can’t rely on Congress as the dominant entity if you actually want to be able to get things done. A working government needs one leader to be able to turn to, one person to be responsible for making quick decisions.

I think that one thing both sides can agree on is that whether you think the President should have more power or less, his official Constitutional authority is annoyingly ill defined. Maybe that sort of flexibility was necessary when the founders first wrote it, but it’s time we put some clearer parameters on the office of the President.

Part of the problem seems to be that we need to leave Presidents room to deal with unforeseen situations, and strictly defining the limits of the Presidency might get in the way of that.  Do I think FDR should have been able to put Japanese people into internment camps? Or that Lincoln should have been able to suspend habeas corpus? Absolutely not! (Obviously!) But what specific limit on executive authority would have prevented this?  How do we limit these kinds of injustices without neutering the presidency so much that it’s no longer effective?

I feel like this has been a really unsatisfactory blog entry, so I hope that you guys had clearer ideas of what you thought than I did. Maybe I can redeem myself in the comments part of this.