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Cheney and Presidential Power

By Taylor Marvin

Jonathan Bernstein has a very good piece up arguing that Dick Cheney not only was an incompetent vice president, but blowback against the executive branch overreach he orchestrated has actually reduced Presidential power:

“Dick Cheney is a good example of all of this exactly because his prior reputation would never have led people to guess that he’d make such a habit of botching things. And yet, botch things he did, over and over. Not because he didn’t understand policy, but because he — and by extension, George W. Bush — refused to accept the limitations on the presidency imposed by the Constitutional system of institutions. And as Cheney shows and as Goldsmith says, the consequences are predictable: poor policy execution, followed by a loss of presidential power.”

I agree with a lot of this. Despite Cheney’s extensive experience going into the Bush administration he wasn’t able to accomplish a lot of what he wanted, and Bernsteins’ look at the structural reasons for Bush administration incompetence is convincing. However, I’m just not convinced by the assumption that executive power has actually been reduced since 2008. It’s true that the Bush administration was on the receiving end of a lot of public outcry over its often flagrant disregard for restrictions on presidential power. But this never translated into actual effective legislative opposition for these policies. Warrantless NSA wiretapping and torture were all unpopular at one point or another, but this doesn’t change the fact that there’s a pervasive lack of congressional (and by extension electoral) interest in national security and civil liberties issues.

I think its more accurate look at a relative reduction in presidential power in post-2008 as due to the Obama administration’s choices rather than a structural reduction in presidential power; our perceptions of executive power are diminished by the Obama administration’s abandonment of select examples of highly visible executive branch excesses rather than any kind of permanent change.¬† Yes, the Obama administration has exercised less presidential power than their predecessors. But this has been a choice — nothing’s forced them to roll back executive authority, and the Obama administration has continued to exercise presidential power that’s still extremely high by historical standards — the kill order on US citizen Anwar al-Awlaki, for example, and the recent expansion of the US secret war in East Africa. All of these decisions have been largely uncontroversial — there just isn’t a mechanism in American electoral politics to punish most executive branch oversteps. As long as most voters perceive arguably unconstitutional executive programs as targeting only a minority of Americans they won’t demand change. For programs that target foreigners this electoral pressure drops to almost nothing.

Ultimately there’s no reason to suppose the small reduction in executive power under Obama will be permanent. The Obama administration has elected to continue most of its predecessor’s growth of executive authority, likely ensuring that more presidential power, not less, the future normal. This logic is especially evident in the Obama administration’s response to Bush-era torture. By declining completely to censure the Bush administration’s culture of torture Obama has likely ensure that illegal torture of terror suspects will continue under the next Republican administration, an extension of executive power Romney’s explicitly stated he supports (to his credit, Ron Paul’s on the record rejecting torture in all circumstances). Berstein’s right that that Vice President Cheney’s oversteps were bad for public perceptions executive power, but in reality voters don’t really care. In America the executive branch gets to do what it wants.

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