Saturday, December 21, 2013

Spitzer Compares Bush and Obama

Robert J. Spitzer (SUNY Cortland) recently posted perhaps the most recent comparison of assertions of executive power in the Bush and Obama presidencies coming out of the political science world: Comparing the Constitutional Presidencies of George W. Bush and Barack Obama: War Powers, Signing Statements, Vetoes.  As the title suggests, Spitzer compares the presidencies just in three dimensions.  But his piece also briefly summarizes the political science literature comparing other dimensions.  Here's Spitzer . . .

On war powers:

Nevertheless, in constitutional terms, Bush had the congressional authorization he needed [for the Iraq war]; Obama did not [for Libya].  Ironically, the grotesque scale of, and web of deception surrounding, the Iraqi war suggest that its precedential value for future presidents may be limited, whereas the presidential consequences of Obama's actions--another instance of an intervention without congressional approval, and the first instance of violation of the 60 day limit [in the War Powers Act]--are more likely to encourage future presidents tempted to engage in unilateral military actions.

On signing statements:

Presidents surely have interpretive latitude, especially when legislative language is vague or ambiguous, and therefore open to interpretation.  This is nothing new. . . .  What presidents may not do, Bush's unitary executive theory notwithstanding, is to rewrite legislation at the point at which a bill is presented for signature through signing statement in what some have called a de facto item veto.  As James Pfiffner concluded, "Bush's systematic and expansive use of signing statements constitutes a direct threat to the separation of powers system in the United States."  Obama has, to date, skirted, if not walked away from, this ambition, especially after the criticism of his 2009 signing statement of P.L 111-8 [directing that legislation that calls for congressional committee approval of spending decisions by federal agencies is to be treated as "advisory" and "not . . . dependent" on committee approval].  Contrary to the claim of some that Obama has assumed the mantle of a unitary president, his signing statement use to date has been comparable to, or less than that of any predecessor from Reagan on.  And Bush II's signing statement use continues to keep him in a class by himself.

On protective return pocket vetoes:

Unlike the other powers discussed in this paper, the Bush and Obama protective returns were nearly identical in form, and both appeared to arise from the bowels of the "deep structure" of the executive bureaucracy rather than from top political aides seeking to expand executive authority.  Here is one of the most important, if underappreciated, aspects of executive power accretion: secular bureaucratic power incrementalism.  A day may come where a constitutional challenge or political flare-up may drag the protective return pocket veto into the intense lights of the legal or political stage, and where a full airing, and final disposition, of this arcane executive power grab may be vetted and resolved.  Absent such a moment, however, the executive's "deep structure" will continue to advance the protective return for every subsequent chief executive.

Executive Authority, News, Scholarship, Separation of Powers, War Powers | Permalink

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