The PoliBlog

The Collective
Tuesday, April 3, 2024
By Dr. Steven Taylor

Writes Rich Lowry at The Corner:

In a brief press availability in front of his campaign bus, I asked Rudy whether he was saying Bush could veto the supplemental and, in the absence of a deal with Congress, fund the troops in Iraq under his own authority. “If he vetoes it, he’s going to have to find a way to support the troops,” Rudy said. “They have given him the authorization to fight the war,” and “Bush has the power to redirect the money and time to work something out” with Congress. The last bit suggests that maybe Rudy is thinking in terms of only the next few weeks and not making a broader claim about presidential authority (although he kept on saying “inherent authority” over and over).

But it wasn’t quite clear what he meant, and his statements could be seized on by his critics to argue that he has a dangerously out-sized view of presidential powers.

No kidding.

Indeed, of the various things that the Bush presidency should have brought to fore in recent years is a sensitivity to suggestions of “inherent” executive powers by candidates. Giuliani appears to be affirming the current administration’s view that that AUMF (the Authorization to Use Military Force–see here, here and here) somehow gives the President an open-ended amount of power in pursuing military policy. This is simply not the case and is a dangerous notion.

While it is true that there is some room for a president to move around funds appropriated for the military to extend, temporarily, a deployment, if the Congress can muster the votes to force an end to funding, the point does come where the President has to acquiesce. To suggest otherwise is to suggest authoritarian powers that do not belong to the President. He cannot unilaterally fund a policy that Congress has told him he cannot fund–certainly not indefinitely. Congress holds budgetary powers, and in the face of direct Congressional opposition he would eventually have to capitulate. Note: for Congress to fully force such a move they would have to either muster a veto-proof majority or somehow get the President to sign off on a law that defunded the war.

Of course, this remains an academic debate, as the Congress does not, at the moment, have the votes needed to override likely vetoes on this topic. (Which is why I argued before that I didn’t think it was especially likely that Congress can force Bush’s hand on this matter. I will admit, in regards to the linked post, that the Congress is getting closer, more quickly, than I thought would be the case. However, I still find it unlikely that they will be able to pass the needed legislation. I also think that the White House is currently being overly dramatic about how quickly they will run out of money for Iraq. However, the practical politics of defunding the war isn’t my main point here, but rather Giuliani’s view of presidential powers is).

Meanwhile, another post at The Corner (this one by Ramesh Ponnuru) notes Romney and Giuliani’s responses to questions from CATO’s Ed Crane on the arrest of US citizens sans review:

. Crane asked if Romney believed the president should have the authority to arrest U.S. citizens with no review. Romney said he would want to hear the pros and cons from smart lawyers before he made up his mind. Crane said that he had asked Giuliani the same question a few weeks ago. The mayor said that he would want to use this authority infrequently.

I’m with Hilzoy of Obsidian Wings on this one:

Normally, countries in which the head of state has this power are called “dictatorships”. In dictatorships, the head of state can decide to throw someone in jail, without charges and without recourse, and there is nothing that anyone can do about it. One of the most fundamental bases for our claim to be a free country is the fact that we do not grant the President, or anyone else, the power to simply toss people in jail and throw away the key on nothing more than their own say-so.

Update: As a point of clarification, while I am not asserting that Giuliani is seeking dictatorship, the bottom line is that asserting the right of the president to, even in limited cases, simply arrest and detain people on his own personal authority simply because he thinks its a good idea is a dictatorial act. That is a limited one does not mitigate against the authoritarian nature of such a process. (End Update)

So, for those keeping score at home: presidents having arbitrary arrest powers is a bad thing, even if used sparingly (which is why the Jose Padilla affair is so troubling).

Now, given that this is a third-hand reporting of the quote, I suppose something could have gotten lost in translation.

The motivation for all of these types of positions is clearly terrorism–and these types of policy assertions about executive power hightlights why I find the generic idea that we are allowing policy to be too driven by fear to be an accurate one.

h/t: LGM

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  • pt
    1. I don’t call it dictatorsip, I call it Great Britain, which joined it’s Continental neighbors in allowing administrative detentions in the late 1980s, but whatever. The Secret Service has long had the ability to arrest anyone for being near the President, at it’s discretion. The INS and now DHS have long had that power with regards to aliens, checked generally only by executive adminsitrative “courts” and the vanishingly rare federal court appeal. (Better by far in many cases to call one’s Congressman.)

      These powers are limited largely by jurisdiction and the hassle of carrying them out. Nevertheless, I do not smell the proverbial whiff of grapeshot or bite of cordite in the air, or consider myself to be in a dictatorship when I visit France, though Judges can double as prosecutors and police can hold people for purely administrative and discretionary reasons.

      Or am I missing your point? Is it better when only judges have such powers but uniquely bad when the executive does?

      Badck to Rudy though. Yes, his statemendt does sound extreme. Nevertheless, crying dictatorship seems to be overstating your case.

      Comment by Honza P — Tuesday, April 3, 2024 @ 4:09 pm

    2. Liberties are far more limited in the UK than the US, yes.

      And, not surprisingly, aliens don’t have the same rights as citizens.

      I am not “crying” dictatorship, but agreeing with the notion that if we do want an executive who can arbitrarily imprison people on his/her whim then we allow authoritarian elements to creep into our system.

      The important part of that quote is:

      One of the most fundamental bases for our claim to be a free country is the fact that we do not grant the President, or anyone else, the power to simply toss people in jail and throw away the key on nothing more than their own say-so.

      Quite so.

      While trotting out the word “dictatorship” may bit a jarring, it is perhaps worthwhile to consider some of the things that have been seeping into our politics in the past five plus years.

      Sometimes liberties are lost not with a bang, but with a whimper.

      At a minimum I tire of assertions of broad executive powers by present and want-to-be executives, and feel that they ought to be noted.

      Montesquieu noted that tyranny (another word for dictatorship) emerges when one person, or group of persons hold executive, legislative and judicial power–which is what happens when a president can arbitrarily detain someone without review. It may be dictatorship in the micro, but dictatorship it is.

      Comment by Dr. Steven Taylor — Tuesday, April 3, 2024 @ 4:18 pm

    3. “Liberties are far more limited in the UK than the US…”

      Are they??? I’ve seen shocking things happening in the US that I would consider impossible in the UK. It’s true I haven’t been back there for a few years now… Still, I am surprised.

      Comment by james — Tuesday, April 3, 2024 @ 5:23 pm

    4. It is the case that given the constitutional nature of the Uk and the US that certain liberties, for example free speech and press, are more easily constrained in the UK is ways that would not be constitutional in the US.

      The supremacy of Parliament and the lack of a written bill of rights does mean more malleability in such rights.

      This is what I was referring to and engaged in some over-statement. Still, my beef was with Honza and Rudy, not the UK :)

      Comment by Dr. Steven Taylor — Tuesday, April 3, 2024 @ 9:00 pm

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