Our Damaged Democracy

We the People Must Act

Joseph A. Califano

• Publisher: Atria Books
• Year: 2018
• ISBN:
  9781501144639
• Topic: Politik & Internationale Beziehungen
• Subtopic: Amerikanische Regierung

"A Washington insider draws on decades of experience to deliver a blistering critique of the state of American government" ( Kirkus Reviews ) in an authoritative scrutiny of the forces that run our society and a call to fix our democracy before it's too late. If you've been watching the news and worrying that our democracy no longer works, this book, "a cri de coeur from one of our wisest Americans" (Michael Beschloss, Presidential Historian), will help you understand why you're right. There is colossal concentration of power in the Presidency. Congress is crippled by partisanship and hostage to special interest money. The Supreme Court and many lower federal courts are riven by politics. Add politically fractured and fragile media, feckless campaign finance laws, rampant income and education inequality, and multicultural divisions, and it's no wonder our leaders can't agree on anything or muster a solid majority of Americans behind them. With decades at the top in government, law, and business, Joseph A. Califano, Jr. has the capacity to be party-neutral in his evaluation and the perspective to see the big picture of our democracy. Using revealing anecdotes featuring every modern president and actions of both parties, he makes the urgent case that while we do not need to agree on all aspects of politics, we do need to trust each other and be worthy of that trust. He shows how, as engaged citizens, we can bring back systems of government that promote fairness and protect our freedom. "It's hard to argue with [Califano's] analysis" ( The New York Times Book Review ) that the longer we wait to fix these problems, the more dangerous our situation will become.

PART I

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POTUS THE POWERFUL

1

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ENHANCING POTUS POWER

POTUS, as White House staffers and Washington insiders call the president of the United States, looms over the political and institutional hierarchies in the nation’s capital.

We have always been a Presidential Nation, and Washington works best when presidential leadership is strong, creative, and caring. But with the nation’s Congress politically pulverized and bureaucratically hog-tied and the Supreme Court ideologically split and politicized, the executive branch has become more like a giant among pesky pygmies than a first among three coequal branches of government.

Congress is composed of 535 individuals of differing political views, social values, racial and ethnic backgrounds, and religions, from districts and states with diverse economic interests. The federal judiciary is mired in procedural complexity, bogged down by a backlog of litigation, and led by a Supreme Court handing down razor-edged 5–4 decisions. Neither institution is a match for an agile, single-minded president.

The nominally independent states, counties, and cities are acting like supplicant subjects. They knock on the White House doors pleading for funds or for freedom from some executive branch regulation or mandate. The media—print, television, radio, social—feed the voracious appetite of their endless news cycle by dinging or doting on the president and his political and personal coterie. A variety of special interests—hefty financial contributors, lobbyists, and powerful right- and left-wing organizations—visit the West Wing to plead their case. Most presidents try to do the right thing in the national interest. But for all presidents it’s the right thing as they see it. Their vision is easily clouded by ideological commitment, political ambition, a vision of their place in history, and the human temptation and political need to accommodate their pals and patrons.

Whatever the campaigning candidate, Republican or Democrat, professes, those who win the presidency move to strengthen the power of the office. As a result, the occupant in the White House has come to tower over the legislative and judicial branches and often exercises powers that were once the constitutional prerogatives of those other two.

For decades our people have been sharply divided about presidential candidates; the roles of federal, state, and local governments; the knee-jerk positions of left- and right-wing ideologues; and the rapid multiculturalization of our population. The 2016 candidates Donald Trump and Hillary Clinton, with his lips curling and her eyes rolling, sometimes resembled cartoon characters in their exaggerated clashes on immigration, taxing the Wall Street rich, and a host of social issues. Americans so vehemently disagreed about them, and some of the positions each espoused, that many families couldn’t discuss politics among themselves for months after the election.

But there is one concern that Trumpites, Clintonites, Senators Ted Cruz and Bernie Sanders, and those in between or indifferent about politics should share. It is how one newly elected president after another moves to extend the reach and grasp of the office. Witnessing this, Democrats and Republicans, liberals and conservatives, the far left and far right, should reflect on the wisdom of Lord Acton’s wake-up call about concentrations of power. We should all heed Daniel Webster’s warning that “the contest, for all ages, has been to rescue Liberty from the grasp of executive power.”¹

• • •

A defining principle of political power that I learned serving in Robert McNamara’s Pentagon, LBJ’s White House, and Jimmy Carter’s cabinet was this: where one sits determines where one stands. No political disciples observe that bureaucratic axiom more faithfully than incumbent presidents.

In campaigning, presidential candidates typically condemn incumbents and predecessors for abusing their power, exceeding their authority as commander in chief, and playing trick or treaty with the Senate in making agreements with foreign powers. These Oval Office seekers attack incumbents for issuing executive orders that assume legislative powers reserved to Congress and writing regulations that go far beyond laws Congress has enacted. They promise to accept the judiciary’s interpretation of the Constitution and laws. They assure voters that if elected they will reverse or ignore their predecessor’s unconstitutional and unauthorized actions. Democrat or Republican, these candidates commit to defer to the power of Congress to legislate and appropriate funds.

Until they get elected.

Such campaigning has been common among presidential candidates throughout most of American history and especially since the development of the modern presidency under Franklin D. Roosevelt. Before his election to the presidency in 1964, Lyndon Johnson said that, unlike his opponent Barry Goldwater and the Republicans, “We are not about to send American boys nine or ten thousand miles away from home to do what Asian boys ought to be doing for themselves,” and “get tied down in a land war in Asia.”² During the 1980 presidential debates candidate Ronald Reagan lambasted President Carter for negotiating with terrorists to return hostages from Iran. “There will be no negotiation with terrorists of any kind,” Reagan assured voters in Cleveland in 1980.³ In office, President Johnson sent more than 500,000 Americans to fight in Vietnam and President Reagan pursued secret negotiations with terrorists to exchange weapons for hostages during the Iran-Contra affair.⁴

Candidate Trump blasted President Obama for abusing the use of executive orders. “The country wasn’t based on executive orders,” he said. “Right now, Obama goes around signing executive orders. . . . It’s a basic disaster. You can’t do it.”⁵ In his first hundred days in office, President Trump signed more executive orders than any of his postwar predecessors; these orders established restrictions on immigration, eased offshore drilling activities, and curbed enforcement of a law under which churches forfeit their tax-exempt status if they support political candidates.⁶

When signing laws passed by Congress, presidents often use the opportunity to make signing statements declaring their intention to ignore or amend provisions they oppose. In 1965, when Congress passed a law mandating 120-day notice prior to closing a military base, President Johnson didn’t dare ignore it. He vetoed the law claiming it infringed on his power as commander in chief. He worked us around the clock to convince Congress to reduce the notice period to 30 days.⁷ Today any president, Democrat or Republican, would simply ignore the 120-day congressional requirement, likely claiming in a signing statement that it infringed on his or her powers as the commander in chief.

When Ronald Reagan signed the 1986 amendments to the Safe Drinking Water Act, he said his administration would not follow its mandatory enforcement provisions because “prosecutorial discretion is an essential ingredient in the execution of laws [and] Congress cannot bind the Executive.”⁸ Every successive president has used signing statements at one time or another to indicate he had no intention of following a particular section in a law passed by Congress.

As a presidential candidate, Barack Obama attacked President George W. Bush’s use of signing statements to ignore laws he disagreed with. “He’s been saying,” Obama charged, “I can basically change what Congress passes by attaching a [signing statement] saying ‘I don’t agree with the part. I’m going to choose to interpret it [my way].’ ”⁹ Candidate Obama promised, “I will obey the Constitution of the United States. We’re not going to use signing statements as a way of doing an end run around Congress.”¹⁰ President Obama repeatedly used signing statements to nullify legislative provisions such as those involving the transfer of Guantánamo Bay prisoners, diplomatic initiatives with Israel, and protections for chaplains whose religious beliefs limited their ministry with respect to gays and lesbians.¹¹ President Trump in an August 2017 signing statement said that legislation sanctioning Russia encroached on the executive branch’s power in foreign affairs.¹²

Such exercises of presidential power are difficult to curb. Republican Darrell Issa of the House Foreign Affairs Committee, commenting on Obama’s determination to close the Guantánamo Bay prison in 2016, said, “There is little we can do if this president ignores the law in a timely fashion. Our process is to go to the court. The court is likely not to rule quickly. The fact is it is very hard to stop a president from doing something if he is willing to ignore the law and his oath.”¹³

As time passes during the presidential terms, those who hold the office tend to express their frustration with the limits on their power by assuming more power. In his first term Barack Obama repeatedly said that he could not “just suspend deportations through executive order . . . because there are laws on the books that Congress passed. . . . We’ve got three branches of government. Congress passes the law. The executive branch’s job is to enforce and implement those laws. And then the judiciary has to interpret the laws.”¹⁴ In his second term, he suspended the deportation of millions of undocumented aliens by executive action. The federal court of appeals for the Fifth Circuit held that action unconstitutional, a decision the Supreme Court upheld by a 4–4 vote.¹⁵

The Wall Street Journal and conservatives singled out President Obama for his “contempt for institutions he doesn’t run” and “unilateral executive action.”¹⁶ The New York Times and the Washington Post have leveled similar criticisms at Donald Trump, but in fact Obama’s and Trump’s presidencies represent a continuum of presidential conduct.¹⁷ Whatever his campaign rhetoric, president after president has marched almost in lockstep to enhance the power of the Oval Office. This steady trek probably began the day after George Washington announced that he would not seek a third term, establishing an informal rule of term limits that lasted until the days of Franklin Delano Roosevelt. FDR was the first president to continue in office for more than two terms. The end of an extraordinary four-term presidency marked the last time the legislature stood up to the president as a coequal branch by passing a constitutional amendment, quickly ratified by the states, to limit future presidents to two terms in office.

2

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POTUS THE COMMANDER IN CHIEF

Perhaps the most dramatic assumption of power by presidents has been in their role as commander in chief. Most notably, and with remarkable congressional acquiescence, presidents have sent American military forces into combat since the middle of the last century without a declaration of war.

How many Americans remember, if they ever knew, that Article I, section 8, of the Constitution provides that “the Congress . . . shall have the power . . . To declare War.” The Constitution grants that power exclusively to Congress. As Alexander Hamilton wrote in the Federalist no. 69:

The President is to be commander-in-chief of the Army and Navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces . . . while that [authority] of the British king extends to the DECLARING of war and to the RAISING a...