The Semisovereign Presidency

The Bush Administration's Strategy For Governing Without Congress

Charles Tiefer

• Publisher: Taylor & Francis
• Year: 2019
• Print ISBN: 9780367295745
• eBook ISBN: 9781000305425
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

In The Semi-Sovereign Presidency, Capitol Hill insider Charles Tiefer shows how George Bush used the executive office to circumvent Congress, thwart official Washington, and confound the public will. Even Bush partisans may be surprised to discover the president's unprecedented use of executive signing statements to modify or, in effect, abrogate acts of Congress—even popular, bipartisan efforts like the 1991 Civil Rights Act; his commissioning of the "Quayle Council" to derail regulatory legislation such as the Clean Air Act of 1990; and his catapulting of the National Security Council into foreign policy prominence outstripping that of the Departments of Defense and State. As Tiefer details for the first time here, "Iraqgate, " the hidden courtship of Saddam Hussein prior to the Gulf War, is perhaps the most dramatic example of Bush's executive fiat—a relationship conducted by way of Bush National Security Directives and similarly obscured from the public eye. Bush chose an essentially negative approach to governing partly because he was unwilling to engage Congress on matters of principle head to head and was equally unwilling to make his principles public—addressing himself to the nation as his predecessor had so effectively done. But, as Tiefer persuasively argues, it was Bush's belief in the sovereignty of executive power—an almost monarchical conception of the presidency—that was his primary modus operandi and ultimately his downfall. Bush and his approach to power are interesting not just to students and scholars of the presidency but to all citizens concerned about the country and its leadership.

1
An Overview of the Bush Presidency's Strategy

The Strategy Described in the Princeton Address

In May 1991, at the very peak of his presidency, President Bush gave an address at Princeton University regarding the separation of powers. The warm, if not exultant, afterglow of the Persian Gulf War bathed the president in an aura of success and popular support. His public approval ratings hovered around a record level of 90 percent. Potential Democratic nominees for 1992 deserted the field rather than face him. His reelection seemed a foregone conclusion. Congress avoided confrontation. This was the moment—as it turned out, a unique one—when the president felt secure enough to provide to the nation an exposition and justification of his approach to the separation of powers.

In a sentence, President Bush's strategy consisted of having White House staffs, free from the accountability traditionally imposed on federal officers, employ novel mechanisms of power to trump the laws enacted by Congress. These mechanisms included signing statements, Quayle Council reviews, and National Security Directives and Committees. This approach satisfied the Bush Administration's aversion, for reasons both of political situation and personal style, to working with Congress or otherwise engaging in a struggle for public opinion. Where his predecessor, President Reagan, had delighted in public fighting with Congress to move his large-scale domestic programs or to let his Cabinet officers pursue missions that were comparatively open (until Iran-contra) in their ideological nature, President Bush's approach would avoid that democratic struggle. The scale of his actions might be smaller than a president with a strong mandate and a willingness to govern with Congress (at least domestically), but he would perform the action as a matter of personal rule, without the checks and balances involved in governing with Congress. He would achieve a semi-sovereign presidency.

This approach did not make a complete break with what prior postwar presidents had done. Two hallmarks of the postwar era, the Cold War and the divided government, had both contributed previously to an increased size and role for White House staff. Sherman Adams, McGeorge Bundy, Henry Kissinger, Hamilton Jordan, and Donald Regan all had potent roles. Strong and active presidents often used strong and active White House staffs in managing their efforts. To this postwar foundation, what President Bush brought was not greater activism than his predecessors, but the necessities born of his particular political situation and personal style. Other presidents, from Truman to Reagan, delighted in public arena combat to express activism. Their public appeals and legislative struggles balanced the internal workings of White House staffs with a large measure of domestic issue resolution in accountable channels. President Bush, because of his choice to avoid public arena combat, pushed further the tendency in the exercise of powers toward internal and unaccountable mechanisms.

President Bush's Princeton Address of May 1991 expounds this approach, As his jumping-off point in the Princeton Address for viewing the constitutional system, President Bush started with expression of blunt antagonism toward the flawed legislative branch. "Although our founders never envisioned a Congress that would churn out hundreds of thousands of pages worth of reports and hearings and documents and laws every year, they did understand that legislators would try to accumulate power," President Bush said. "[A] president... has an obligation to 'preserve, protect and defend' a 200-year-old system of constitutional government. The most common challenge to presidential powers comes from a predictable source, represented here by several able members of the United States Congress." Congress was the villain of the piece. His administration's approach would depict Congress as having taken on an excessive role and thereby having created a corresponding need to "protect" the presidency.

The president further described his frustration as follows: "Congress has also taken aggressive action against specific presidential powers.... It sometimes tries to manage Executive Branch—micromanage the Executive Branch—by writing too-specific directions for carrying out a particular law." Laws thus had the flaws of "micromanagement" and required presidential corrections. Previously, presidents had specific constitutional means for dealing within the system of checks and balances with laws they disliked. Before enactment, presidents could make public appeals over Congress, they could lobby about or bargain over proposed bills, and ultimately they could use the veto. After enactment, they could appoint officers willing, like President Reagan's Cabinet choices, to interpret the laws the president's way and to fight the ensuing oversight. President Reagan did have lapses from use of efforts within the system—notably, Iran-contra—but these ultimately proved to be criminal and self-destructive.

President Bush had a different response in mind. In the Princeton Address, President Bush explained his chief tool for response to Congress: "[On] many occasions during my presidency, I have stated that statutory provisions violating the Constitution have no binding legal force" (emphasis added). He referred to his tool against bills that, unlike his record level of veto threats, operated outside the traditional system: Rather than to exercise his constitutional power of objection, these statements declared about the newly enacted law that particular provisions had "no binding legal force." Presidents prior to 1988 had used signing statements, but President Bush proclaimed and exercised the power of using them to a far greater extent and with far more potent tactics than anyone before. No tool more conveniently served the desire of this president to avoid a public arena fight for a legislative program while acting with freedom from constraint by laws.

His White House counsel would declare provisions violative of the Constitution in any of a vast array of laws on issues from trade to affirmative action. The White House counsel would also find a host of laws sufficiently open to constitutional question to justify presidential revision if not presidential voiding. At first President Bush issued scores and ultimately hundreds of statements declaring provisions in acts of Congress invalid or altering them. Taken overall, the 1989-1992 outpouring of signing statements that purported to strike down or revise new laws staked a major presidential claim to personal power and one that augmented and magnified other claims as part of the overall strategy.

As to congressional oversight, President Bush explained in the Princeton Address that "[o]versight, when properly exercised, helps keep the executive accountable. But when it proliferates wildly, it can confuse the public and make it more difficult for Congress and the president to do their jobs properly." What is the point at which the president must block congressional oversight so as not to "confuse the public" and make doing his job "more difficult"?

President Bush offered his view as follows: "It is the president who is responsible for guiding and directing the nation's foreign policy [and] performing this duty with 'secrecy and dispatch', when necessary." Here he used a famous quote from one of the Federalist Papers to claim more than its author, John Jay, actually said,¹ but what mattered was the announced plan of action resulting from this claim. President Bush gave as caveats that he would not "keep Congress unnecessarily in the dark" and only when he found it "necessary" would he act with "secrecy." These caveats, superficially expressed as disclaimers of his exercise of power, unmistakably asserted a capability to decide when to make secret law and to shrug off unwanted oversight.

Such a philosophy took concrete form in his use of National Security Directives and the related system of unaccountable National Security Council (NSC) staff power. No matter illustrates this better than the administration's embrace of Saddam Hussein in 1989 and 1990, before the invasion of Kuwait. The Cold War's special requirements had laid the foundation for his administration's use of this mechanism, but now that mechanism had outlasted its original purposes. As will be seen, the courtship of Saddam Hussein followed the National Security Directive on Iraq policy, NSD-26, issued in late 1989, and the NSC Committee meetings of spring 1990 to implement it. The NSD established the policy without the need for engaging in debate with the public and Congress, as it was a mechanism shielded from oversight. When this courtship turned out to be the most embarrassing and questionable secret policy of Bush's entire term, the use of these NSC channels still served to block and delay the ensuing congressional investigations in 1991 and 1992.

Even the most purely domestic affairs involved novel power claims for the Bush White House outside the system of checks and balances. As President Bush added in his Princeton Address, "[t]he president's view of the whole ground includes a second responsibility—shaping the nation's domestic agenda." President Bush alluded only indirectly in this address to the vice president's role: "The president and vice president are the only officials elected to serve the entire nation." In practice, the president's methods on domestic policy involved Vice President Quayle and his own personal White House staff under the rubric of the Council on Competitiveness, known (because the vice president chaired it) as the Quayle Council.

Vice President Quayle provided the detailed justification for his role, about which the president's Princeton Address only hinted. In his own public statement in 1991, the vice president criticized the Cabinet departments and agencies, even though the president's own appointees headed them, as an excessive "federal bureaucracy." Vice President Quayle noted his "grandfather ['s]... [1971] editorial... titled, 'Will the Federal Bureaucracy Destroy Individual Freedom in America?"' He said, "So far, the answer to my grandfather's question is 'no.'" Echoing President Bush's philosophy about their special status, Vice President Quayle explained that "[t]his somewhat esoteric battle goes to the heart of democracy itself. The President and I... are elected by the people," whereas "[t]he iron triangle—special-interest groups, bureaucrats, and Congressional staff—are elected by nobody."

Accordingly, the vice president listed a number of areas, chiefly environment, health, and safety regulation, where his council's staff had effectively taken control of the law in this "somewhat esoteric battle" with those "bureaucrats." This council's staff emerged in the end as the supreme tool for White House control of the execution of regulatory laws by Cabinet departments. As the 1992 election approached and President Bush's capability for winning in public arena struggles dwindled, he formally imposed on all his Cabinet departments and agencies a moratorium supervised by the Quayle Council and the White House counsel.

Where did this strategy come from? How new was it? How much of it was the culmination of postwar presidential tendencies? How far did it deviate from the Constitution's plan for the presidency and from the historic practice from the time of the Framers to the present? How far did it transgress the rules and doctrines that distinguish claims of sovereign power from those within the system of checks and balances? The next chapter addresses these questions in a fuller perspective of American constitutional history. At this point it is appropriate to look at the Bush approach's roots in the president's political situation and personal style and then its development chronologically during President Bush's term.

Origins of the Strategy

The particular origins of the strategy fall into two general categories: political forces surrounding the 1988 election and personal style, including previous experience. Each deserves separate attention.

Political Forces

George Bush came to the White House as perhaps the most extreme example in the postwar era of a president elected without a mandate. The post-World War II era has consisted largely of divided government, typically of a Republican president and a Democratic Congress. In 1988, though, the condition had reached a particularly intense point. Vice President Bush had watched the Democratic Party take a majority of the Senate in the 1986 election and retain a working Democratic majority in the House. After that election (i.e., in 1987 and 1988), the two chambers did not have a Democratic majority that was merely nominal in nature, but a solid majority that was at odds in legislative philosophy with the administration. Thus Vice President Bush had watched in 1987 and 1988 as the Democratic Congress enacted a whole legislative agenda largely against the desire of his predecessor: legislation on welfare, trade, arms control, aid to education, civil rights in housing, and renewal of the independent counsel statute.²

Then, President Bush had watched the Democratic Congress receive clear support in the 1988 election. Democrats won nineteen of the thirty-three Senate races, the fourth successive gain or draw by Senate Democrats since 1980. This created a 55-45 Democratic margin in the chamber, which neared their high pre-Reagan numbers. A small addition to the Democratic seats in the House created a large 260-175 Democratic margin.

In contrast, President Bush's own election victory failed, because of how he campaigned, to arm him to claim a mandate. He did receive 53 percent of the popular vote, 6 percentage points more than his opponent. Although this gave him a respectable showing, he had rim behind the winners of the House races in 379 of the 435 congressional districts. Even in those few areas where he ran ahead of the winners, he had no particular coattails. President Bush had not staked his rise or governance on popular agreement with any clear policy program. As Congressional Quarterly put it, "[h]is inability to carry others into office may be partly due to his message, which was essentially a call to 'stay the course.'"³

Candidate Bush had chosen to back away from the firm ideology of the Reagan Administration by promising to be the "environmental president" and to run a "kinder, gentler" administration yet he embodied contradictions even on these issues by being a pro-business candidate. His choice of symbolic issues, notably expressed in the "Willie Horton" advertisement, the criticism of the American Civil Liberties Union (ACLU), and the flag enthusiasm, aroused racial divisions or nationalistic sentiments without signaling any kind of concrete legislative program.

One political scientist, to express the universal perception at the time of lack of a mandate or program, collected these contemporary headlines from a wide spectrum of publications:⁴

Rough Road: Election Results Show Lack of a Consensus About President's Role (Wall Street Journal, 9 November 1988)

Challenges for Bush: An Uncertain Agenda and a Wary Congress (New York Times, 10 November 1988)

President-elect Starts Move Toward a "Bush Revolution" but Failure to Bolster GOP Position in Congress Will Make It Harder to Lead (Christian Science Monitor, 10 November 1988)

What to Expect: The Outlook for the Bush Years: Reaganism Without Ideology, Persistence Without Brilliance—and Serious Trouble with Congress (Time, 21 November 1988)

The Tough Tasks Ahead: George Bush Wins a Decisive Victory and a Personal Vindication, but No Clear Mandate (Newsweek, 21 November 1988)

A famous Doonesbury cartoon just before Bush's inaugural had him saying on his first day in office: "So far today, I've said the Pledge and I haven't furloughed any murderers. I've delivered on my entire mandate, and it isn't even lunch yet." President Bush proposed to Congress in the early months of his term what a political scientist described as a "modest" legislative agenda: "He proposed some modest new education programs, an increase in funding for the war on drugs, child-care legislation and a rewrite of the Clean Air Act, which were on Congress's agenda in any case, plus legislation to bail out the savings-and-loan insurance fund and clean up nuclear weapons plants."⁵ Congressional Quarterly Almanac's computations of the level of support in Congress for the president produced a result for President Bush's first year fitting this starting point: "George Bush fared worse in Congress than any other first-year president elected in the postwar era," with support 11 percent less than the previous low point.⁶ Thus the president started his term with a strongly opposed Congress, no mandate, and not ...

Table of contents

• Cover
• Half Title
• Series Page
• Title
• Copyright
• Contents
• Preface
• Acknowledgments
• 1 AN OVERVIEW OF THE BUSH PRESIDENCY'S STRATEGY
• 2 FROM 1789 TO 1988: PRESIDENT AND LAW UNTIL THE BUSH ADMINISTRATION
• 3 STRIKING DOWN OR REVISING LAWS: SIGNING STATEMENTS IN THE BUSH PRESIDENCY
• 4 THE QUAYLE COUNCIL: "NO FINGERPRINTS" ON REGULATION
• 5 NATIONAL SECURITY DIRECTIVES AND THE COVER-UP OF THE COURTSHIP OF SADDAM HUSSEIN
• 6 THE PERSIAN GULF WAR AUTHORIZATION
• 7 CONCLUSION: TEMPORARY RESPITE
• Notes
• About the Book and Author
• Index