Mickey Edwards on the Constitution and the Presidency

An outstanding program was presented by former U.S. Representative Mickey Edwards, (R-OK), January 7, 2008, at The Washington Center for Internships and Academic Seminars and broadcast on C-SPAN. Edwards' lecture focused on the U.S.Constitution and the current presidential races.
Mickey Edwards is a Constitutional scholar and journalist who wrote a yet to be released book, "Reclaiming Conservatism: How a Great American Political Movement Got Lost--And How It Can Find Its Way Back." Currently a Vice President at the Aspen Institute and on the faculty at Princeton, Edwards served as a Republican U.S. Representative from Oklahoma from 977-1993. He was on the Appropriations Committee and in the Republican leadership.
I took four pages of notes during the broadcast which I am presenting here in essay form, as I have in the past with congressional hearings. I paraphrase Edwards when I did not get exact quotes. I have also developed a number of links that relate to the material Edwards presented that lend standing to his points. And I have rearranged his points for flow and clarity. I have tried for as much accuracy as I can, because he presented important material in a brilliant manner. He begins with this:
“American Exceptionalism” is illustrated in our constitution. It really began 11 years after America declared its independence in 1776. No other country had tried this before. The Constitution is designed to prevent dictatorship. Henry V was a dictator.
Edwards quoted the journalist Dana Milbank on the idea of "head of government vs. head of state. Our president is the head of state, but not the head of government. Our president heads only one of the three co-equal branches of government. The Kenneth Branagh movie, Henry V had an episode illustrating why the founding fathers decided that the United States would not be a monarchy: In the film, a friend of the King’s stole something during a battle. This was against a royal decree and punishable by execution, which was carried out. In this system the King and the elites decide; the people have no say. All the decisions come through kingly decree.
This is the way our founding fathers did it: We said the people would be in charge of their own destiny through their representatives. In the American system the people decide whether to go to war; they make spending and taxing decisions through their elected representatives. The Bush presidency is absolutely unprecedented. He declares he is “the decider, the chooser.” With Presidential signing statements Bush says, “I have the right to determine whether the law is binding on me. Regarding torture, for example, I will determine whether the law is binding on me or not.”
Bush made 1100 signing statements, more than all the former presidents combined. Edwards testified in a House Judiciary Committee hearing on the presidential use of signing statements to circumvent the law. Edwards served on an American Bar Association Task Force (that included a lot of Republicans) studying this question. It found that such signing statements violate the constitution: Article One, Section Seven says the president can do one of two things with a law passed by Congress. He can sign it into law or not sign it (a veto). It takes two-thirds of both houses of Congress to overturn a veto. The President does not have a constitutional option to sign something into law and then ignore it.
Unitary Executive Theory means that Bush does not feel bound to follow the law. The president claims that officials work for the president, and are not bound to obey Congress. The General Accounting Office took a look at what happened to the 2006 Appropriations bill. It found that fully 1/3 of Congressional directives had been ignored by executive agencies. Bush said I can decide. He decided they did not need to go to court to conduct surveillances, and that some people were not entitled to habeas corpus protections.
Regarding presidential executive orders – Edwards feels that, "These are perfectly fine when confined to the executive branch. Things like secrecy and privacy are justified as long as they do not intrude into the judicial or legislative branches, or on the people.
Regarding executive privilege – It is OK. But there are limits to it. For example, Harriet Myers was subpoenaed to come before a congressional hearing and testify about certain communications within the Justice Department. She ignored the subpoena, citing executive privilege. However, the President was never involved in the communication under question. The claim was made that executive privilege extends to everyone in the executive branch – all who are working under the president - not just to communications between the president and his subordinates.
The rule of law and the Judicial Branch – What happens when the President will not obey the law and Congress tries to go to court to make the President follow the law? What is our recourse? The problem is that the courts make access so difficult. The issue is that the Supreme Court and the other Federal courts have Constitutional rules of “standing,” entitlement to bring suit in that court to settle “cases and controversies.” When Edwards was in Congress he and a number of other legislators wanted to sue President Carter in “Edwards v. Carter.” They lost because the courts said they did not have standing. They had not been personally injured. We do not know whether we have been wire-tapped, for instance.
And the courts have twice not upheld the line-item veto for a president.
The President has no power not to implement any of the laws. He has no power to violate any law that he has signed. In the Jackson Supreme Court decision, it said that when Congress speaks on an issue, presidential power is then at its lowest ebb. The three branches are equal.
So, if going to court is not practical, what can a Congress, that does not have “standing,” do to force a President to follow the law? Edwards’ suggestion is that Congress use the power of the purse.It would go something like this: Congress could say, “We will cut $25 million out of the office of the Secretary of the Interior. Or we will not fund the office budgets of three such departments. And we will begin to issue a number of subpoenas, and hold a number of hearings."
Congress has enormous powers that they do not use effectively. Edwards declared that “this Congress valued loyalty more than the Constitution. The powers of Congress are an obligation imposed on the members of Congress to fulfill. It is their responsibility to exercise it under the Constitution."
How did we get where we are today? Edwards said, “We have lost track of what our system is and why it is different than what went before.” We have forgotten that the President is not the head of government. The Constitution was designed to keep the power in the hands of the people, through their elected representatives. For example look at Congressional earmarks. Congress is to decide on spending, as opposed to letting the Executive branch decide, OMB, for example.
We are too ignorant of our system of government. Students have not been taught, and the press does not point out such things.
What about Iraq? The war was justified under false claims. It was called a” preemptive” war. But that is when we go to war because someone is presenting an active threat to the U.S. It was actually a”preventive” war. That is when we go to war against someone who may become a threat. Edwards said that as he has traveled in the Middle East, he learned that there is almost universal anger at the U.S. for the invasion of Iraq. The leaders were opposed to us going in; but now these same leaders are against our arbitrarily leaving prematurely.
The 2008 presidential election -- Regarding the current criticism of Barack Obama’s “vision over specifics:” Edwards says, “Hooray for him.”
Charlie Savage of the Boston Globe was the one who discovered how widespread the Bush use of presidential signing statements is [and won the Pulitzer for it]. In his recent article he asked all the current presidential candidates what they would do regarding signing statements.
People need to ask the current candidates this question: “Where do you understand the limits of your powers to be?”
Some will say that the current threats mean that “We need a strong leader.” Professor Richard Neustadt says that such strength is embodied in a power to persuade, the power to stir the people.
Today is actually not an unprecedented threat for the U.S. In 1776 if Britain and France had combined forces against America we could have easily been defeated. In the face of even that possibility, the founding fathers decided we would not have a monarch. The other point is that in a time of unprecedented threat, isn’t there a risk in having only one person be the decider? We need more heads than just one. What if that one is of sub-par intelligence?
The U.S. needs to defend itself, of course. And we may even need to curtail liberties for a short time. But that is a decision to be made by the representatives of the people. We said yes back in the ‘70’s, but that such surveillance can only be done if the executive branch goes before a court to get the authority.
When asked who among the current candidates would be the strongest, Edwards first said, “none of the above.” He also said, however, that we will have plenty of opportunity to evaluate people over time. He then added that he would take a lot of heat for saying it, but would have to chose Hillary Clinton. Edwards likened some candidates to Henry V, including Rudy Giuliani “and perhaps McCain.”
He said that “reaching across the political aisle would be essential,” naming Obama, McCain or Huckabee as the strongest in that area. Edwards continued saying that the next president just cannot insist on going it alone. He or she will have to build support.The President can have a big influence of members of Congress. The President should meet regularly with the leadership of Congress before coming out with any program. Edwards said the Bush tried only to reach out to his Republican base, and that he actually does not know who that is. He also pointed out that “he has no problem trying to get Middle East leaders such as Olmert and Abbas to shake hands, but would not think of doing the same with Nancy Pelosi and John Boehner.”
Mickey Edwards found out to reach across the political aisle to me, a Progressive Democrat. Don't we wish there were more like him?
View my current slide show about the Bush years, "Millennium," at the bottom of this column.
(Cross-posted at The Reaction.)
My “creativity and dreaming” post today at Making Good Mondays is about women and their voices.
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