The Presidential Candidates' Views on Executive Power

A few months ago, it occurred to me that it would be useful to try to get all of the 2008 presidential candidates to state on the record whether they agree with the various controversial executive power claims advanced by the Bush administration. For instance, as president would they consider themselves to be bound by FISA? Would they consider themselves to be bound by treaties like the Geneva Conventions? Can the president indefinitely detain U.S. citizens as enemy combatants? What is the proper role of the signing statement? When can the president unilaterally authorize military action?

I actually went as far as starting up an email dialogue with a few prominent left-leaning bloggers regarding the feasibility of getting the candidates to respond to such a questionnaire. As is often the case, however, my day job intervened and I never got around to following through with it.

Fortunately, Charlie Savage of the Boston Globe not only had the same idea, he had the connections, influence, and persistence to see it through. The Globe submitted exactly the sort of questionnaire I had envisioned to all of the presidential candidates. Nine of them completed the questionnaire (6 Democrats, 3 Republicans), and the Globe has published their answers here.

Marty Lederman gives a quick overview of their answers in this post.

By in large, I found the answers given by the Democratic candidates to be reassuring. Clinton, Obama, Biden, Richardson, and Dodd all made clear that they considered the president to be bound by FISA, the various laws against torture, and treaties like the Geneva Conventions. Their answers were clear and unequivocal, as they should be.

The only one of the Democrats whose answers seemed to leave a little wiggle room on this issue was, surprisingly, John Edwards. His answers weren't quite as precise as the others, though, in fairness to him, it's entirely possible that this lack of precision was unintentional. It may be that his staff just wasn't as careful in answering the questions.

The only issue about which there was any real disagreement among the Democrats was on the use of signing statements. Biden, Richardson, and Dodd all claimed that they would not use statements as president, while Clinton, Obama, and Edwards claimed that they would use signing statements the way they had traditionally been used prior to the Bush administration. Like Marty, I think the latter position is probably the correct one. Here's Obama's response:

Signing statements have been used by presidents of both parties, dating back to Andrew Jackson. While it is legitimate for a president to issue a signing statement to clarify his understanding of ambiguous provisions of statutes and to explain his view of how he intends to faithfully execute the law, it is a clear abuse of power to use such statements as a license to evade laws that the president does not like or as an end-run around provisions designed to foster accountability.

I will not use signing statements to nullify or undermine congressional instructions as enacted into law. The problem with this administration is that it has attached signing statements to legislation in an effort to change the meaning of the legislation, to avoid enforcing certain provisions of the legislation that the President does not like, and to raise implausible or dubious constitutional objections to the legislation.

On the Republican side, not surprisingly, Ron Paul's responses were very similar to those given by the Democrats. I was pleasantly surprised, however, by John McCain's responses. Like the Democrats, he unequivocally disclaimed any presidential power to violate FISA and other statutes and treaties. Of course, when asked whether the Bush administration had acted unconstitutionally (which logically follows from his response to the other questions), he refused to answer. McCain also insisted that Congress does not have the power to "limit[] the deployment of troops -- either by capping the number of troops that may be deployed to a particular country or by setting minimum home-stays between deployments," dismissing such measures as unconstitutional "micro-managing" of war. I think that's pretty clearly wrong. On the whole, though, I was still encouraged by McCain's responses. He's nowhere near David Addington or Dick Cheney on the executive power spectrum.

Unfortunately, I suspect that his chief rivals are. Mitt Romney's responses read like something David Addington or John Yoo might have written. They were largely non-responsive and in a way that suggests Romney doesn't believe the president's power to be subject to any serious constraints. In response to the question of whether the president has "inherent powers under the Constitution to conduct surveillance for national security purposes without judicial warrants, regardless of federal statutes," Romney answered:

Intelligence and surveillance have proven to be some of the most effective national security tools we have to protect our nation. Our most basic civil liberty is the right to be kept alive and the President should not hesitate to use every legal tool at his disposal to keep America safe.

As you can see, completely non-responsive and indicative of a willingness to disregard federal statutes.

Give Romney credit for at least bothering to respond, though. Rudy Giuliani, Fred Thompson, and Mike Huckabee chose not to. On Giuliani's behalf, Ted Olson gave this boilerplate response:

The President must be free to defend the nation. While the Congress has an essential constitutional role in our national defense, the Supreme Court has also recognized that the president has certain core constitutional responsibilities to ensure that our nation can defend itself and our fundamental liberties in times of emergency. Controversies on this question are as old as our Constitution, and have been faced by many of our most respected presidents, and they will not disappear even after we have succeeded in the war that terrorists have declared on our citizens and homeland. Our aim must be to strike a balance between order and liberty that addresses the challenges we face within the bounds of the Constitution.

Translation: I'm not going to tell you how Giuliani would respond to these questions because it would probably scare you.

My hunch is that Giuliani's views on these issues would make Dick Cheney seem like a civil libertarian by comparison.

As for Fred Thompson and Mike Huckabee, I doubt either of them have ever given these issues any real thought.

Long story short, I'm encouraged that the Democrats were willing to give clear, unequivocal answers to these issues. I'm pretty confident that the ideas espoused by the David Addingtons and John Yoos of the world would find no currency in a Democratic administration.

And this exercise reinforces my view that John McCain is the least scary of the Republican candidates (at least who has a realistic shot at ever being president).

Kudos to Charlie Savage for getting the candidates to answer these important questions on the record. If you want to thank him for his hard work, buy his book. It's really really good.