Gene Healy argued in 2008 that President Bush's executive power excesses would require more than a personnel change to reverse.
Published in the spring of 2008, Gene Healy's book The Cult of the Presidency argued that the Bush Administration's alarming expansion of executive power couldn't be completely explained by fear of Islamist terrorism, the ideology of Dick Cheney, or the machinations of David Addington and John Yoo. Critics were right to decry their excesses at home and abroad, and to worry about an Imperial Presidency taking hold in America. "But the problem cannot be solved simply by bringing a new administration to power," Healy wrote. "The fault lies not in our leaders but in ourselves. When our scholars lionize presidents who break free from constitutional restraints, when our columnists and talking heads repeatedly call upon the 'commander in chief' to dream great dreams and seek the power to achieve them -- when voters look to the president for salvation from all problems great and small -- should we really be surprised that the presidency has burst its constitutional bonds and grown powerful enough to threaten American liberty?"
The book was praised in the political press, garnering accolades from writers as diverse as George Will, Ezra Klein, and Glenn Greenwald. But its thesis wasn't widely circulated or accepted. By that time, even Republicans had long since soured on the tenure of George W. Bush, who had few defenders. Democrats were preparing to choose, as their Election 2008 nominee, a United States senator with a background in constitutional law and a penchant for civil libertarian rhetoric.
As Jeffrey Rosen wrote in The New Republic:
If Barack Obama were to win the Democratic nomination and the White House, he would be, among other things, our first civil libertarian president. This is clear not just from his lifetime rating on the ACLU's scorecard (82 percent compared to John McCain's 25 percent).
It is clear from the fact that civil liberties have been among his most passionate interests -- as a constitutional law professor, state legislator, and senator. On the campaign trail, he has been unapologetic about these enthusiasms. In New Hampshire, I heard him end a rousing stump speech by promising the cheering crowd, "We will close Guantanamo, we will restore habeas corpus, we will have a president who will respect and obey the Constitution."
Has a political consultant ever urged a candidate to brandish habeas corpus?
It was as if events conspired so that Healy and Rosen could settle the disagreement implicit in their respective work. Did a "cult of the presidency" practically guarantee dangerous excesses? Or would the excesses of the Bush White House be reined in by the declared civil libertarian Obama, who would be "likely to articulate constitutional positions and then conform his presidential actions to them, rather than take positions and then rely on lawyers to justify them"?
History hasn't been kind to Jeffrey Rosen's analysis.
"During the last presidential campaign, I swooningly predicted that Barack Obama would be our first civil libertarian president," he admits. "Of course, I was wrong, and the last three years have offered plenty of disappointments in the president's record on privacy and national security." He goes on to say something that suggests he still hasn't bought Healy's thesis. "If Obama wins a second term, I hope reelection gives him the freedom to redeem that unfulfilled promise."
As if too little freedom is Obama's problem?
It's no wonder that Healy felt the need to restate his thesis, applying arguments developed during the Bush years to a successor who has continued so many of his controversial policies (and gone farther in areas like extrajudicial assassinations and waging war without Congressional approval). The title is False Idol: Barack Obama and the Continuing Cult of the Presidency (it's e-book in format, length, and price). It won't surprise regular readers to hear that I am very sympathetic to its arguments. One of my favorite passages actually defends the president:
On April 20, an explosion at BP's Deepwater Horizon platform, 40 miles off the Louisiana coast, led to the largest marine oil leak in history. The "blowout preventer" designed to seal the drill site in case of emergency failed, and hundreds of thousands of gallons of oil began gushing into the Gulf of Mexico. As successive attempts to plug the Deepwater Horizon leak failed, Republicans who'd thrilled to Sarah Palin's cry of "Drill, baby, drill!" at the 2008 GOP Convention assailed President Obama for letting the private sector take the lead in the well- capping operation. In May, Palin herself wailed that it was "taking so doggone long" for Obama "to dive in there." From the other side of the aisle, James Carville screeched, "Man, you got to get down here and take control! Tell BP, 'I'm your daddy!'"
What, exactly, did Palin, Carville, et al. want? A government takeover of the spill site? "To push BP out of the way would raise the question: replace them with what?" Coast Guard Admiral Thad Allen, the government's national incident commander for the Deepwater Horizon spill, said at a White House briefing. The federal government didn't have a Delta Force squad of well-capping specialists at the ready for the sort of disasters that happen every decade or so, and BP had superior technology and a compelling financial incentive to stop hemorrhaging market value along with oil. BP was "exhausting every technical means possible," Allen explained, and those were the best means available. Most of the complaints dominating the airwaves and the op-ed pages smacked of a quasi-religious conception of the presidency. If only Obama would manifest himself at the afflicted area, shed his aura of cool reserve, and exercise the magical powers of presidential concern, perhaps the slick would recede.
It's easy to laugh at Palin and Carville. But are the American people really so different? Voters expect the president to keep gas prices low, to prevent all terrorist attacks in a continent-sized country, to "create jobs," to render cheaper labor costs in Asia a comparative advantage without consequence, to improve public schools, to cut taxes, to reduce the deficit, and to preserve all current entitlement spending. Our presidents pretend that they're up to the challenge, knowingly make promises that they can't keep, and overstep their constitutional authority trying, as if the burdens placed upon them justify overstepping laws meant to constrain them.
Often Americans look the other way, as if they agree.
"Barack Obama deserves plenty of blame for that, particularly in the foreign affairs arena -- where presidents have the most control, and where this president had promised, however implausibly, to restore constitutional constraints on his own freedom of action," Healy writes. "And yet there's something eerily mechanical in the way the modern state steadily expands regardless of which party or president holds the office. Our government has become a runaway train -- and presidential elections increasingly look like a struggle to determine who gets to sit in the front cab and pretend he's driving." Its an observation that resonates with "third party" supporters, whether their candidate is Libertarian Gary Johnson, the Green Party's Jill Stein, or Ron Paul.
The "cult of the presidency" thesis is one Democrats and Republicans would both do well to understand and grapple with. But it holds a lesson for everyone who is attracted to third-party candidates too. If flaws in modern attitudes toward the presidency really are a big part of the problem, it wouldn't be enough to elect one civil libertarian president, even if he or she improbably resisted the temptations and pressures of the office. In the long run, only a strong Congress can rein in the executive branch. Expecting a Ron Paul or Jill Stein figure to do it from the White House falls prey to the same wrongheaded thinking that makes a cult of the presidency. It's fine to vote third party, but changing Congress ought to be the more urgent priority.
As Healy puts it, "Can the president launch a war without Congress? How far do executive surveillance powers extend? Can the president use U.S. armed forces to seize an American citizen on American soil and hold him in a military brig? Can he authorize the targeted killing of an American citizen via robot assassin? These are core questions of federal power over which the president enjoys far more discretion than he does over the budget. And yet when it comes to the role of the presidency and the scope of executive power, there isn't a dime's worth of difference between the two tickets." He's hardly the first to observe as much. But his explanation for why there isn't any significant difference is as compelling and original as any I know.