Lincoln, FDR, Bush: Which Doesn't Belong?

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Mr. Spitzer is Distinguished Service Professor and Chair of the Political Science Department at SUNY Cortland. His most recent book is Saving the Constitution from Lawyers: How Legal Training and Law Reviews Distort Constitutional Meaning (Cambridge University Press, 2008).

As we enter a new political year and the beginning of the Obama presidential era, can we at last dispense with the canard that George Bush's vast claims of executive power, taken mostly in the name of fighting terrorism, are no different than those of Abraham Lincoln or Franklin Roosevelt?

In recent weeks, the outgoing administration has ramped up its parade of interviews justifying its actions, none more so than Bush's executive power architect, Vice President Dick Cheney, who proclaimed in an interview recently that the administration's actions were"fully consistent with the Constitution.""If you think about what Abraham Lincoln did during the Civil War, and what FDR did during World War II, they went far beyond anything we've done." In Cheney's telling, Bush's actions were merely"the legitimate authority of the President under Article II of the Constitution as Commander-in-Chief." Yet three factors tell the real tale of this comparison: necessity, the role of Congress, and presidential power claims.

It's well known that Abraham Lincoln took extreme measures as president at the outset of the Civil War, including suspending habeas corpus, calling up the state militias, and blockading the rebellious southern states. He took these and other actions without the consent of Congress. But Bush, Cheney, and many others, have brushed aside three inconvenient facts of Lincoln's actions. First, Lincoln took office in March 1861, but Congress didn't convene until July. Necessity dictated that Lincoln simply couldn't wait until Congress's return. The nation was literally coming apart at the seams as southern states seceded and mobilized; travel to the nation's capital was so dangerous that the president-elect had to disguise himself. Inaction could have easily led to Confederate capture of Washington, D.C. This moment was the most dire threat to the nation's continued existence it ever faced. Second, Congress's literal unavailability until July necessitated presidential action in its absence. Third, Lincoln never claimed to possess the extravagant powers he exercised. In fact, he said the reverse: in his July message to Congress, Lincoln requested retroactive legislative authority for his actions, asking"that Congress would readily ratify them." Lincoln described his actions as within"the constitutional competency of Congress" - not, as Bush/Cheney would say, within the constitutional competency of the president. Congress duly gave legislative approval.

Franklin Roosevelt undoubtedly stretched the bounds of his office in domestic and foreign affairs. Yet World War II was the penultimate threat to the American nation from without: attack and invasion by one or more heavily armed sovereign nations. In Roosevelt's arguably most extreme (and, we now know, unnecessary) act, he ordered the internment of tens of thousands of Japanese Americans for the duration of the war. Yet after Pearl Harbor, the threat of coastal attack was not hypothetical, and California's Attorney General, Earl Warren, testified before Congress"disturbing" information regarding threats posed by Japanese Americans. Warren's evidence was thin, and the necessity of internment withers under scrutiny, as Congress concluded in 1982. Still, Roosevelt acted by executive order. A month later, Congress legislatively endorsed his actions. Roosevelt made clear his intention to act with or without Congress, but at no point did FDR argue that Congress had no right to act, or that his actions were beyond the reach of congressional power.

When we compare Bush to his predecessors, the necessity justification is the most vexing. Is the war on terrorism commensurate with the literal dissolution of the Union through armed rebellion of half its states, or with the threat of a large-scale attack by one or more sovereign nations? As Bush has said, history will be the final judge. But on the other two counts, the Bush justification by comparison not only fails, but stands ominously alone. Lincoln recognized Congress's pre-eminence; Roosevelt was less deferential, but worked with Congress, and never suggested that his constitutional powers were somehow greater.

Bush has not only rejected the fact of Congress's central constitutional role, but unlike all his predecessors, he has embraced the tendentious Unitary Executive theory, which claims that presidential actions are not only beyond the reach of Congress, but are immune from judicial scrutiny. In other words, it rejects the very basis of three-branch governance. Bush's predecessors ably met past crises working within a flexible constitutional framework. Bush's frank and unnecessary rejection of that same framework may be the most telling weakness of the Bush years. And it is a lesson that the new Obama administration should take to heart.

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Bill Heuisler - 1/12/2009

First, President Bush is a victim of his policies' success; we have not been attacked on our homeland because of actions taken by this president.
Second, I will agree with Mr. Reitz and go a step farther in that the cited "three" examples of Lincoln's reasons for action are really only two as the first two are exactly the same in different words.
Lastly, there was near unanimous confirmation of the Patriot Act in Congress and doubts have risen in direct prooportion to our distance from 9/11. Imagine this article being written if we'd been attacked on a large scale since 9/11.
Bill Heuisler

Mark Reitz - 1/12/2009

Without addressing the specifics of what the author alleges the Bush administration has done, or apparently justified post facto, I do believe that the author utilizes an inconsistent standard for his measurements.

"Bush has ... rejected the fact of Congress's central constitutional role." Don't all three branches have central constitutional roles? Why does the author assert that Congress alone is central?

"He has embraced the tendentious Unitary Executive theory, which claims that presidential actions are not only beyond the reach of Congress, but are immune from judicial scrutiny." Hasn't the Bush administration acquiesced to the role of the judiciary, in cases such as Boumedienne and Hamden, and followed the decisions of the Supreme Court once those decisions have been made?

"In other words, it rejects the very basis of three-branch governance." The author recognizes we have a three-branch government, but how does this relate to "Congress' central constitutional role?"

"Predecessors ably met past crises working within a flexible constitutional framework." Is flexible a euphamism for bending the Constitution? It seems to be what the author is implying.

"Bush's frank and unnecessary rejection of that same [flexible] framework may be the most telling weakness of the Bush years." Again, does the author mean that Bush was unwilling to flex and bend the Constitution, or that he did it too much?

The article cites no specifics of Bush action, and in a six paragraph post, perhaps it's too much to expect that examples be used. However, the general and conclusory nature or the article leaving me desirous of a more in depth comparison between the presidents cited.