Crisis and Command: A History of Executive Power from George Washington to George W. Bush (52 page)

Known as the "Saturday Night Massacre," the October 20, 1973, firing created a conflict between the President's authority to supervise the enforcement of the laws and his status as a potential subject of investigation. Although Jimmy Carter campaigned on the idea of making the Justice Department an independent agency, and several members of Congress introduced legislation, the proposals went nowhere, and they would almost certainly have presented an unconstitutional invasion of a core power of the President. Treating prosecution as a neutral act of administration ignores the fundamental policy choices made in law enforcement, such as where to place resources, what crimes to prioritize, and where to ameliorate the harshness of the laws. The only way that the people can affect these judgments is through their election of the President; making the Justice Department independent would have left these critical choices in the hands of unaccountable bureaucrats. It would have been akin to making the Joint Chiefs of Staff and the military independent of the Commander-in-Chief.

Congress and President Carter decided to create an independent prosecutor instead. Under the Ethics in Government Act of 1978, the Attorney General must conduct a preliminary investigation upon receiving information "sufficient to constitute grounds to investigate" whether high-level executive branch officials, including the President, Vice President, top White House aides, and cabinet officers, have violated federal law. If the Attorney General concludes that there are "reasonable grounds" for further investigation, he must ask a special division of the federal appeals court in Washington for the appointment of an independent prosecutor. The court selects the independent counsel, who exercises the "full power and independent authority" of the Justice Department, and defines his jurisdiction. The Attorney General can only remove the prosecutor for "good cause," which can be challenged in court. The Act produced a plethora of investigations, ranging from the important (Iran-contra under Reagan, Whitewater under Clinton), to the insignificant (cabinet officials accepting free event tickets). By 1999, when the law lapsed, more than 25 independent counsels had conducted investigations at a cost of about $175 million. Operating without any superiors, independent counsels used every available resource to leave no stone unturned.
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Congress also inserted a mini-independent counsel into each agency. The 1978 Inspector General Act centralized investigations and auditing within each agency into an Inspector General. The statute required IGs to be confirmed by the Senate and to report regularly to Congress and prohibited the President from removing them unless he explained his reasons to the legislature.
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While not an attempt, like the independent prosecutors, to make the inspectors totally free from presidential control, the Act tried to weaken executive control by creating offices within each agency that would feel more loyalty toward Congress.

Watergate gave birth to yet another method of congressional control, the introduction of "framework statutes" that attempted to restrict the exercise of delegated authority or the operations of the Presidency itself. These laws only permitted the President to exercise certain powers after making a series of findings, accompanied by requirements of consultation and reporting to Congress. The War Powers Resolution was but one example. After the Church Committee hearings into the CIA's activities, Congress enacted the 1980 Intelligence Oversight Act to regulate the President's control of covert operations. It required the CIA to keep the House and Senate Intelligence Committees fully informed of all intelligence activities, including covert action as well as intelligence gathering and counter-intelligence. No funding would be available for covert actions unless the President made a finding that an operation was necessary to advance the national security.

The National Emergencies Act of 1976 terminated existing national emergencies and required the President to make certain findings to declare a new one. The International Emergency Economic Powers Act of 1977 (IEEPA) allowed the President to impose economic sanctions only after a finding that a grave foreign threat to the national security existed. Presidents from FDR through Nixon had authorized wiretaps for foreign intelligence purposes on their executive authority, rather than through the courts. While the Supreme Court had held that surveillance of domestic threats required a warrant as required by the Fourth Amendment, it expressly left open whether the President would need one to protect against foreign threats. In the Foreign Intelligence Surveillance Act of 1978, Congress required a warrant from a special federal court before electronic surveillance of foreign spies or terrorists could occur domestically. The Case-Zablocki Act required the President to send Congress any international agreement that did not rise to the level of a treaty.
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Other Watergate reforms aimed at the operation and activities of the Presidency at home. Congress amended the Federal Election Campaign Act (FECA) in 1974 to limit individual contributions to candidates, political action committees, and political parties, and it placed a ceiling on campaign expenditures for presidential elections in exchange for public financing. In creating a Federal Election Commission for enforcement, the FECA eroded the President's appointment powers by allowing the leaders of Congress to choose some of its members, though the Supreme Court would hold this provision unconstitutional.
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Presidents had long considered White House papers to be their personal property, which allowed them to control the access of researchers. In the Presidential Records Act, Congress made Nixon's papers and those of all future Presidents public property and opened them to the public 12 years after the President leaves office.

Congress pressed openness in government to general executive branch operations as well. It overhauled the Freedom of Information Act to expand the right of access to government records, subject only to narrow exceptions with review by the courts. In the Privacy Act, Congress gave private citizens the right to sue if their own government records were disclosed, and the right to see those records for themselves. The Sunshine Act required that meetings of government commissions and boards be made public, and the Federal Advisory Committee Act extended the same rule to meetings between the executive branch and private groups.
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All of these laws had the intent to bind the executive branch, to narrow its discretion, to slow its decisions, to force it to act within congressional preferences, and to allow public inspection of its operations. These acts undermined the very character of executive power. Forcing the President to act solely through framework statutes, turning the executive branch into a Swiss cheese of insulated agencies and unremovable officers, and subjecting White House decisions to easy congressional override ignored the reasons for an independent executive in the first place. The President is at his best when responding swiftly and decisively to unforeseen events, when rising to a challenge that is too difficult or dangerous for the legislature. While subjecting the executive to legislative control might alleviate concerns about an unchecked President, it would disrupt the Constitution's creation of three independent branches with the power to balance each other through the political process. Legislative supremacy would threaten liberty just as surely as unchecked executive power would.

Presidents naturally resisted these efforts to dilute their authority. Aside from Carter's approval (and Reagan's extension) of the Ethics in Government Act, it does not appear that any Cold War President accepted congressional efforts to regulate their core executive functions.
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Efforts to reclaim executive power reached their climax as President Reagan sought most aggressively to expand OMB's powers. The Carter administration had shown in high resolution that national policy would lose its coherence under a President with weak powers. Reagan consciously sought to unify law enforcement in the executive branch, and ultimately the White House, to reduce the burdens of regulation on the economy, and to return decisions to the private markets.

Presidents in the post-Watergate era used the framework laws to enhance, rather than limit, their power and interpreted any congressional failure to prohibit past presidential practice as implicit congressional acquiescence. With the War Powers Resolution, for example, Presidents acted quickly within the 60-day window, which they claimed recognized their constitutional powers to use force without congressional consent. Statutory procedures for approval of covert actions were interpreted to recognize presidential authority to undertake covert actions in the first place. Presidents often treated consultation with Congress before a decision as a mere act of notification, and often delayed filing reports with Congress that triggered restrictions on their powers. Members of Congress usually showed no desire to challenge presidential actions, especially in foreign affairs, that claimed new power under a framework statute. Any legislation to overrule presidential action would be subject to a veto.

The courts used a variety of procedural doctrines to stay out of conflicts between the executive and legislative branches, or even blessed presidential claims to broad powers.
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A case in point was the resolution of the Iranian hostage crisis. In 1979, Iranian students seized the American embassy in Teheran and held the diplomatic personnel hostage for the next 444 days. In April 1980, President Carter launched a military rescue operation that failed miserably in the Iranian desert. Carter did not follow the War Powers Resolution in carrying it out. In early January 1981, a deal was finally reached to release the hostages in exchange for the lifting of a freeze on Iranian assets in the United States. Companies owed money by Iran sued to prevent the transfer of the assets, which federal courts had attached to satisfy the outstanding claims.

Carter issued an executive order under IEEPA suspending the claims, nullifying the judicial orders, and transferring the funds out of the country. In an emergency lawsuit, the Supreme Court unanimously rejected the corporations' claims that the government had taken their property without just compensation. They further rejected a separation-of-powers challenge that the President had acted without legal authority. Although IEEPA gave the President the power to nullify orders and transfer assets, the companies correctly argued, it was silent on any power to suspend legal claims. Borrowing Justice Jackson's
Youngstown
framework, Justice Rehnquist wrote that a long, unbroken practice of presidential settlement of claims with foreign nations, combined with Congress's failure to oppose the practice, amounted to acquiescence. As a sign of Carter's bad luck, even though he had negotiated the agreement with Iran, the hostages did not return until Reagan took office.
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The Reagan administration sought further judicial ratification for its reassertion of presidential power. Its first step was to cut the ties that allowed Congress to pull formal strings over the exercise of delegated power. In
INS v. Chadha
(1983), the Reagan administration challenged the legislative veto. Acting under the Immigration and Naturalization Act (INA), the Attorney General suspended the deportation of Chadha, an alien, because he would suffer "extreme hardship." Using the INA's legislative veto provision, the House overruled the Attorney General and placed Chadha back on the deportation list.

In Chief Justice Burger's majority opinion, the Court found that the House's action amounted to legislation because it changed the legal rights and duties of a private individual. Congress could establish national rules only by enacting a law--passing a bill by a majority of both Houses (bicameralism), which is signed by the President (presentment). Otherwise, it would have to live with the results of the executive branch's exercise of its delegated power. "Congress must abide by its delegation of authority until that delegation is legislatively altered or revoked."

More was at stake than just the Presidency. The Framers, according to the Court, had lived with unchecked legislative power and wanted to make the passage of legislation difficult in order to protect private liberty. Bicameralism and presentment "were intended to erect enduring checks on each Branch and to protect the people from the improvident exercise of power." To be sure, the elimination of the legislative veto might make Congress less likely to delegate power to the executive branch in the future. But
Chadha
clarified the lines of accountability and returned Congress to the regular methods of legislation, oversight and confirmation hearings, or funding cut-offs.
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Step two was to reverse Congress's efforts to shift law enforcement authority away from presidential control. In 1986, the Reagan administration sued to block the Balanced Budget and Emergency Deficit (Gramm-Rudman-Hollings) Act of 1985. Unable to overcome the collective action problem in agreeing to reduce the budget deficit, Congress set spending reduction targets for a five-year period. If the deficit did not hit the target, the Act required automatic across-the-board spending reductions to be calculated by the Comptroller General and implemented by the President.

A strange hybrid, the Comptroller General serves as head of the General Accountability Office and can be removed only by Congress. According to the Court, granting the Comptroller General a role in the Gramm-Rudman-Hollings scheme violated Article II of the Constitution. "To permit the execution of the laws to be vested in an officer answerable only to Congress would, in practical terms, reserve in Congress control over the execution of the laws." This violated the Framers' intent to create "a vigorous Legislative Branch and a separate and wholly independent Executive Branch, with each branch responsible ultimately to the people." Again, the Court emphasized that the Framers were worried that "the Legislative Branch of the National Government will aggrandize itself at the expense of the other two branches."
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