The Decider Can Become a Dictator

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News Journal (Delaware)

The Decider Can Become a Dictator

The Decider Can Become a Dictator

Sanford Levinson

Taking note of Perez Musharraff's resignation as president of Pakistan, the New York Times editorialized that "the presidency must also be stripped of the special dictatorial powers that Mr. Musharraff seized for himself, including the power to suspend civil liberties and rule by decree." It is easy to agree, especially given some of Musharraf's excesses -- including firing judges he didn't like.

One might substitute the Bush presidency. The most dramatic example is the basically unilateral decision by the president to suspend recognition of limits imposed by American and international law on methods of interrogation and detention of persons -- including U.S. citizens -- declared, often by sheer fiat, to be "the worst of the worst."

George W. Bush's description of himself as "the decider" reinforces the notion that we are electing what might be called a "constitutional dictator" empowered to make unilateral decisions on matters of peace and war, life and death.

A similar idea was suggested by Hillary Clinton's disgraceful "3 a.m." campaign ad, which fed the image of the president as our de facto dictator, ready and willing to make instant decisions about national security.

Bush administration lawyers have mined ambiguities in the Constitution for the proposition that the president's power is basically unconfined whenever he is acting as commander in chief or otherwise trying to protect vital U.S. interests. Such views display contempt both for Congress and popular government.

When the redoubtable journalist Helen Thomas asked White House press secretary Dana Perino in March if the American people are entitled to any real input on presidential decision making regarding the conduct of the Iraqi war, Perino replied that "the American people have input every four years, and that's the way our system is set up."

This is a frightening theory of electoral democracy, for it limits popular opinion to once every four years -- when the winner of the election may, because of the vagaries of the Electoral College, fall short of receiving majority approval. It is especially frightening with regard to second-term presidents who don't even have the potential fear of facing the electorate given the constitutional bar against running for a third-term.

Apologists for the president build their arguments on actions going back to Thomas Jefferson, who believed he was acting unconstitutionally albeit wisely in fundamentally transforming the United States through the Louisiana Purchase, and other White House greats such as Abraham Lincoln and Franklin Roosevelt.

The late political scientist Clinton Rossiter described Lincoln as a dictator during various phases of the 1861-65 Civil War that almost destroyed the Union. And it is clear that Roosevelt played fast and loose with legal limits in some of his pre-World War II collaboration with British intelligence (as revealed in William Stevenson's book "The Man Called Intrepid").

It is probably true there are occasions when we expect what Alexander Hamilton called "energy" in an executive forced to respond to exigencies where time is of the essence and widescale consultation or recourse to Congress is impossible. Outside of national security, one might think of recent threats to the international economic order, where decisions had to be made literally overnight (by Federal Reserve Chairman Ben Bernanke, it turns out, rather than by President Bush).

To the extent that one of the tasks of the modern president is to make decisions of great consequence, it is important that we have ways to discipline presidents who display bad judgment. Impeachment doesn't come close to providing a proper remedy for an incompetent president inasmuch as it forces us to ask, "Is the president a criminal" -- rather than the appropriate question: Is this someone we feel confident giving unilateral authority regarding peace and war, life and death?

It would be wonderful, however unlikely, if the candidates for president would speak to the powers of the modern office and the extent to which they are aspiring to become our constitutional dictator for the next four years.

It would be even better if the rest of us asked if we are being well served by a system that will assure a four-year tenancy in the White House for a president who engages in disastrous decision making. Anyone who believes the issues posed by presidential power will vanish with the exit of George W. Bush and Dick Cheney on Jan. 20, 2009, is sadly mistaken.


Sanford Levinson holds the W. St. John Garwood and W. St. John Garwood Jr. Centennial Chair in Law at the University of Texas Law School. He is the author of "Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It)."

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