Presidential Power Must Be Curbed After Trump, 2020 Candidates Say

The presidential hopefuls detailed their views on the limits of executive power in response to a New York Times survey.
CreditCreditErin Schaff/The New York Times

By September 10, 2019

In responses to a New York Times survey about executive power, the Democrats — along with two Republicans mounting primary challenges to Mr. Trump — envisioned a rebuke of his term by enshrining into law previous norms of presidential self-restraint.

Many called for new laws that would require presidents to disclose their tax returns and to divest from significant assets; bar them from appointing close relatives to White House positions; and constrain their abilities to award security clearances and to fire special prosecutors investigating their administration, among other potential reforms.

The survey is the first and most detailed collection of the candidates’ views on a set of issues that they are rarely asked about, yet often prove crucial to the outcome of political fights: the scope and limits of a president’s power to act unilaterally or even in defiance of statutes

The survey — which elicited answers from 15 Democrats, including all in the top polling tier and eight of the 10 in Thursday’s debate — also focused on recurring constitutional disputes that have arisen under recent presidents of both parties on matters including secrecy and war.

“The American people should fully know how candidates will use the power of the presidency,” Senator Elizabeth Warren wrote, echoing other candidates who agreed that voters should know their views before deciding whom to entrust with the power of the White House.

Presidents have “a responsibility to make sure excess power is not used to start endless wars, attack the privacy of Americans, or undermine the democratic values of our country,” she added.

But though the candidates “seem committed to reforming the presidency,” they might have second thoughts from the vantage point of the Oval Office, said Jack Goldsmith, a Harvard law professor and former senior Justice Department official in the George W. Bush administration who reviewed their responses.

“The next Democratic president will happily accept new rules on tax releases, but will have a harder time accepting constraints on security clearances and emergency or war powers,” he said. “Institutional prerogative often defeats prior reformist pledges.”

Indeed, former Vice President Joseph R. Biden Jr. expressed a more expansive view of presidential war powers after eight years in the Obama White House than he did in 2007 during an earlier run for president.

The 2020 candidates agreed on some issues, including that Mr. Bush was wrong to claim after the Sept. 11 attacks that he could override surveillance and anti-torture laws because he was the commander in chief.

But they diverged about others, like whether President Barack Obama’s invocation of the same power was legitimate. Mr. Obama used similar reasoning to disregard a requirement that he give Congress 30 days’ notice before transferring Guantánamo Bay detainees as part of the 2014 Bowe Bergdahl prisoner swap.

Senator Kamala Harris, for example, wrote that while a president can lawfully override or bypass statutes that are clearly unconstitutional, she thought the detainee transfer law — along with the surveillance and anti-torture laws — was a constitutional limit that presidents must obey.

“The executive branch is not above the law,” she wrote, adding, “As president, I would respect these laws.”

By contrast, Mr. Biden defended the decision by Mr. Obama — then his boss — to immediately carry out the exchange after the deal was struck instead of waiting 30 days. Obama administration officials argued that a delay would have endangered the captive soldier’s life.

“The transfer of detainees from Guantánamo was an exchange of prisoners in a conflict, and therefore a valid exercise of the commander-in-chief power,” Mr. Biden wrote.

He participated in an earlier iteration of the survey as a senator seeking the 2008 presidential nomination, and his new answers reflected the understanding of executive authority that he gained from watching close up as Mr. Obama wielded it.

In late 2007, for example, Mr. Biden offered a restrictive view of when presidents may unilaterally direct the military to attack other countries, writing: “The Constitution is clear: Except in response to an attack or the imminent threat of attack, only Congress may authorize war and the use of force.”

But in the new survey, Mr. Biden called it “well established” that presidents may launch limited strikes “without prior congressional approval when those operations serve important U.S. interests.”

That legal rationale for ordering limited attacks without congressional approval echoed the Obama administration’s stance during the NATO intervention in Libya in 2011. But the bombing campaign violated a limit on executive war-making powers that both Mr. Obama and Mr. Biden had said they would respect in the 2007 candidate survey.

Importantly, however, Mr. Biden said both then and now that any bombing of Iranian nuclear sites — a prospect in which the scope of unilateral presidential war-making authority has repeatedly come up — would require prior authorization from Congress because it would carry too much risk of escalation into a major war.

Still, several of Mr. Biden’s rivals took a more constrained view, suggesting that a rationale of serving American “interests” is not enough to justify even limited strikes without Congress.

“In situations where the use of force is necessary, absent an imminent threat to our national security, I will take that case to Congress and the American people to seek authorization,” former Representative Beto O’Rourke wrote.

Most candidates left the door open to using presidential signing statements, when approving bills, to claim a right to bypass provisions they see as unconstitutionally infringing on executive powers. But the answers submitted by the campaign of Senator Bernie Sanders — which were written in third person — pledged he would never use them.

“Signing statements circumvent the will of Congress and have no constitutional or legal legitimacy,” the response said. “As president, Bernie would not issue signing statements.”

The survey revealed broader disagreements about the wisdom of several other potential reforms raised by Mr. Trump’s record. Significant numbers of candidates stood on both sides of ideas like curtailing future presidents’ latitude to invoke emergency powers and to choose acting agency heads when temporarily filling vacancies.

But the candidates were largely united in rejecting the view of Mr. Trump’s legal team, including Attorney General William P. Barr, that obstruction of justice laws do not apply to presidents who abuse their official powers to interfere with investigations for corrupt reasons.

Many also expressed skepticism of the Justice Department’s view that sitting presidents are immune from indictment, which bound the special counsel, Robert S. Mueller III, as he weighed Mr. Trump’s attempts to obstruct the Russia investigation. Most said they would sign a law pausing the statute of limitations for offenses by presidents, ensuring that they can still be prosecuted after leaving office.

But they split over what else to do about it. Several said they would direct the department’s Office of Legal Counsel to rescind its opinion, while others sidestepped that question. Mayor Pete Buttigieg argued that it would interfere with Justice Department independence for a president to simply direct the office, commonly called O.L.C., to change its legal interpretation.

“Because the integrity of the Justice Department is critical to the rule of law, I do not think it would be appropriate for any president to dictate the legal conclusions that O.L.C. may issue or retract,” Mr. Buttigieg wrote.

After The Times began the survey, Protect Democracy, a nonpartisan group of former officials seeking to prevent a decline “into a more authoritarian form of government,” lobbied the candidates to participate. Justin Florence, a former Obama White House lawyer and the group’s co-founder, praised those who answered the questions.

“With democracy in retreat and autocratic politics on the rise here and around the world, this survey provides critical insights into how each candidate understands the limits on the immense powers they’re seeking,” Mr. Florence said.

Several prominent Democratic candidates have not answered the questions. They include Mayor Bill de Blasio, who issued a general statement; Julian Castro, the former Housing and Urban Development secretary; former Representative John Delaney; and the businessmen Tom Steyer and Andrew Yang.

The New York Times

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