Review: Takeover


By Charlie Savage; Little, Brown and Co., 2007, 378 pp.


Can there be an imperial presidency without an empire? That fundamental question remains unanswered in Charlie Savage’s otherwise excellent and thorough book about the amassing of power in the executive branch during the Bush presidency. While Savage gives the reader a comprehensive and detailed explanation of the Bush administration’s power grab—from its putting the theory of the "unitary executive" into practice, to its penchant for secrecy and use of signing statements to declare portions of laws "unconstitutional"—he never offers any rationale for the "takeover" of the U.S. government by the executive branch. 

The question Savage does answer is whether this concentration of power in the executive branch is a temporary phenomenon, rather than a permanent structural change. As we shall see, Savage believes the changes wrought by Bush and company are permanent, absent some other, unlikely, intervening events. Perhaps the reason for this pessimism lies in Savage’s background as a veteran reporter for the Boston Globe who has won the Pulitzer Prize covering civil liberties issues. He is also a lawyer and able to dissect the various legal issues and provide a comprehensive framework for the various court rulings and constitutional questions that are at the core of this story.

Savage begins his tale in a bunker carved out of the bedrock beneath the White House on September 11, 2001. Vice President Cheney has just given a shootdown order for the United Airlines flight that subsequently crashed in a Pennsylvania field. The fact that Cheney did not have the authority to give such an order was no deterrence. It is clear from the beginning of Takeover that Cheney was, and still is, the driving force behind this phase of the imperial presidency. 

Therefore, Savage centers his story on Cheney and the team that he assembled from his earliest days in government. Savage points out that Cheney did not come from the ranks of the ruling class. The son of a bureaucrat with the U.S. Department of Agriculture, Cheney did not have a stellar school career. Prior to the vice presidency, Cheney was hired by Donald Rumsfeld in the Office of Economic Opportunity, where he had his first clashes in trying to bring the federal bureaucracy under presidential control.  As chief of staff to President Gerald Ford he battled Congress, in general, and Senator Frank Church, in particular, to preserve aspects of the national security state. Then he served as an undistinguished congressperson from Wyoming and, finally, as Secretary of Defense in the Reagan administration.  

Savage makes clear that Cheney was stung by the loss of power from the executive to the legislative branch. It seems that Watergate and the Vietnam War (which Cheney avoided through five deferments) had, in Cheney’s view, eroded that power. The remainder of the book tells the story of how Cheney and his loyal assistant, David Addington, used every questionable theory promulgated by right wing think tanks—such as the American Enterprise Institute, Heritage Foundation, and the Federalist Society, as well as naked power grabs through bullying and bluster—to unconstitutionally seize more power for the presidency. The result is the institutionalized concentration of power in the presidency, a concentration that Savage does not believe can be easily reversed. 

Takeover also offers a comprehensive examination of the history of the imperial presidency from the earliest days of the republic until today. Savage examines each of the theories used to expand presidential power. In order to maintain nominal forms of democracy, it was necessary for those seeking to subvert constitutional government to supply a "legal, constitutional" rationale for such subversion. 

Cheney and Addington found such a rationale in the "Unitary Executive Theory," which states, without any support in the Constitution, that each of the branches of federal government is a unit unto itself, without any overlapping power. According to this theory, the executive branch is a unitary source of power with the president at its head and that executive branch commissions, such as, for example, the Food and Drug Administration designed by Congress to be independent of presidential control, can be overruled, ignored, or eviscerated at the direction of the president. The Unitary Executive Theory rejects the traditionally accepted view that the Constitution creates branches of government with overlapping checks and balances, to prevent the concentration of power and the inevitable resulting tyranny. 

The Unitary Executive Theory, as practiced by the Bush administration, states that the executive branch can hold validly enacted laws as unconstitutional, in whole or part, thereby overriding Congress and usurping judicial oversight through so-called signing statements. The Theory also claims that the president, as commander in chief, has the authority to take any action in time of war, notwithstanding that the Constitution explicitly gives Congress warmaking, budgetary, and related powers. This aspect of the Theory gives rise to the Bush administration claim that with respect to national security, neither Congress nor the judiciary can encroach on the president’s powers as commander in chief. 

Therefore, with respect to "national security" (which during the "war on terror" means everything), the president has the right to either make law through executive order or not follow any law. Of course, this has predictably resulted in abrogation of Constitutional protections and promotion of fascistic practices, such as detention without trial, warrantless wiretapping, and torture. Under the Constitution, the president is the commander in chief of the military, but Bush has purposely, repeatedly misused the term to imply the president is the commander-in-chief of the nation. This misuse inserts a militaristic ordering of civilian life implying civilians must obey the president in the same manner soldiers must obey officers. This terminology has become so pervasive that Republican candidates asserted they are running to become the next commander in chief rather than president. 

Takeover explains that the Unitary Executive Theory had its origins in the Reagan presidency and was developed by the same ideologues now promoting it in the Bush presidency. When Reagan failed to get his deregulation agenda through Congress, he ordered regulatory agencies to submit all proposed regulations for a cost- benefit analysis by political appointees. The Reagan Justice Department prepared a lengthy legal memorandum that argued that the Founders’ intent with respect to the separation of powers was misunderstood.

The authors of the memorandum relied heavily on the Federalist Papers, in particular Federalist 70 by Alexander Hamilton that explained why the Constitution has a single executive rather than a presiding council. Relying on this distortion of Federalist 70 and the above mentioned legal memorandum, Reagan’s Justice Department challenged the Independent Counsel Law. In a June 1988 decision, the Supreme Court by a 7-to-1 vote (only Scalia dissented) upheld the power of Congress to set up agencies in the executive branch that are independent of the president. 

Notwithstanding that decisive defeat, subsequent Administrations claimed and advanced some aspect of the Unitary Executive Theory. However, the current Administration claims an even more muscular version that combines the so-called inherent powers of the presidency with the spurious claim that Federalist 70 mandates separate non-overlapping authority for each branch. Takeover picks apart this strained legal justification for the Unitary Executive Theory by analyzing not only what Federalist 70 actually says, but also Hamilton’s analysis in Federalist 69  that the executive branch can be subject to rules established by Congress. Takeover also chides the intellectual dishonesty of those supporting the Unitary Executive Theory. 

While Takeover does an excellent job of explaining the development and theories of the imperial presidency, as well as debunking the dubious legal theories claimed to support it, the book does not explain the "why" of the imperial presidency. In truth (and Savage does not disagree), the imperial presidency has continued to grow through each administration, whether Republican or Democratic, since Franklin D. Roosevelt. Other than an explanation that Cheney/ Addington thought that the post-Watergate/Vietnam War reforms had severely weakened the presidency, Savage offers no other explanation of the push for a "revival" of the imperial presidency during the current Bush administration. 

Takeover also fails to analyze the growth of the imperial presidency in the context of the crisis of capitalism, starting with Franklin Roosevelt who used executive power to "save" capitalism during the Depression and into the present. As the crisis deepened and mutated, each successive administration has tried to give U.S. capitalism more and more room to exploit. For example, in response to the decisive defeat of U.S. imperialism in Vietnam and the ensuing depletion of gold reserves, Nixon used the power of the presidency to remove the dollar from the gold standard, thereby allowing the dollar to become the reserve currency of the world. Reagan tried to shore up the falling rate of profit by effectively gutting regulation of most major industries through executive order. However, these and other examples do not explain the need for concentrating power in the presidency, as Congress often went along with such measures either directly or in slightly modified forms. Further, even though the standard of living of the American working class has been under unrelenting pressure for decades, there has not been mass rebellion and discontent. 

Perhaps the explanation is no more complex than that, after September 11, Cheney saw an opportunity to use the crisis to advance a less benign ruling structure in the U.S. The U.S. ruling class is not monolithic and various factions differ on the necessity of increasing autocratic rule. However, there certainly must be an awareness that as the economic pressure on the working class increases and as the needs of the national security state (both in channeling working class taxes to the profits of the military industrial complex and in maintaining U.S. world hegemony) consume more resources needed by the populace, the ruling class will no longer, in Noam Chomsky’s and Edward Herman’s memorable analysis, be able to "manufacture the consent" of the people. When that happens, and the signs of resistance are clear in the opposition to the Iraq war and the difficulty of the military in recruiting enough people to maintain its forces, Constitutional government may be discarded and autocratic rule could be fully implemented. The mechanisms of the imperial presidency allow for the step by step increase in autocracy, whether in a Republican or Demo- cratic administration. 

There is no doubt that Bush is conscious of the need for continuity. Bush has been quietly advising the Democratic candidates on national security issues and has been consciously "institutionalizing controversial anti-terrorism programs so they can be used by the next president." In an interview with journalist Bill Sammon, Bush specifically cited the Guantánamo detainee program as precedent, believing the next White House occupant will "find it is necessary. But my only point to you is that it was important to me [Bush] go lay it out there, so that the politics wouldn’t enter whether or not the program [Guantánamo] ought to survive beyond my period." Ultimately, the needs of empire will dominate over any semblance, in form or reality, of democratic government. 

Takeover does a masterful job of explaining the legal mechanisms and political maneuvering developed by Cheney, the Federalist Society, and related parties to concentrate power in the president. For those who want to know how Constitutional government is being subverted, Takeover is an essential source.

 

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Jeffrey Frank is a Chicago attorney/activist representing anti-war protestors and military counter-recruiters on behalf of the National Lawyers Guild.