Article II and the 2008 Campaign:
Given that many people approach questions of constitutional law with an eye to their political implications, does anyone want to guess how Hillary Clinton's announcement that she is running for the Presidency in 2008 will influence debates on the scope of Executive Power?
Kent Scheidegger (mail) (www):
How would an observation that the sun rose in the East this morning influence a discussion of solar energy? Not at all, as there was never the slightest doubt it would happen.

[OK Comments: Kent, can you explain a bit more what you mean by that?
1.21.2007 11:54pm
MikeC&F (mail):
The conservative speakers from this seminar, will suddenly rediscover limits on Article II.
1.22.2007 12:07am
I certainly would trust Hillary and friends to open my mail, intercept my calls, review my library records and put my credit information and purchasing history into their databases. Wouldn't you?

Oh, and I would support Hillary's right to imprison American citizens for years without charges so long as she assures me that the person did something bad.
1.22.2007 12:21am
Forgot to add:

After all we are at war (still) and 9/11 changed everything.
1.22.2007 12:22am
MS (mail):
If you purchased a gun last year, or have ever protested outside an abortion clinic, you might be an unlawful enemy combatant.
1.22.2007 12:29am
Q the Enchanter (mail) (www):
Well, there is a number of principled distinctions that could be drawn here in support of a more limited executive power were Clinton to serve: (1) Clinton is a woman; (2) she is a spouse of a former president; and (3) she would serve after Bush leaves.
1.22.2007 12:42am
eric (mail):
Orin: I think Kent means everyone knew that Clinton was going to run, so any influence on the discussion would have already manifested itself.
1.22.2007 1:04am
Elliot Reed:
Q - excellent points. But I think you may have forgotten principled distinction 4: Clinton is a Democrat.
1.22.2007 1:41am
fishbane (mail):
I wonder in what way Clinton as President differs from, say, Huckaby, Obama, Gingrich, Edwards, or McCain? (Or any of the others.)

Certainly, there have been lots of constitutional questions raised by the current administration. In what way does Clinton make them more interesting than her competitors?
1.22.2007 2:01am

I wonder in what way Clinton as President differs from

If Chelsea got on the ball, she could be a grandmother?
1.22.2007 2:26am
mr. meade (mail):
I've always wondered how the apparently-new Presidential powers will be viewed as part of an administration of the opposite party. The Fear-of-Hillary and the We-Support-the-President mindsets have been a long time coming toward a resolution of their differences. Someone hinted at this above, but could all the church leaders and roadside cafe owners that weren't helpful in hunting Eric Rudolph be held indefinitely for their support of terrorism? Unfortunately I don't see why not. And they won't even have Habeas to fight back with. At least it's not necessarily a proven point that they positively do or do at all times, if I recall our Attorney General correctly.

But on a lighter note, I look forward to a Presidential spouse who has a cause other than illegal drugs, literacy, dinner parties, horoscopes, anorexia, and ugly dresses. Bill as First Dude will be awesome. Beer, babes, and barbeque beats birth defect and cancer research any day of the week.
1.22.2007 7:03am
AppSocRes (mail):
Has everyone forgotten how the confidential FBI records of many senior Republican appointees were illegally diverted to the Clinton White House? How the diversion was tracked to a low level operative reporting to Hillary Clinton? How Hillary performed the standard Clinton cover-up? How the MSM treated it all as a big joke? How there were several other operations like this that were traced to Hillary, but hardly mentioned by the MSM?

My concern with another Clinton in the White House is not that she would use Presidential powers against the would-be enemies of this country (as Bush has with some success), but that she would use them to target her personal and political enemies, while ignoring the interests of the country as a whole. Any reason to suspect that she's changed in any way over the past eight years?
1.22.2007 8:00am
Loki13 (mail):
I, for one, welcome our new Hillary overlord.

On a serious note, it ha been portrayed in several accounts (sorry, I don't have the cites handy right now) that Mr. Cheney's overarching goal has been the restoration of executive power to some halcyon day that only he seems to remember (pre-Youngstown, perhaps?- slight snark). What I think he forgets is that the loss of executive power was not really a statutory loss, or even an interpretive loss (from a Constitutional standpoint), but a loss of trust that came after Watergate, and the actions of this administration with the increased powers given them after 9-11 has not increased the trust level with a large segment of the American public.

It is an open question as to whether Mr. Cheney believed there would be a permanent Republican majority (the bill of goods that Mr. Rove was selling), or truly believed that from a Constitutional point of view, we are better served with a strong (and, apparently, unchecked) executive, even if the executive has policies that are contrary to your political purposes.

I do not believe that many of the people who so eagerly defend the expansive powers claimed by the President will be happy to see them employed by a Democratic President.

Especially President H. Clinton.
1.22.2007 8:21am
noone (mail):
I think OK was getting at the following (the crux of the "executive Power" debate):

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years....

I thought this blog had a few textualist commenters...
1.22.2007 8:24am
That sort of vague, unsubstantiated claim could be made about any administration. The idea that Clinton is any more likely to use executive power for political reasons than any politician strikes me simply right wing spin. Anyway, republicans should have thought through the whole transition of power thing before they decided attempt to transform the president into a benevolent dictator.
1.22.2007 8:37am
Anderson (mail) (www):
I thought this blog had a few textualist commenters...

Right. We gave them the vote, but not qualification to run for office.

Pity that we didn't pass the Nineteenth in Scalia's day, so we could read his blistering dissent from the op by Souter or Ginsburg holding that the right to run for office is somehow implicit in the right to vote. Thomas's would be worth a laugh as well.
1.22.2007 9:09am
Just an Observer:
I am not aware of any candidate from either party who so far has staked out a firm position against aggrandized executive power. Maybe they think it would sound unpresidential.

Sen. Clinton last year gave a speech to the American Constitutional Society that was full of rhetoric condemning Bush for warrantless surveillance. But in a clever, triangulating way, she stopped short of saying that the president lacked exclusive powers in this area. She seemed to be saying, "If were president I would certainly excercise such powers more reasonably and sparingly."

Sen. McCain has never openly opposed Bush on issues of executive authority, although he has differed in a nuanced way on some other discrete policy issues related to the "war on terror," primarily in the area of torture and cruel treatment of prisoners.

I do agree with some observations above regarding the political position some "conservative" commenters will take toward the issue. But I don't think they will change their stripes unless and until the White House is actually occupied by a Democrat -- especially Clinton, whom they seemingly regard as a cross between Cruella DeVille and the Bride of Satan.
1.22.2007 9:40am
Just Dropping By (mail):
"I am not aware of any candidate from either party who so far has staked out a firm position against aggrandized executive power."

Rep. Ron Paul (who has an exploratory committee) certainly has a voting record, and a history of strong public statements, against expanding executive power.
1.22.2007 9:53am
Pete Freans (mail):
A spirited debate took place last Thursday between AG Gonzales and Sens. Spector &Leahy regarding the suspension of the Great Writ (Habeas Corpus, Article One Section 9). Sen. Leahy became especially unhinged when the topic of rendition arose with Canadian citizen was shipped-off to Syria. I think CSPAN.ORG provides a webcast of it and it's worth a gander.
1.22.2007 10:05am
I think the Right's support of Bush on Article II powers has been a matter of inter arma enim silent leges combined with "we trust him to skirt the law carefully". Their opposition to Clinton's exercising the same powers is consistent with their distrust of her.

Underlying this is a real change from claiming to see the president as 'the President' to admitting that we see him or her only as the person holding the office. It was always a myth, but myths have real power.

For the record, I (Cautious, not Conservative) maintain that Bush misunderstands the office of Commander-in-Chief; it is not part of the presidency but a separate office, subordinate to Congress's power to regulate the military, whose only qualification is that its holder also be President. For this reason, acting as C-in-C has no effect on the President's powers. But if it did, it would be to reduce his independence.
1.22.2007 10:08am
Will Hillary take her husband's point of view on Art. II, Sect. 2 or the current crop of democrats' view of that section (Harry Reid saying Bush has to go to them, Art. 1, Sect. 8, before taking on Iran)?
1.22.2007 10:08am
Anderson (mail) (www):
Leahy became "unhinged"? Reasonable minds may differ.

Our dimly servile Beltway crew can't have it both ways, after all. If Syria is such an odious regime, well, when you send someone there via rendition, you damn well know it's so they can be tortured, no? Gonzalez pitiably punted, and Leahy promised hearings on the Maher Arar matter if convincing answers aren't forthcoming w/in the week. More of this, please.

This was a bit too much for AG AG's circuits; I kept expecting smoke to come from his ears and his voice chip to loop on "Quaint! Quaint! Quaint!" until he melted down completely.
1.22.2007 10:21am
JosephSlater (mail):
I agree with PersonFromPorlock's reasons, but would add that some on the Republican/right-wing side really believed the spin of Rove and others that the Republicans had achieved a permanent majority status. The 2006 results shouldn't make us forget that this was actually an article of faith in some quarters (see also redistricting, the K street project, etc.) Thus, the idea that the Dems would be in charge some day with these sorts of powers didn't seem much of a worry.

Having said that, I don't think Hillary will be elected President in 2008. It's fun to bring up her name in this context, though, given the irrational hatred for her in some quarters.

Speaking of which. . .


You left out the part about Hillary killing Vince Foster. After all, if some folks on the right accused Hillary of doing something wrong, the accusation must be true.
1.22.2007 11:06am
Joseph Slater:

I'm not sure how "irrational" my dislike of Sen. Clinton is, but it dates back to an observation I made to a friend back in 1992: that I knew nothing about the new First Couple and I wished them well, but her face in repose bore an expression I'd never seen before on a human being, only on the sort of cat no sane person puts a hand near....

Apologies to Orin Kerr for wandering a little OT.
1.22.2007 11:42am
Kent Scheidegger (mail) (www):

I simply mean that an announcement has no effect on a debate when everyone knew that it was coming. Does the stock market react to a company's earning announcement if it comes in exactly in line with what the market was expecting? No. The increase or decrease in earnings, if expected, was already priced into the stock.

Did any observer of the political scene have the slightest doubt that Hillary would run for President in 2008?

1.22.2007 11:48am
markm (mail):
I've been beating the "What would a Clinton do with that power" drum ever since Jose Padilla was locked away by lettre de cachet. OK may be exaggerating just a little; the chances of Hillary formally running for President aren't quite the same as of the sun rising, but they are about the same as that a non-blind resident of Phoenix, Arizona can see the sunrise by facing the east horizon at the appropriate time. That is, it was going to happen unless something large, unexpected, and rather horrible[1] intervened.

[1] Aside from people who'd think something horrible happening to her wasn't horrible at all...
1.22.2007 11:52am
Derrick (mail):
My biggest reason for my anticipation for a Hillary presidency is to witness the first interview of John Yoo after Hillary takes some strong stand on her presidential powers. The contorting and hypocrisy that I except from Prof. Yoo maybe worth the price of admission.
1.22.2007 12:07pm
JosephSlater (mail):

I wasn't accusing you of being irrational, and in fact I started out by saying I agreed with you.

On the other hand, while I'm far from being Hillary's biggest fan, it's hard to classify this as a rational reason to dislike a politician:

her face in repose bore an expression I'd never seen before on a human being, only on the sort of cat no sane person puts a hand near.
1.22.2007 12:12pm
JunkYardLawDog (mail):
I see nothing but comments from anti-Bush anti-Strong Article II war powers people above all *projecting* onto the pro-Bush or pro-Strong Article II war powers people their own self-knowledge that they are hypocrites who would easily talk out of both sides of their mouths on this or any other issue, and their expectations therefore that those who have supported the strong Article II presidential powers will behave as they know they themselves would do and change their arguments in the future.

Problem is that the "projections" of all you liberals above are not joined in by any pro strong Article II powers. I will continue to support strong Article II presidential powers because its the right thing to do. Doing the right thing might be a concept that is foreign to all the posters above who choose to project their own failings onto others, but it does exist in the people you have no clue how to understand.

Says the "Dog"
1.22.2007 12:19pm
JosephSlater:'s hard to classify this as a rational reason to dislike a politician

Lincoln's "any man over the age of forty is responsible for his own face" comes to mind.
1.22.2007 12:26pm
arf, arf, arf inasmuch expectations projections concept hypocrites failings arf arf arf
1.22.2007 12:42pm
Thanks, Kent. I suspect you're wrong, though: It's human nature to discount something that you know is coming just because it isn't quite there yet. It may be that we knew Hillary would run, but I suspect that repeated news stories about what Hillary would do if elected will change the terms of the debate for at least some people.
1.22.2007 12:46pm

Who are "you liberals"?
1.22.2007 12:47pm
Q the Enchanter (mail) (www):
Of course you're right Elliot; my list was merely intended to be illustrative.
1.22.2007 12:57pm
JunkYardLawDog (mail):
OrinKerr to the "Dog"

Who are "you liberals"?

A complete list maintained in Dick Cheney's credenza can't be repeated here for national security reasons, but I believe I was trying to put a label on most of the commenters that posted before me.

Says the "Dog"
1.22.2007 1:20pm
Mark Field (mail):

Thanks, Kent. I suspect you're wrong, though: It's human nature to discount something that you know is coming just because it isn't quite there yet.

It's not until you're about to be hanged that your mind really focuses.
1.22.2007 1:33pm
Pete Freans (mail):
Leahy became "unhinged"? Reasonable minds may differ.

Where is the Democratic passion against Iranian influence in Iraq, North Korean defiance, or Russian complacency with civil rights?

But more to the professor's point: I assure you that Sen. Clinton will not propose any legislation that will constrain the executive branch (i.e. a revised War Powers Act with teeth). Which presidential hopeful with legislative powers will dare?
1.22.2007 2:09pm
Pete Freans (mail):
ADDENDUM: As far as I can discern, not even Congressman Kucinich advocates narrowing the scope of Article II.
1.22.2007 2:19pm
Loki13 (mail):
Pete Freans,

It helps to look beyond the first page:

To quote,
"To allow our Bill of Rights to be nullified without judicial supervision invites tyranny. The Attorney General has been handed unfettered power to wiretap, search, jail, and invade our most sacred right to privacy. The government must not be allowed, without probable cause or warrant, to snoop on our communications, medical records, library records, and student records.

The recent disclosures of the President's refusal to follow the FISA law should worry all Americans concerned with the dangers posed by a too-powerful executive. We elect Presidents, not kings, and no president is above a clearly written law expressly curbing his powers."
1.22.2007 2:27pm
Loki13 (mail):
Kucinich may be an unelectable flaming liberal,

but at least he's a consistent unelectable flaming liberal.

Have to admire him for his convictions. Even if he's a little weird.
1.22.2007 2:29pm
Just an Observer:
Okay, Dennis Kucinich and Ron Paul have put a stake in the ground. I confess that I do tend to overlook the apparent also-rans. Al Gore is clearly on record against warrantless wiretaps, as well, but he insists he is not a candidate. Russell Feingold's position is clear, but he has taken himself out of the running.

(BTW, Pete Freans, I reject your characterization of such positions as "narrowing the scope of Article II." Rather, they oppose an expansion.)

Among the front-runners of either party, I am still looking for some promise that they foreswear the kind of expanded executive power the incumbent claims for himself.

I also am looking for a candidate who promises a good-faith treatment of the constitutional duty to "see that the laws be faithfully executed." Bush 43 plays a cynical game, making novel claims of a constitutional power but doing everything he can to avoid testing those claims in court. That projects about as much moral weight as a fugitive.
1.22.2007 3:36pm
The cat:
So your position is that anyone who wants to limit the power of the government is a 'liberal'?
1.22.2007 3:51pm
David Maquera (mail) (www):
Anyone who thinks President Bush is doing anything more than past Presidents (regardless of party affiliation)is living in fantasyland.
1.22.2007 7:29pm
Just an Observer:
David Maquera,

FISA was in place for the administrations of each of Bush 43's four predecessors. Please enumerate and document the instances where the statute was violated by each of them.
1.22.2007 7:44pm
JunkYardLawDog (mail):
Thomas Hewitt Edward Cat,

Of course not.

Says the "Dog"

And since your question and salutation were so lame. 10 Points to anyone old enough to get the Thomas Hewitt Edward Cat reference.
1.22.2007 11:36pm
Sort of a side question:

I'm pretty much a cynic regarding the American voter, and I've been wondering if the Democrats are pretty much giving up the 2008 race before it starts. I don't think this country is ready for a black president or a woman president.

Frankly, I find it a little embarassing, but I think it's the reality of our country. A substantial percentage of women in the US think a woman can't be an effective leader.
1.23.2007 10:39am
"does anyone want to guess how Hillary Clinton's announcement that she is running for the Presidency in 2008 will influence debates on the scope of Executive Power?"

Certainly John Hinderaker at Powerlineblog will find the scope of Executive Power magically smaller
1.23.2007 2:27pm