Vol. 12 No. 12 (December 2002)

 

THE PRESIDENCY AND THE LAW: THE CLINTON LEGACY by David Gray Adler and Michael A. Genovese (editors). Lawrence, Kansas: University Press of Kansas, 2002. 264 pp. Cloth ISBN 0-7006-1193-2, $40.00. Paper ISBN 0-7006-1194-0, $17.95

 

Reviewed by Neil Snortland , Political Science, University of Arkansas at Little Rock. Email: nesnortland@ualr.edu

 

What was President Bill Clinton's impact on the presidency? Did he enlarge or contract presidential power? What are we to make of his legacy in terms of respect for the Constitution and the law? To shed light on these questions, THE PRESIDENCY AND THE LAW: THE CLINTON LEGACY, in nine chapters, an introduction, and an epilogue, examines President Clinton's unilateral use of military force, his law making by executive order, his various claims of privilege in the face of a relentless Independent Counsel, his claim to immunity from civil suits while in office, his creative use of loopholes in the campaign finance laws, his impeachment fight, and his last minute pardons.

 

To some extent this book presents two approaches to these questions, with the essays by David Gray Adler and Louis Fisher taking a harshly critical view of Clinton and the „imperialš presidency, and the other essays, most notably Nancy Kassop‚s overview first chapter, „Expansion and Contraction: Clinton‚s Impact on the Scope of Presidential Power,š generally avoiding such negative characterizations and providing a more balanced approach to the executive and Clinton‚s impact on the presidency.

 

Kassop‚s first chapter concludes that Clinton's greatest success was in asserting his authority to use military force without asking for Congressional authorization, and using force even in the face of congressional refusal to authorize it. She thinks that Clinton's reliance on his powers as commander-in-chief to take unilateral action was not much different than previous presidents, but that his various constitutional and legal justifications for his authority left a record that gives "a formal, legal underpinning for what had previously been adopted primarily in practice."

 

In „Clinton, the Constitution, and the War Power,š Adler condemns Clinton's expansion of unilateral war powers. He carefully examines and rejects the various constitutional and legal claims to the unilateral use of military force by the president. These assertions of authority violate the Framers' understanding of the roles of the executive and the legislature, with Congress having the sole and exclusive power to initiate hostile military action. Consequently, Clinton's 1993 and 1996 cruise missile attacks on Iraq, his 1993 use of military force in Somalia, his threat in 1994 to invade Haiti, his approval of  NATO air strikes in Bosnia in 1994 and 1995, his 1998 missile strikes in Afghanistan and Sudan, and his 1999 use of air power in Yugoslavia were usurpations of the legislative power.

 

According to Adler, the arguments for the president's war power rest on a mistaken understanding of the commander-in-chief clause and the executive power clause, as well as Justice Sutherland's flawed "sole organ in foreign affairs" dicta in UNITED STATES v. CURTISS-WRIGHT (1936). Adler rejects Clinton's use of the right to self defense to attack Iraq with missiles because the president's power of self-defense "pivots on an invasion of the United States" and thus "does not extend to foreign lands." He believes that Clinton's inversion of the War Powers Resolution into an acknowledgment of the president's right to invade Haiti on his own authority did great violence to the Resolution, which was an attempt to restrict presidential use of military force. He also rejects Clinton's reliance on NATO, the UN Charter, or UN Resolutions as sources of war-making authority that allow the president to bypass Congress. He argues that extra constitutional bodies cannot replace or command the Congress.

 

Moving beyond the war power, Kassop finds that Clinton was successful in his aggressive use of executive orders to avoid partisan roadblocks in Congress and unilaterally advance his policy agenda of reversing the abortion restrictions of Republican administrations, setting employment and trade policy, and creating an environmental legacy. A major accomplishment came in 1995 when he saved the Mexican peso by authorizing $20 billion in loan guarantees from the Exchange Stabilization Fund in the face of considerable opposition in Congress, and despite charges that his executive order violated the purposes of the Fund. Of Clinton's 364 executive orders, only one was overturned in the courts.

 

Kassop concludes that Clinton did manage to diminish some presidential powers. Clinton's decision to litigate claims of presidential immunities and privileges narrowed the protection of such privileges for future presidents. In „The Clinton Legacy: An Old (New) Understanding of Executive Privilege,š Mark J. Rozell makes essentially the same judgment, stating that "White House efforts to obstruct and delay justice for the sake of some perceived political advantage cynically undermined both the privilege and the principle" and thus "gave executive privilege a bad name." He thinks that the legacy of Clinton‚s "mostly bogus" claims will be to harm the sometimes legitimate presidential claims to secrecy.

 

Clinton's refusal to settle a lawsuit also may have unfortunate consequences for future presidents. Evan Gerstmann and Christopher Shortell think that, in CLINTON v. JONES (1997), the Supreme Court did not properly appreciate the price that a president may have to pay in responding to a civil suit, and that if they ever revisit the case, the Supreme Court should provide greater protection to the president.

 

Another area of contraction, according to Kassop, involved the appointment power. Senate Republicans played hardball politics to lessen Clinton's ability to make appointments. Especially after the 1994 election, Clinton experienced difficulty in getting his judicial nominees confirmed despite his choice of many moderate nominees and his willingness to cooperate with Senate Republicans.

 

Impeachment was one area that probably was a „drawš in terms of expanding or contracting presidential power according to Kassop. Adler and Kassop‚s „The Impeachment of Bill Clintonš questions whether Clinton's lies and cover ups concerning his sexual affair with a White House intern were the grave and serious offenses that would justify the use of the impeachment power. Given Adler's views of Clinton's usurpation of the war making power, perhaps this would have been a more appropriate area for articles of impeachment.

 

Clinton's controversial last-minute pardons left the pardon power „tested but intactš according to Michael A. Genovese and Kristine Almquist. Because the Constitution gives the president a virtually unrestricted pardon power, there was nothing that could be done about Clinton's bypassing of the usual Department of Justice procedures.

 

Was the permanent end of the Independent Counsel another legacy of the Clinton presidency? Robert J. Spitzer sees scandal as part of every administration, and when another major scandal erupts the Congress and the public will not trust the Attorney General to investigate because of his politically precarious and dependent relationship with the president. These events will force the return of the Independent Counsel. Spitzer concludes that, on balance, we are better off with than without Independent Counsels.

 

Clinton regarded his presidency as a continuous political campaign, and that style of governing led him to seek creative ways to match the Republicans in the money race. Victoria A. Farrar-Myers examines „Clinton‚s Legacy for Presidential Campaign Finance,š and concludes that Clinton‚s exploitation of the presidency to raise political funds created the new presidential role of "fundraiser in chief." The flaws in using the presidency as a fund raising tool are the enormous amount of time added to the president's schedule and the appearance that the president represents the moneyed few more than the nation as a whole, the very concerns that helped to get McCain-Feingold into law.

 

In a concluding chapter, „The Condition of the Presidency: Clinton in Context,š Adler reviews presidents from Truman to Clinton and finds a record of  "aggrandizement, usurpation, and abdication" that has built modern presidential government and created "an assault on the rule of law," seriously damaging the separation of powers. Congress is far too willing to give a president a blank check in the face of a crisis, as with the Use of Force Resolution after the attack of September 11, 2001. Similarly, the courts have been too cautious or simply unwilling to effectively check presidential power grabs. Given President Bush's enormous authority after September 11, Adler concludes that Clinton did no damage to the "plebiscitary or imperial presidency."

 

Louis Fisher‚s „Epilogue: Constitutional Violence,š also concludes that the trend is toward presidential conduct that "is uninformed and undirected by statutory and constitutional constraints," with Congress dreaming up ways of surrendering power (e.g., the item veto) or failing to fight off encroachments (e.g., the war power). Constitutional violations do not alarm the public, and when executive branch officials are caught in illegalities, they figure out how to avoid getting caught rather than obey the law. Fisher, like Adler, traces these alarming trends from Truman in Korea onward, with Nixon, Reagan, Bush, and Clinton doing the greatest harm to separation of powers and the rule of law.

 

I wonder why Fisher and Adler did not start with Franklin D. Roosevelt rather than Truman. For example, the Destroyer-Base Deal was based on dubious statutory authority and ordinarily should have been dealt with by congressional action or a treaty (Kelly 536). Or, less well known, in September 1941, Roosevelt unilaterally authorized a "shooting war" in the Atlantic against German submarines (Kelly 538).

 

What are we to make of Adler and Fisher‚s complaints about Congress and the courts having shown insufficient resistance to the growth of presidential power? What could change the constituency-centered culture that makes Congress assertive largely with foreign policy issues that have major domestic policy impacts or during unpopular wars? How likely is it that the Supreme Court, as Adler seems to request, return to the "sick chicken" position of SCHECHTER POULTRY CORP. v. UNITED STATES (1935) on improper delegation of congressional power?

 

Would greater congressional and judicial involvement make for better foreign policy?  Assume for a moment that Clinton was right about saving the Mexican peso and stopping ethnic cleansing. If Clinton had asked, would Congress have acted in a timely fashion?

 

Could we realistically return to the Framers' intent, as Adler argues we should? Clement Atlee thought that the American system of separation of powers was designed for an "isolationist state" (Adler 114). Even our early experiences as a nation suggest a greater role for the president than envisaged in 1787. For example, President George Washington unilaterally announced American neutrality, an act that infuriated Thomas Jefferson and led him to solicit Madison's answer to Hamilton's Pacificus essays justifying Washington‚s actions. (Madison‚s Helveticas essay is the backbone of Adler‚s position.) If there was a place for unilateral presidential action when we were a fourth-rate power, our greater global interests and responsibilities today also may require it, at least in some instances.

 

Despite my reservations about the wisdom of embracing Adler‚s conception of a presidency that may be more appropriate for 1787 than today, I found the book to be readable, filled with valuable insights and arguments, and extremely interesting in parts. As a preliminary evaluation of the constitutional and legal aspects of the Clinton presidency, it is a first rate resource, and it would make an excellent supplement in courses in constitutional law or the presidency.

 

REFERENCES

 

Adler, Selig. 1957. THE ISOLATIONIST IMPULSE: ITS TWENTIETY-CENTURY REACTION. Toronto, Ontario: Collier-Macmillan Canada, Ltd.

 

Kelly, Alfred H., Winfred A. Harbison, and Herman Belz. 1991. THE AMERICAN CONSTITUTION: ITS ORIGINS AND DEVELOPMENT, Volume II. (7th Edition). New York: W.W. Norton & Company.

 

CASE REFERENCES

 

CLINTON v. JONES, 520 US 681 (1997).

 

SCHECHTER POULTRY CORP. v. UNITED STATES, 295 US 495 (1935).

 

UNITED STATES v. CURTISS-WRIGHT, 299 US 304 (1936).

 

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Copyright 2002 by the author, Neil Snortland.