McCain embraces Bush's radical views of executive power

The GOP nominee actually complains that it is judicial power that is excessive and is unduly limiting the powers of the president.

Glenn Greenwald
May 7, 2008 4:39PM (UTC)

John McCain yesterday delivered a speech in which he hailed the inspiring constitutional principles of Government on which our country was founded, including the central goal of avoiding excessive, unlimited power in any one branch, secured by checks and balances from the other two branches:

In America, the constitutional restraint on power is as fundamental as the exercise of power, and often more so. Yet the framers knew that these restraints would not always be observed. They were idealists, but they were worldly men as well, and they knew that abuses of power would arise and need to be firmly checked. Their design for democracy was drawn from their experience with tyranny. A suspicion of power is ingrained in both the letter and spirit of the American Constitution. . . .

The executive, legislative, and judicial branches are often wary of one another's excesses, and they should be. They seek to keep each other within bounds, and they are supposed to. And though you wouldn't always know it from watching the day-to-day affairs of modern Washington, the framers knew exactly what they were doing, and the system of checks and balances rarely disappoints.

Sadly, though, McCain lamented that "there is one great exception in our day" to these principles. Surely "the exception" to which McCain refers must be the fact that we've lived for the last eight years under a President who literally has claimed powers greater than those possessed by the British King; whose underlings have promulgated radical and un-American theories literally vesting him with the power to rule outside of the law, who has exploited a political and media culture devoid of "suspicion of power" when exercised by the White House, and who has acted with no meaningful constraints or checks from Congress and virtually none from the judiciary? No, actually, that isn't the "exception" to which McCain was referring at all. Instead:

[It] is the common and systematic abuse of our federal courts by the people we entrust with judicial power. For decades now, some federal judges have taken it upon themselves to pronounce and rule on matters that were never intended to be heard in courts or decided by judges. With a presumption that would have amazed the framers of our Constitution, and legal reasoning that would have mystified them, federal judges today issue rulings and opinions on policy questions that should be decided democratically. Assured of lifetime tenures, these judges show little regard for the authority of the president, the Congress, and the states. They display even less interest in the will of the people.

According to John McCain, then, executive power in the U.S. now is exactly what it should be, perfectly in line with what the Founders envisioned -- except that it is too constrained by a judiciary which "show[s] little regard for the authority of the president." To McCain, the only real problem with our system of checks and balances is that the judiciary has too much power, and the President not enough.

This was exactly the view of the world articulated by George Bush last November when he spoke to the Federalist Society. In that speech, Bush had the audacity to tout the central importance of "separation of powers" and warned that "tyranny" can be avoided only if all three branches "resist the temptation to encroach on the powers the Constitution accords to others." Bush then went on -- just like McCain yesterday -- to lament that our Constitutional framework was endangered not by a President who has seized the defining powers of an autocrat, but rather, by "activist" judges. Not only is McCain's view of presidential powers identical to Bush's, his speech yesterday -- in terms of structure, arguments and even some wording -- was almost an exact replica of the one Bush delivered to the Federalist Society.

Virtually every abuse of the last eight years has its roots in the Bush/Cheney view of the President as Monarch, and John McCain clearly endorses its fundamentals. Indeed, when responding to a questionnaire on executive power circulated to all the candidates by The Boston Globe's Charlie Savage earlier this year, McCain (while paying lip service to nice principles and even taking the extreme position that he would never issue a signing statement) refused to say that there was even a single aspect of Bush's use of executive power that he found unconstitutional or otherwise objectionable:

10. Is there any executive power the Bush administration has claimed or exercised that you think is unconstitutional? Anything you think is simply a bad idea?

McCain declined to answer this question.

By contrast, Obama answered the same question at length, and said:

I also reject the view, suggested in memoranda by the Department of Justice, that the President may do whatever he deems necessary to protect national security, and that he may torture people in defiance of congressional enactments . . .

I believe the Administration's use of executive authority to over-classify information is a bad idea. We need to restore the balance between the necessarily secret and the necessity of openness in our democracy – which is why I have called for a National Declassification Center.

Obama then went on specifically to identify numerous issues -- torture, detention of Americans as "enemy combatants" without due process, warrantless surveillance, violations of international treaties, the lawless creation of military commissions -- which he said were unconstitutional or otherwise objectionable expressions of excessive Presidential power. By contrast, McCain refused to identify even a single Bush assertion of power he rejects.

Ultimately, these are the issues which are the most consequential in determining what type of country we will be, and what type of government we will have (and these issues, therefore, receive the least attention from most of our establishment journalists, for whom there is a perfectly inverse relationship between the significance of an issue and the interest they have in it). All of the other issues of significance flow from these differences.


In a superb new book, entitled The Cult of the Presidency: America's Dangerous Devotion to Executive Power, Gene Healy documents the multiple ways our political system has been corrupted by an out-of-control, unchecked Executive that could not be any more antithetical to the "presidency of limited powers and modest goals the Framers gave us in 1787." As Healy demonstrates, allowing the President to transmute into some central, omnipotent figure of authority -- as Bush/Cheney have done and as McCain seems to embrace -- "is the source of much of our political woe and some of the gravest threats to our liberties," and -- more significantly still -- this model (as the Founders recognized) virtually guarantees a state of ever-expanding militarism and endless war:

Throughout American history, virtually every major advance in executive power has come during a war or a warlike crisis. Convince the public that we are at war, and constitutional barriers to action fall, as power flows to the commander in chief.

Little wonder, then, that confronted with impossible expectations, the modern president tends to recast social and economic problems in military terms . . . . Martial rhetoric often ushers in domestic militarism, as presidents push to employ standing armies at home, to fight drug trafficking, terrorism or natural disasters. And when the president raises the battle cry, he can usually count on substantial numbers of American opinion leaders to cheer him on.

As the amazing commenter Pow Wow repeatedly documents here (see here for one typically excellent example), Congress has "increasingly deferred, dangerously and slavishly, to the presidency, which today very much resembles a monarchy," a state of affairs which -- for the reasons Healy describes -- makes endless war and imperial behavior almost inevitable. As Pow Wow puts it: "The choice for Americans today . . . is between Empire and Republic. We cannot have both."


The central truth of the 2008 election is that, with the exception of a few relatively inconsequential and symbolic matters, John McCain enthusiastically embraces the Bush/Cheney worldview in every way that matters. His ludicrous speech yesterday -- actually complaining that it is the judiciary that wields too much power and is excessively limiting presidential powers -- simply leaves no doubt about that.

Glenn Greenwald

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