History is littered with onetime revolutionaries who grew disillusioned as they watched events snowball into something they’d never intended. In the 1980s the Reagan Revolution brought a new generation of Republican legal activists to Washington determined to help the President reshape the nation in his conservative vision and to overcome the main obstacle to his agenda: Democrats in Congress. Many of these ideologically committed lawyers found jobs in the Justice Department, which–especially after 1985, when Edwin Meese took over as Attorney General–actively sought innovative legal theories and tactics to help Reagan achieve his policy ends unilaterally. The tools for expanding presidential power they developed two decades ago were taken up by the George W. Bush Administration, which has wielded them in far more aggressive ways than their inventors imagined. Now several of the most important veterans of the Reagan Revolution say the Bush team has gone too far.
One novel strategy pushed by the Reagan legal team was frequently issuing signing statements–official documents from the President laying out his interpretation of new laws. During Reagan’s second term, the Justice Department’s Office of Legal Counsel proposed making this previously rare device into a routine tool in order to increase the President’s power over the law. The office was then headed by Douglas Kmiec, now a law professor at Pepperdine University. Years later, the use of signing statements would take a second exponential leap. Bush has used the device to challenge the constitutionality of more new laws than all previous Presidents combined–most of them checks on his own power–while going nearly six years before vetoing a bill. Surveying this development, Kmiec last year joined a chorus of critics who said the Administration’s legal team was misusing signing statements. Kmiec acknowledged the Reagan team’s role in inflating the mechanism, but he insisted that they had used signing statements only for a much more modest purpose: to leave a record of the President’s understanding of ambiguous laws for judges to consult during any future litigation. Kmiec rejected Bush’s practice of using signing statements to instruct the executive branch to contradict the clearly expressed will of Congress, saying that a President instead ought to veto laws he dislikes. “Following a model of restraint, [the Reagan-era Office of Legal Counsel] took it seriously that we were to construe statutes to avoid constitutional problems, not to invent them,” Kmiec told me. He added, “The President is not well served by the lawyers who have been advising him.”
The creative minds of the Reagan legal team are also responsible for inventing the “unitary executive” theory, which argues that it is unconstitutional for Congress to pass laws that fracture the President’s control of executive power. One of the most important Reagan lawyers to develop the theory was Steven Calabresi, a co-founder of the Federalist Society who joined the Justice Department in 1985 and–despite a Supreme Court ruling that decisively rejected the theory in 1988–went on to spend his career writing scholarly articles about it. Now a law professor at Northwestern University, Calabresi has watched with astonishment as the Bush legal team has invoked the unitary executive theory when claiming that the executive branch is beyond the reach of Congressional regulation across a whole range of matters related to foreign affairs and national security. Citing the theory, the Bush team has asserted, for example, that military and CIA interrogators should obey the instructions of the Commander in Chief, not anti-torture statutes enacted by Congress, when questioning prisoners. Calabresi said he does not recognize the unitary executive theory as Bush is using it; the Reagan team, he said, was focused on comparatively tame issues, such as whether Congress should be able to give agencies like the Federal Reserve total independence from the White House. When I interviewed Calabresi in January while researching a book on executive power, he told me that the extra leaps in legal logic that the Bush team has undertaken to enhance the theory are “very debatable.” He added that he is “troubled” by several of the Administration’s related assertions of unchecked presidential authority, including its imprisonment of US citizens without charge and its determination to prosecute terrorism suspects before military commissions instead of life-tenured judges. The presidency’s powers “are not nearly as sweeping as have been asserted by this Administration,” Calabresi said.
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To be sure, Kmiec and Calabresi remain staunch conservatives and have defended other Bush policies. But they are not the only Reagan-era veterans to find themselves breaking with the Bush legal team. Robert Turner, a political appointee who worked in Reagan’s White House and State Department, told me that he believes a recent Bush executive order setting rules for CIA interrogations was deliberately written to allow war crimes. Reagan’s FBI Director, William Sessions, has condemned Bush’s warrantless wiretapping and his expanded use of signing statements, and he recently wrote in a pointed newspaper op-ed that “we cannot forget that our country’s Framers intended that no single person would have complete and unilateral control over our government.” Bruce Fein, a Reagan Justice Department official who also worked for the Congressional staff helping Representative Dick Cheney defend the White House during the Iran/contra scandal, has pilloried the Bush Administration over its power grabs and called for Vice President Cheney to be impeached for “his sneering contempt of the Constitution and the rule of law.” The list goes on.
It should come as no surprise that some Reaganites are critical of the sweeping new powers that Bush has asserted: Though it seems almost quaint to note, conservatives are supposed to be suspicious of concentrated government authority. But like many disenchanted former rebels, it is also rare to find a conservative willing, even privately, to consider whether the largely GOP-driven post-Watergate project to expand presidential power may have contained flaws from the beginning, rather than just having recently gone astray. Yet the National Archives houses evidence that at least some on the Reagan team privately expressed worries about what might happen. On April 30, 1986, Meese received an eighty-page, collectively written Justice Department report on executive power. Most of the document urged a redoubling of the now-familiar tactics for increasing unchecked White House authority. But almost lost amid the battle cries, one anonymous contributor cautioned that the short-term political contingencies might be clouding their thinking about the importance of maintaining time-honored checks and balances. “Conservatives traditionally have valued separation of powers because it operates to limit government,” the report pauses to note. “However, some conservatives now are also finding separation of powers frustrating because it is sometimes an obstacle to the conservative political agenda, thereby serving to preserve the liberal status quo. They are thus inclined to make an exception to their usual respect for separation of powers and advocate a very strong president–primarily for the practical reason that an activist conservative currently sits in the White House, and they fear he may be the last.”
In 1986 this expression of quiet caution was drowned out by riotous insurgent fervor. Today, with the policy debates of the 1980s a fading memory and more and more ex-Reagan Revolutionaries rediscovering the virtues of traditional constitutional limits on presidential power, the unknown Cassandra who penned that prophetic warning two decades ago must be thinking: Better late than never.
