Written on Sunday March 9, 2014
One reads in the latest news that Sen. Mark Udall of Colorado has a complaint against the CIA. That agency, he alleges, has been bugging executive sessions of the Senate, and this is an outrage.
Notably, this story has received virtually no attention in the American media. I learned of it from a British newspaper, as I usually learn of Federal Government abuses these days.
This kind of behavior really is an outrage, and on two levels. First, the CIA is supposed to be America’s overseas intelligence agency, keeping tabs on developments in foreign governments and societies such as the impending economic collapse of the Soviet Union or the imminent Russian incursion into the Crimea. It certainly is not to be targeting the United States Senate.
Secondly, the Senate, as one house of a bicameral federal Congress, is theoretically distinct from and independent of the Executive Branch. In fact, despite what one so often hears, Congress was intended to be the paramount branch of the Federal Government—the one charged with making decisions such as whether to use the military to depose Gaddafi. That the president should be siccing his spy agency on the Senate represents the continuing deterioration of our constitutional system.
I concede that I do not know what has passed between Senators Reid and McConnell, on one hand, and the CIA director and/or his elected superior, on the other, about this development. I certainly hope that Reid read someone the riot act. Yet, I doubt it.
We have come to think of disapproval of any presidential behavior as essentially a partisan matter. Democrats approve of Obama and Republicans disapprove, just as Republicans formerly approved while Democrats disapproved of the younger President Bush. It seems that congressional leadership’s mission in its dealings with the White House is always to further party aims.
What ever came of DIA Clapper’s perjury concerning NSA monitoring of American citizens? Asked under oath by Senator Ron Wyden of Oregon, like Udall a Democrat, whether the NSA was monitoring the communications of millions of Americans, Clapper answered in the negative. In response, former CIA contractor Edward Snowden revealed a plethora of state secrets, many of them having to do with abuses of Americans’ dearest rights.
There was a time when someone caught out in such a flagrant lie, under oath no less, would have resigned in disgrace. However, the generation of pols currently in leadership seems to know no such concept as disgrace. Clapper continues merrily along, likely abusing his position in other ways not known, perhaps denying it to Congress under oath.
In a free society, the people’s elected representatives would decide what monitoring was necessary and direct the Executive Branch to implement republican policy. Obviously, the system cannot work that way when the Executive Branch’s highest officials lie under oath in a clear attempt to keep Congress from knowing even in broad outline what is going on.
During the campaign over ratification of the federal Constitution, one of the Antifederalists’ most persuasive arguments was that too much power was being granted to the Executive Branch. Oh no, replied Federalists—notably in James Madison’s immortal The Federalist #51—there would be no such abuses as Antifederalists envisioned. Due to the checks and balances that had been built into the system, the president would not be able to take any particular step without the concurrence of Congress, or at least of the Senate. Most importantly, the people would refuse to reelect officials who had abused their powers.
Executive Branch secrecy and consequence-free lying to Congress short-circuit the Madisonian system completely.
Another notably appalling recent instance of presidential overreach was President Obama’s deigning to make “recess” appointments when the Senate was not in recess. As “recess” appointments, they did not have to be confirmed by the Senate, but instead proceeded directly to the exercise of their offices. The Constitution’s draftsmen assumed that in cases such as this, senators would rise in unison in defense of their corporate prerogatives and thereby force the president to retract his offending act.
What we have in these days, however, is nothing of the kind. Instead, Democrats as a body close ranks around Obama, and the unconstitutionally appointed officials hold their offices as the matter makes its way through the federal courts. It would be difficult to conceive of a clearer violation of the Constitution or a clearer illustration of the way that the contemporary party system has vitiated the Constitution’s checks and balances.
The chief check on the Executive and Judicial Branches, the ultimate reliance of republicans concerned that the Legislative must be the most important branch, was impeachment. Fears of runaway presidents were overblown, the story went, because Congress could in the last resort remove them from office.
Suppose, then, that a president decided to launch a non-defensive war without Congress’s declaration. Congress could remedy such a usurpation via a House impeachment and a Senate conviction and removal from office. Madison’s classic essay rests on the assumption that their self-interest if nothing else will guide congressmen to use this power when warranted to maintain the Constitution’s allocation of powers.
Nowadays, this outcome is virtually unthinkable. So, Speaker John Boehner wrote to President Obama warning him that to launch a war on Libya without congressional authorization would be unconstitutional and would entail serious consequences. Obama did it. It was unconstitutional. No consequences whatsoever befell the president. Why? Because not one Democrat in Congress would have joined in imposing any sanctions upon anyone.
Party is all, the Constitution be damned.
Some of the issues of Executive abuse in the Obama Administration, such as President Obama’s legislative use of signing statements, are literal continuations of his predecessors’ practices. Yet, the trend of the past three presidencies has been one of constant Executive Branch aggrandizement—of each building upon his predecessors’ misdeeds. In the nature of things, presidents’ arrogations of power come chiefly at the expense of the Congress.
Senator Udall, hardy scion of a Democratic political dynasty whose members have held multiple states’ seats in the US Senate, governorships, and Cabinet posts, spoke up. We will see whether he dares to make an issue of CIA spying upon the Senate. If the past be prologue, he will soon yield to party pressure not to criticize the Executive Branch in public.
Kevin R. C. Gutzman is the New York Times best-selling author of four books. These include his latest title, James Madison and the Making of America. Professor of History at Western Connecticut State University, Gutzman holds a bachelor’s degree, a master of public affairs degree, and a law degree from the University of Texas at Austin, as well as an MA and a PhD in American history from the University of Virginia.