What Would Livia Do? (WWLD)

Via War and Piece, the Guardian interviews HRC on presidential power:

Hillary Clinton would launch a policy review as president with an eye towards giving up some of the executive powers accumulated by George Bush, she tells Guardian America in an interview today. . . Ms Clinton said the president and Dick Cheney both had taken actions “beyond any power the Congress would have granted” and – even when congressional authorisation was possible – chosen not to pursue it “as a matter of principle”.

“The power grab undertaken by the Bush-Cheney administration has gone much further than any other president and has been sustained for longer,” she said. “Other presidents, like Lincoln, have had to take on extraordinary powers but would later go to Congress for either ratification or rejection.”


Ms Clinton said the accumulation of executive power had put America into “new territory” because Mr Bush and the vice president had taken the view that were what previously extraordinary powers were now inherent powers that belonged to the White House.

“I think I’m going to have to review everything they’ve done, because I’ve been on the receiving end of that,” she said. Ms Clinton stated it was “absolutely” conceivable that, as president, she would give up executive powers in the name of constitutional principle.

“That has to be part of the review I undertake when I get to the White House, and I intend to do that,” she said.

Let’s concede the contingent nature of it all. Candidly, hypothetical non-commitments to a Brit paper are less binding even than fluff offered to the concierge of the ‘Situation Room’ (God help us all). We think there are at least three overarching reasons to be skeptical: first, the non-functioning of the other 2 branches of government; secondly, the convenience of power when used for ‘good’ (situationally defined); and third, the Stiftung’s skepticism that the American people ultimately want this to happen (unfortunately).

In short, don’t hold your breath.


It’s 2009. Let’s imagine HRC’s review is complete. All the attendant publicity is underway. Where are the other two independent branches of government? Are they ready to receive back their constitutional due? We see little evidence. Congress’ failings as a co-equal branch 2001-2007 are well known. Nothing since 2006 indicates a change in party revives its sense of larger purpose. Why would this change in 2009?

Republican animosity to HRC may revive interest in using congressional power destructively again; perhaps first as means of re-gaining power. But political energy activation states and obstructionism, by themselves, are not the same as co-equal government. Gridlock is not another word for separation of powers (albeit sometimes a by-product).

So, not to put too fine a point on it, a grant back by the Executive to a diminished Congress really cedes nothing in the end. It is a cheque given knowing it will never be cashed.

The Judiciary is the polar opposite. The Movement’s agenda remains driven by ideological energy and purpose. A Roberts Court will continue to narrow standing and other jurisdictional matters. Jurisprudence is rolling back to the late 1950s if not to the so-called Lockner Era itself. On their own the Federalists and Warlord appointees at all levels from district court on up will continue to remold the judiciary from within. The guiding ideological roadmap will continue to be “The Constitution In Exile” movement. HRC appointing two new Justices at least might arrest some of the decay. But it will be years – if ever – before the Judiciary is returned to its pre-radicalized state.

So one must ask, knowing what we know of HRC, how realistic is such a surrender of expansive Executive powers? Can one really believe there will be much discontinuity in National Security State imperatives, such as the DNI making the exact same arguments for a ‘PROTECT ACT’? Or seeking telco immunity? Would HRC truly stare the permanent apparat down? Can HRC afford to be any less extreme (if not more so) on homeland security? These are separate questions than her actual foreign policy choices such as deployments in the Middle East, etc. (watch out Iran).

The Stiftung also questions whether the American people want a return to balanced constitutional government. We speak of the broad society rather than the netroots or high media consumers. If we are right, in the eyes of the American people reflected by the approval ratings, the Warlord failed because of incompetence, not the regime’s project itself. What happens once focus groups and polling data come in validating this assessment? What advice will Mr. Triangulation offer? He said in 2004 that the American people want strong and wrong versus weak and right.

HRC might well be forgiven for thinking, WWLD?