More on executive power

At Too Sense, One Drop makes a point that I tried (unsuccessfully) to in my post on Senator Obama’s and Senator Clinton’s FISA vote:

The problem with the FISA situation is not really that Obama changed his mind and voted for a compromise bill that did less than he wanted it to do. The problem is more fundamental than that, and can be summed up as follows:

Presidents do not relinquish power. [...]

What we do not see, in reviewing American history, is any instances of Presidents refusing to wield the powers that were asserted by their predecessors. An executive power, once claimed, is forever more in the arsenal of the President, unless explicitly stricken by the Supreme Court. The Executive Branch is like any living organism: job one is survival, job two is growth, job three is reproduction. Growth of the Executive Branch is seen in the constant process of pushing the boundaries of Article II powers, stretching things as far as possible. Reproduction is seen in the endless spawning of new federal agencies, new cabinet posts.
Even assuming that Obama is elected, there is nothing in the historical record to suggest that he is likely to repeal any of the powers claimed by President Bush. That has never happened before with any of the 42 Presidents that have succeeded George Washington. We can hope for greater discretion on Obama’s part, more self-restraint, sounder judgment, but it is not realistic to believe that he will set out to purposely diminish the power of the office he holds.

It’s terribly unrealistic to expect any executive to willingly relinquish new powers; and that’s precisely the reason why we have a legislative branch.  It’s supposed to act as a check on the executive’s inevitable attempts to accumulate power.  Unfortunately, for the past decade or so, the legislature has refused to exercise it’s power as a co-equal branch of government.  In my eyes, Congress bears more responsibility for the surveillance state than the Bush administration does; a bit of institutional parochialism is probably all it would have taken to stop Bush from overreaching.  As we saw, the Republican Congress was all too eager to roll over for the Bush Administration, and unfortunately, I expect that a Democratic Congress will do the same for a President Obama (though, if Hillary Clinton’s actions and statements are any indication, she might be interested in taking back power for the Senate). 

Though, it’s certainly understandable as to why Congress tends to be deferential towards the White House.  For one, the decisions Congress should make – the ones dealing with national security and defense issues – are difficult.  There often isn’t a clear answer, much less a right one.  It’s far easier to simply let the executive decide, and deal with the fallout.  Moreover, with partisanship at a relative high (which for the record, I don’t think is a bad thing), with the state-level parties becoming more akin to subsidiaries of the national party, and with the legislature becoming more parliamentary in style (straight party-line votes are the norm these days), it seems that there is a lot more congruence between the interests of congressional leadership and the White House, then there was before.  In that kind of atmosphere, you couldn’t possibly expect Congress to oppose the executive, especially when they come from the same party (again, the Republican-controlled Congress played lapdog to the Bush administration).

At this point, there simply isn’t any advantage to acting in ways contrary to your own party, especially on an issue which is seen as important (for whatever reason).  If we want our legislators to stand up for themselves, or if we want our executives to think twice about claiming a new batch of powers, we (i.e. ordinary people) need create incentives for them to change.  Otherwise, we should expect more of the same.