Nonprofit, nonpartisan journalism. Supported by readers.


Mondale, NYT reporter Savage analyze limits of presidential power

President Donald Trump displaying an executive order imposing fresh sanctions on Iran on June 24.
REUTERS/Carlos Barria
President Donald Trump displaying an executive order imposing fresh sanctions on Iran on June 24.

New York Times national security reporter Charlie Savage and former Vice President Walter Mondale had an illuminating discussion yesterday about the limits, or perhaps the limitlessness, of the power of U.S. presidents (and especially the current one) to use U.S. military power in the world without explicit congressional authorization and to use domestic spying for “national security” purposes, without constitutional authorization or oversight.

Both men are experts and have followed those issues for years, and they updated their analysis of those issues to reflect the latest (Trumpian) developments.

Speaking at the University of Minnesota’s Humphrey School of Public Affairs, Savage and Mondale portrayed President Trump as operating with disregard for legal and constitutional requirements along these lines, but both also acknowledged that this is nothing new.

Mondale urged the audience to remember a time when senators of both parties were willing to put defending the constitutional allocation of powers ahead of partisan considerations, a tradition that appears to have disappeared in recent years.

Before World War II, Savage reminded the audience, the United States didn’t maintain a huge, perpetual military establishment. After each war, the nation would demobilize. But, as World War II morphed into the Cold War, the line between war and peace became ambiguous. Presidents were granted, or just assumed, vast new powers to operate, covertly and overtly, around the world and to engage in small wars and covert military actions without advance congressional approval, including the overthrow of foreign governments deemed to be on the wrong side of the Cold War.

During the Nixon years, Savage said, Congress took some measures to reassert authority over whether and when the president could use force abroad. But that trend reversed again.

Even before the Nixon years, during the J. Edgar Hoover decades at the FBI, the surveillance state got in the habit of spying, without proper legal or constitutional authority, on thousands of Americans, in the name of fighting communism or other undefinable categories of what Hoover considered “subversive” activities. These Hooverian tactics included extensive improper surveillance of the Rev. Martin Luther King Jr., Mondale said.

Hoover, whom Mondale said was “detached from reality” on the subject of King, wanted to destroy MLK and arrogated to himself the right “to pick a different leader of the civil rights movement,” Mondale said.

During his Senate career, Mondale was very active in defending the civil liberties of Americans, including the right to be free of unnecessary government surveillance. He recalled on Monday an exchange he had during an oversight hearing with Clarence Kelly, after Kelly succeeded Hoover in 1973, about the possibility that FBI surveillance threatened the rights of American citizens to privacy.

Kelly, Mondale recalled, said that “sometimes you have to give up some rights to protect others.” As Mondale described the exchange yesterday, he replied by demanding that Kelly specify “which rights” Americans would have to give up. A flustered Kelly said, “I didn’t mean it that way.”

As Savage sees it, a lot of civil liberties issues that “we thought were settled were reopened” after the terror attacks of Sept. 11, 2001, implying that a frightened America allowed President George W. Bush and Vice President Dick Cheney to again start trading guarantees of freedom for promises of security.

Since then, presidents have acquired vast new executive powers, sometimes called “the imperial presidency.” “The line moves, then moves back,” he said. Some of Trump’s assertions of unprecedented presidential powers are “provoking Congress,” he said, and have sparked renewed discussions of whether and how executive authority in such areas might need to be restrained.

For example, Savage asked, does President Trump have the power, without a congressional declaration of war or any other clear authorization from Congress, to order U.S. bombing of sites in Iran that Trump believes are part of a program to develop an Iranian nuclear weapon?

Whether you think such a bombing mission would be good or bad, you would have to acknowledge that such a pre-emptive strike, which would probably kill Iranians, without prior congressional authorization, would seem to violate the constitutional provision that gives Congress the power to declare war. This is just me talking, but it seems the obvious context for the point Savage (and Mondale) were discussing.

The Constitution gives Congress the sole power “to declare war.” If the United States can bomb a country on which Congress has not declared war, or perhaps explicitly authorized an attack, what meaning is left to the constitutional provision that assigns war-declaring power to that branch?

Savage noted that Attorney General William Barr has, at least in the past, taken the position that such an order from the president, without advance congressional approval, would be legal.

Mondale disagreed with that view (and a plain reading of the constitutional provision on declaration seems to agree with Mondale). He said yesterday: “I think the Constitution expects a president who wants to start a war has to come to Congress for authority to do so. Our founders wanted that to be part of the division of powers. … I think we should not allow a president to redefine the Constitution on war powers. … You should have to go to Congress for that authority, and we’ll all be better off if we do.”

Mondale just sort of stuck up for quaint idea of obeying the Constitution, allowing U.S. democracy to work the way it was designed.

I wish I shared his confidence, but I’ll give him the last word. Professor Lawrence Jacobs, who moderated the discussion, asked whether he thought democracy is in retreat. Said Mondale, pretty forcefully:

“No, I keep hearing these doomsday guesses about where democracy is heading. I think there’s every reason to feel optimistic about it.”

Comments (15)

  1. Submitted by Steve Timmer on 09/17/2019 - 10:47 am.

    “Whether you think such a bombing mission would be good or bad, you would have to acknowledge that such a pre-emptive strike, which would probably kill Iranians, without prior congressional authorization, would seem to violate the constitutional provision that gives Congress the power to declare war. This is just me talking, but it seems the obvious context for the point Savage (and Mondale) were discussing.”

    A pre-emptive strike not justified as self-defense or as part of a mutual-defense pact (e.g., NATO), would also probably be a war crime as the conduct of aggressive war.

    It’s charming in some circles to think that it’s just a debate between the president and congress whether we can bomb somebody, but it’s not.

  2. Submitted by Edward Blaise on 09/17/2019 - 10:51 am.

    “No, I keep hearing these doomsday guesses about where democracy is heading. I think there’s every reason to feel optimistic about it.”

    I find myself in big picture agreement with VP Mondale. Unfortunately the small picture featuring D Trump is very different. Trump seems to have a “Saturday Night Massacre” moment every other week and people have become numb to it thanks in great part to the mainstream conservative media that finds nothing wrong with any of his actions and loudly reports so.

    Their failure to offer critical insight into Presidential behavior will be miraculously restored to unprecedented levels in early November 2020. This will be accompanied by near complete amnesia of the period 2016 to 2020.

  3. Submitted by Scot Kindschi on 09/17/2019 - 12:55 pm.

    Democracy? What democracy?

  4. Submitted by Dennis Tester on 09/17/2019 - 01:04 pm.

    Hoover wanted to arrogated to himself the right “to pick a different leader of the civil rights movement.” As we’ll soon learn, James Comey wanted to arrogated to himself the right to pick a different leader of the United States.

    And just to recap, Obama bombed seven countries after accepting the Nobel Peace Prize: Somalia (14), Pakistan (3), Afghanistan (1,337), Libya (496), Yemen (35), Iraq (12,095), and Syria (12,192). The airstrikes were carried out with both drones and manned aircraft. I don’t think congress explicitly authorized any of that.

    • Submitted by Jim Spensley on 10/03/2019 - 10:36 am.

      I am afraid that defense treaties approved by the Senate make declaring war optional, or if not predetermined by circumstances: on being attacted, Massive Assured Destruction. I haven’t been this alarmed about whose finger can reach our red button since Dick Cheny.

      I hope we get to November 2020.

  5. Submitted by RB Holbrook on 09/17/2019 - 01:31 pm.

    The limitations on the powers of the presidency are both well-defined and frequently flouted. The only new wrinkle added by the Trump presidency is his propensity for erratic behavior, his utter unconcern for the norms of constitutional government, and his disinterest in public policy generally. A 25th Amendment solution seems unlikely at this point, and we can’t make a President take an interest (“We’ll give you a hamberder if you listen to this briefing”), so the only check on him will be the interest of the other branches of government in asserting their powers. Judicial enforcement of the separation of powers in the Constitution is limited, so in the end it falls to Congress to act as a check on the executive, and on the executive to appreciate the limits on its power.

    Will Congress do it? Yes, trying to check the Trump administration will be “political,” but so what? What does Congress do that is not “political?” Didn’t we put them in Washington to be “political?” We are, as we have been taught for centuries, political animals. Why is it unseemly for our elected representatives to engage in politics, for the protection of the polis?

    A functioning constitutional government depends in no small part on the willingness of those in power to abide by the norms and understanding of governance. President Trump seems unconcerned, so it should be left to Congress to fill the role of constitutional watch-dog.

  6. Submitted by Hiram Foster on 09/17/2019 - 04:21 pm.

    What I think is interesting is that for some reason Congress granted the president all these emergency powers Trump is now using. What could the legislators have been thinking of?

  7. Submitted by Connor OKeefe on 09/17/2019 - 06:24 pm.

    I remember when Clinton shot up the pharmaceutical factory in Khartoum, many people were saying he had vastly overstepped his authority, but some of of ideological fellow travelers went further, suggesting that he had done that to take the heat off himself (his predatory sexual history was rapidly catching up with him at the time).

    That really irritated me, and I suggested to several friends that if they really believed a sittting US President would bomb people to cover up his zipper problems, it was time for them to do their duty and overthrow the government, as the founders had envisioned might someday be necessary for surely we had a madman in office. I went on to say if they were not ready to do that, any repeat of the accusation would leave me with no option but to consider them cowards.

    Now Trump is in power, and lefties are making accusations against him as bad or worse, and I have the same response: You are making accusations that Trump is seriously assuming a tyrannical power, fine; Put up, or shut up.

    • Submitted by Frank Phelan on 09/19/2019 - 07:00 am.

      Without comment on Bill Clinton or Don Trump, whenever a POTUS gets serious about military action abroad, I ALWAYS consider whether or not it is being done to divert our attention. It’s a time honored tactic in democracies and elsewhere.

      “All governments are run by liars and nothing they say should be believed.”
      I.F. Stone

  8. Submitted by William Hunter Duncan on 09/18/2019 - 08:46 am.

    I remember when Obama was institutionalizing total surveillance, treating whistle-blowers like spies, flooding domestic law enforcement with the used hardware of war, drone bombing countries all over the world, litterally ordering the killing of American citizens extra-judisciously (with the express consent of Congress), I tried to get my liberal friends to be as alarmed as I was.

    How many times did I say, “You aren’t going to be so dismissive of that when you have a president you don’t project sainthood onto.”

    Behold, Trump.

  9. Submitted by Carl Brookins on 09/18/2019 - 10:19 am.

    Behold Trump indeed. Anyone who has really studied the history of our republic and is willing to consider opposing points of view, must conclude that our current presidential condition will pass. The nation will recover equilibrium as it has in the past. We will continue to improve, albeit more slowly than most of us would wish. This is not unthinking optimism. It stems from observation of previous “movements,” religious, political, social which have swept the nation in the past. Remember isolationism at the end of WWI? Just one example of a dangerous movement that threatened the republic. The people of the nation stumble–too frequently, but we do not fall. In spite of a largely subverted Congress, I truly believe we will survive Trumpism.

  10. Submitted by Ray Schoch on 09/18/2019 - 11:37 am.

    Given Mr. Lewendowski’s dismissive attitude toward the Congressional hearing he was a part of yesterday, which I think is characteristic of both Trump and his associates in and out of Washington, allow me to be more pessimistic.

    Donald Trump has repeatedly displayed the mindset of a mob boss, and appears to have no interest – none whatsoever – in the separation of powers doctrine built into the Constitution. He wants to be a dictator – and a wealthy one – for whom the government is merely the means by which he can line his own pockets further, while simultaneously pandering to his own prejudices and those of his followers as a way to stay in power.

    Unless and until Congress, including “Moscow Mitch” McConnell, displays some semblance of backbone, “conservative” arguments about “limited government” are demonstrably hogwash, and Donald Trump will increasingly do whatever he pleases to the extent that a compliant Congress and courts allow him to do so.

  11. Submitted by steve carlson on 09/18/2019 - 12:21 pm.

    With respect, I would suggest a differing view.
    During the first two years of the Trump administration, it appeared that the competent officials he appointed, the media and a 2018 election might limit the damage his lies and other behavior could do to our democracy. Now that those competent officials have been dismissed, the Mueller report has been eviscerated and the House and the media have not shown an ability to effectively limit Trump’s norm-shattering behavior, it is no longer clear to me that Trumpism will fade away.
    Rather, I think he is more like Mussolini, who got worse and worse as Italian institutions failed to restrain him and social/political circumstances encouraged the establishment of an increasingly authoritarian regime. If a war or certain other destabilizing circumstances were to arise in the next year, I think it is possible Trump would be reelected (with Russian help), and his enablers in and out of government would permit him to further damage our democracy.
    I don’t know what eight years of Trump would deliver, but I do know that nearly three years have been increasingly harmful.
    I am therefore hopeful that he will not be reelected, and the new administration will take robust steps to revitalize our democracy.
    But notwithstanding America’s special democratic history, we are not immune to a possible descent into authoritarianism.

Leave a Reply