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.