On the surface, Rand Paul held the Senate floor for nearly 11 hours Wednesday to protest a new version of the Patriot Act provision under which the National Security Agency's bulk data collection program was justified.
But on a much deeper level, the Kentucky Republican and White House aspirant was thrusting a debate about executive power into the middle of the 2016 presidential campaign. There is no more consequential topic facing voters in the next election.
"The most basic of powers with regard to war were not actually given to the president; they were given to Congress," Paul said. "What is sad about this, what’s going on now, is that Congress hasn’t shown, I think, sufficient interest in what the executive branch does on a host of things, whether it be regulation, whether it be the enormous bureaucracy, but really so much power has shifted and gone from Congress and wound up in the executive."
The power of the presidency has grown, with the explicit and implicit assent of a timid Congress, under Presidents George W. Bush and Barack Obama. Together, Bush and Obama interpreted their authorities to wage war broadly — in Afghanistan, Iraq, and Libya, and against pockets of terrorists around the world. Bush initiated, and Obama continued, domestic spying programs that have raised objections in the courts and from Congress.
While Bush used signing statements to subvert the will of Congress, Obama has taken executive action to write new policy in areas, such as immigration and climate change, where Congress failed to act and has chosen to enforce some laws selectively. House Republicans even sued him over unilaterally delaying the enforcement date of the employer mandate in the Affordable Care Act, a day that was written into the law.
For better and worse, the next president is in line to inherit a vastly expanded set of tools with which to implement his or her agenda without Congress. That makes the questions Paul is raising about the proper balance of power between the executive and the legislative branches, and between the federal government and its people, among the most important that will be asked in this election cycle. Regardless of whether he wins the presidency — most political analysts see him as a long shot — this elevation of the debate over executive power is Paul's gift to the American public.
Presidents seek power, absolutely
Paul's status as a candidate gives him standing to force the issue into the presidential campaign in a way the public, the press, and the political class can't, and his supporters will expect nothing less.
As Politico noted Thursday, Paul used the debate over Patriot Act provisions to distinguish himself from the field. Unlike many other candidates, including fellow Republican Senator Ted Cruz of Texas and Democratic frontrunner Hillary Clinton, Paul is uncomfortable with the so-called USA Freedom Act, which would extend expiring provisions of the Patriot Act but force the government to seek records from phone companies rather than through its existing bulk data collection program.
The government still has too much power to intrude on the privacy of American citizens under the new construct, Paul argued on the floor.
His consistency in wanting to limit executive power — he's been critical of both Obama's and Bush's interpretations of their authority — separates him from Democratic candidates in 2008, including Obama, who argued for checks on the White House only in relation to what they described as the excesses of the Republican president.
"The American people need to know where we stand on these issues before they entrust us with this responsibility — particularly at a time when our laws, our traditions, and our Constitution have been repeatedly challenged by this administration," Obama said in a Q&A session in 2007. Once elected, he used his own set of legal justifications to launch a war in Libya without congressional authorization, all but dropped his promise to "revisit the Patriot Act," and unilaterally protected unauthorized immigrants from deportation.
William Howell, a public policy and political science professor at the University of Chicago, has written that all presidents seek to expand their authority, in large part because the American public expects so much from them. They often find that they don't have the power to fix problems that voters want them to address. So they create new powers or find new ways to use existing powers. Presidents shouldn't be expected to limit themselves, Howell wrote in 2013.
"Presidential candidates who foreswear the use of certain power instruments during a campaign — compare, for instance, Sen. Barack Obama’s principled arguments for the sparing use of signing statements with President Barack Obama’s regular and controversial employment of them — quickly learn to appreciate their merits once in office," Howell wrote.
That might seem like a pretty good justification to ignore what candidates say about their views of executive power. But it's actually the very reason they must be put on the record before voters choose among them.
Getting them on the record
As Jonathan Bernstein wrote in Washington Monthly in 2012, presidents actually try to keep their campaign promises. The more they're pinned down on the trail, the harder it will be for them to break their pledges later on. That's especially true because 2016 is an open-seat election. There could be a price to pay — the loss of the 2020 reelection campaign — if the next president turns his or her back on a promise to use or forgo certain powers.
Conversely, if candidates aren't forced to articulate their positions on executive power during the campaign, there won't be anything holding them back — or forcing them to act to deliver a policy to a particular constituency.
And if a president can be expected to build on the existing powers of the executive, it's important to know what he or she thinks those powers are heading into the job. There's no right answer for all voters, but it's an important distinction among the candidates that speaks both to their philosophy of governance and their ability to achieve goals within a dysfunctional political system.
Whether a voter believes the power of the presidency should be robust or sharply limited, he or she can't make a fully informed judgment at the ballot box without knowing what the candidate believes about the levers of the office.
The political fight is on, but it's not partisan
Of course, Republicans scream bloody murder about Obama abusing his power. Democrats did the same with Bush. And Republicans did the same with Bill Clinton. And so on and so on.
But most of Paul's rivals for the presidency support either a straight extension of the Patriot Act provisions or the amended version that the House passed last week on a 338-88 vote.
Jeb Bush defended the law Thursday in New Hampshire.
"There is not a shred of evidence that anybody’s civil liberties have been violated by it," Bush said, according to the New York Times. "It’s already been proven constitutional, and there is ample evidence that it has protected us."
Hillary Clinton tweeted her support for the House bill two weeks ago.
Congress should move ahead now with the USA Freedom Act—a good step forward in ongoing efforts to protect our security & civil liberties. -H— Mary Jo for Hillary (@HillaryClinton) May 7, 2015
But after years of Congress pliantly ceding power, particularly over national security and budget matters, there is also bipartisan support for curbing the clout of the executive branch of government.
Senator Ron Wyden, an Oregon Democrat who has worked with Paul to limit the administration's power to spy on the American public, joined the Kentuckian on the floor late Tuesday night to praise him for tackling the issue time and again.
"We have begun to rein in this unchecked executive branch power, and I think a big part of it has been the very valuable work my colleague has done in terms of trying to highlight these kinds of practices"
"We have begun to rein in this unchecked executive branch power, and I think a big part of it has been the very valuable work my colleague has done in terms of trying to highlight these kinds of practices," said Wyden, who has charged that the administration interpreted the Patriot Act to give the president domestic-spying powers that were not granted by that law. A federal court earlier this month agreed, concluding that the Patriot Act does not authorize the government's bulk data collection program.
But Wyden, who has been a scourge of this administration and the last one on intelligence gathering, is living proof of the difficulty lawmakers have in limiting the powers of presidents of their own party. He backed Obama's intervention in Libya in 2011.
National security! National security!
The 9/11 terrorist attack on the US accelerated and cemented the shift of national security power to the presidency. The Patriot Act, the merits of which were still being debated in Paul's filibuster 14 years later, was first enacted six weeks after the twin towers fell.
During the discussion over its first reauthorization a decade ago, the New York Times broke the news that Bush had authorized the National Security Agency to spy on Americans without a court order.
The prevailing view of proponents of the spying program and the Patriot Act was summed up in December 2005 by Senator John Cornyn of Texas, who is now the second-ranking Republican in the Senate.
"None of your civil liberties matter much after you're dead," he said.
But the Patriot Act wasn't even as big as the open-ended resolutions giving Bush, and now Obama, the authority to go to war in Afghanistan, Iraq, and really anywhere around the globe that the president sees fit.
The Constitution gives Congress the power to declare war. But presidents believe their status as commander in chief gives them entrée into the war-making field, and lawmakers don't like the thorny politics of war votes. So they have handed more and more power to the president to decide when to commit the US armed forces into extended operations.
In theory, the War Powers Act was designed to limit the power of the president to go to war without Congress. The Korean and Vietnam Wars were fought without a declaration. In reality, the law had the opposite effect, delineating just how much the president can do without so much as the tacit consent of Congress.
When Obama began limited strikes to fight ISIS last year, he did it using the Afghanistan and Iraq War resolutions as justification for his action. That is, the scope of the 2001 resolution adopted by Congress was so wide as to allow him to go to war, without new authorization, in a different country against an enemy that didn't exist when the authorization was drafted.
When Obama struck Libya, he did not ask permission from Congress at all. The administration insisted it would be a short engagement. It was long enough to require congressional approval. Congress eventually and tacitly gave Obama the authority he sought by voting down both a formal one-year authorization and a measure that would have placed restrictions on his conduct of hostilities.
In that way, Congress has been of two minds of executive power: on the one hand, lawmakers love to bash the president — usually one of the opposing party — for abusing his power. On the other, they've shown time and again that they don't want to be held responsible for major decisions on war and peace or even budgeting, where they've given the president more power by failing to pass appropriations bills and ending the earmarks that let them direct federal money back home.
If Congress won't act to take power back from the president — and there's no reason to think the institution is ready to stand up for itself — then it's all the more important to know how presidential candidates intend to use the power they would win with the presidency. It's very real power.
Last year, Paul promised that, if elected, he would use an executive order to "repeal all previous executive orders."
That's a terrible idea. But Paul's push to rein in executive power should highlight the issue in the presidential campaign — and that's a very good thing for voters who must decide which candidate should be given the awesome power of the modern presidency.