Bush pushed the limits of presidential power
With Cheney's urging, he insisted that he had that right under the US Constitution, especially during wartime.
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Congress can delegate the power to the president to be prepared to respond immediately to a sudden attack. But the president does not possess the constitutional authority to launch and fight a war without congressional approval.Skip to next paragraph
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"Immediately repelling attacks is constitutionally entirely appropriate," Pfiffner says. "But Cheney wants to extend that and say that things are different now that we are under big threats, so you have to give all this power to the executive."
The effort did not fail, experts say. But it did not succeed either.
"I think probably the hopes of the president and vice president for creating a much stronger executive branch have been largely frustrated," says Bradford Berenson, a former associate White House counsel under Bush.
"In the Bush years the hope for revivifying presidential power ended up foundering on some of the war on terror-related policies that Congress and the public ultimately perceived as too pro-executive or too unilateral," Mr. Berenson says.
Some analysts say it is only a matter of time before the Bush and Cheney position is vindicated.
"Over the long term the view will come to be that President Bush was largely successful in restoring the full constitutional powers of the president as commander in chief during time of war and crisis," says Professor Paulsen.
He says President Bush's terror policies were supported by Congress, including via legislation specially written to overturn Supreme Court decisions and amend domestic surveillance laws.
"Ironically, President Bush's use of war powers was much more fully supported by Congress than were President Clinton's," Paulsen says. President Clinton ordered offensive US military operations in Kosovo, he says, without any authorization from Congress.
Paulsen acknowledges that the administration lost several important cases in the US Supreme Court. But he says over time those decisions will be viewed as "far more questionable on legal grounds than President Bush's decisions."
Historians like activist presidents
Cato's Healy agrees that history may be kind to Bush, but for a different reason. "Historians tend to overvalue presidents who provide a lot of drama and explosions," he says. "This is more a reflection of the perverse fascination with activist presidents who provide a lot of drama than it is on President Bush's actual performance, which I think has been quite awful."
Bush isn't the only president who sought to greatly expand his executive powers. Lincoln did it while trying to hold the union together and win a civil war. Franklin Roosevelt did it when he ordered the open-ended internment of American citizens of Japanese heritage during World War II. Harry Truman did it when he tried to use his commander in chief powers to take over the steel mills in 1952.
The Supreme Court precedent from the Truman debacle established the principle that presidents are at the zenith of their power when they act with Congress. It also established that presidential power is at its lowest ebb when the president acts alone in defiance of Congress.