Too much Presidential power

The Unites States has been in danger several times of sliding from self-professed greatest democracy in the world to quasi-fascism. Indeed, we have gotten perilously close again during the height of the Bush administration's power, and have now recovered a little because Democrats control both Houses of Congress. How is this possible, considering that the US Constitution – a document beautifully embodying the principles of the Enlightenment – so clearly separates the three branches of Government, judiciary, legislative and executive?

Because American Presidents have far too much power, and several have not been shy about attempting to arrogate even more for themselves. George Washington, the first US President, famously refused to consider being proclaimed King, as many wished after the successful American Revolution (I'm doubtful that George W. would follow his example, if given the chance). However, he was also the first one to invoke so-called “executive privilege,” the ability of the executive branch to refuse to submit documents or testimony when subpoenaed by Congress. The first such instance occurred in 1796, when Washington claimed that the House of Representatives had no business reviewing documents pertaining to the recent Jay Treaty with England, since treaties need to be ratified by the Senate, not the House (he did turn the documents to the Senate). It is important to note that nowhere in the Constitution is anything like executive privilege mentioned, and especially not in Article II, which spells out the President's powers. Washington just made it up, and others followed suit.

Executive privilege has been invoked by other Presidents, from time to time, including Thomas Jefferson and Bill Clinton (the latter in response to the prosecution related to the idiotic Lewinsky affair). But it was – not surprisingly – Richard Nixon that provoked the intervention of the Supreme Court on the matter. Nixon invoked the privilege to deny Watergate prosecutors access to tapes of conversations he had had in the Oval Office with members of his staff. The Supreme Court decision is interesting. The Court did not reject the principle of executive privilege entirely, noting that "the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties," and adding that "[h]uman experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process."

However, the Court also forced Nixon to turn his tapes over, because it did not recognize such executive privilege as absolute: "To read the Article II powers of the President as providing an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality of nonmilitary and nondiplomatic discussions would upset the constitutional balance of 'a workable government' and gravely impair the role of the courts under Article III."

George W. Bush, arguably the American President that got us as close to fascism as ever in the history of the United States, has – again not surprisingly – invoked the privilege several times during his tenure, a whopping eight times in fact, including four episodes within the span of a month during July and early August 2007. In response to one such use of executive privilege by Bush, the Supreme Court issues a cautionary statement. In 2004, Justice Anthony Kennedy wrote that "executive privilege is an extraordinary assertion of power not to be lightly invoked."

The problem, of course, is that the President also has the power to appoint Supreme Court Justices (though the appointment has to be confirmed by the Senate), which is a flagrant violation of the separation of powers. This particular loophole in the Constitution has already allowed Bush to steal the 2000 election, and it is likely to help him avoid serious Congressional scrutiny through the end of his term. Luckily, that's only a bit more than a year away. Did I say “only”??