Brennan Center for Justice

Last
night's Democratic debate covered health care and the war in Iraq and jobs and the economy. In
other words, the NBC News moderators asked mostly the same questions as, well,
the 19 previous debates.

As is
customary, talking heads and the print media
proclaimed who won and lost. Opinions varied, but nobody named last night's
real loser: James Madison, the father of our Constitution
and champion of checks and balances.

The issue of presidential power, which is an unlikely answer to pollsters' endless
queries as to what is the most important issue in this election is actually
quite ubiquitous.  Warrantless
surveillance. The Foreign Intelligence Surveillance Act (currently stalled in
the House). Retroactive immunity for telecomm companies. Justice Department investigations into
torture. Destruction of evidence
of torture. Presidential signing statements that flout the intent of Congress.
Indefinite detention. Trials for terror suspects under the Detainee Treatment
Act. Extraordinary rendition.

Connecting these dots illustrates a remarkable expansion of power in the executive branch
over the past eight years that runs afoul of the Constitution and James
Madison's intent. Yet, the issue has not
arisen—even once—in any of the 40 debates. (The Boston Globe's Charlie Savage
suggested a series of topical questions on the New York Times op-ed page on the
eve of the debate.)

The administration's
theory of presidential power surfaced long before G.W. Bush took office: in a
1987 congressional minority report on the Iran-Contra scandal. As articulated
by then Congressman Dick Cheney, and highlighted by the Brennan Center's Aziz
Huq in 12 Steps to Restore Checks and Balances, the report provided the foundation for the
current administration's theory of monarchial executive power,
which claims that the president can act like a king and override—or ignore—Congress.
 

Since
none of the moderators in any of the Presidential debates have raised questions
about our system of checks and balances and how we might best restore
Constitutional order, we're writing to each of the campaigns and to ask them to
answer the question printed below. We'll post responses we receive.  

In
recent years and months, we've learned about warrantless surveillance, signing
statements that circumvent Congressional intent, indefinite detention of US
citizens, expanded claims of executive privilege, secret memos from the Office
of Legal Counsel that justified torture, and much more.  Many people—including former members of Republican and Democratic administrations—see
these actions as an attack by the executive branch on constitutional checks and
balances, Congress and the courts. Do you believe that the presidency has
gained too much power? If so, as president, what specific steps would you take
to correct the imbalance?

Brennan Center's Senior Fellow Eric Lane
notes that, upon swearing in, the president places his—or her— hand on the Bible and
recites the Oath of Office, committing to:
support and defend
the Constitution of the United
States.

We deserve to know which George
the next president will resemble—Washington, or the King III.