Directions: Using the accredited sources listed below please provide two, specific, historical examples that demonstrate the 'growth' in presidential power during the 20th and 21st centuries.
IN DEFENSE OF THE OLD REPUBLIC The Problem of the Imperial Presidency George W. Carey T he Philadelphia Constitution may be dead,' but the basic problems which troubled the Framers—e.g., preserving the rule of law, preventing oppressive gov- ernment—are still relevant, albeit in the new and different context. For instance, by way of introduction to what follows, the marked changes in relative powers of the branches of government since the time of the founding, though they may have drastically altered the character of the constitutional order, in no way dimin- ish the Founders' basic apprehensions associated with a concentration of pow- ers.
As I will endeavor to show in this re- spect, the enormous growth of presiden- tial powers should be, at least for those who share our Founders' concerns, cause for alarm.
Ti-ue enough, the proponents of the Constitution, if we are to judge from the ratification debates and the relevant essays of The Federalist, did not regard the presidency as a likely source of op- pression. Yet, by extrapolating from the assumptions and beliefs underlying their justification for the constitutional provi- sions for separated powers, there can be no question that today they would per- GEORGE W.
CAREY is Professorof Government at Georgetown University and the author, most recently, of A Student's Guide to American Political Thought.
ceive substantial dangers associated with presidential powers. Moreover, to antici- pate a matter I take up later, by examining how the Framers sought to prevent a dan- gerous concentration of power, we come to appreciate how difficult this task would be in today's altered political environ- ment. In sum, by setting forth the con- cerns of the Founders surrounding the constitutional distribution of powers, we gain a fuller awareness of the perils asso- ciated with the expansion of presidential powers and the obstacles that must be overcome in efforts to curb them.
1 We can profitably begin our inquiry by briefly examining Federalist essay no.
48 where we find critically important param- eters that seemed to have guided the Founders in their efforts to avoid oppres- sive government and preserve the rule of law. Having defined "tyranny" in the pre- vious essay as the concentration of legis- lative, executive, and judicial powers in the same hands, Madison turns in essay no. 48 to a major concern, namely, which branch poses the greatest threat to the constitutional sepciration.^ Now, in answering this question, he recognizes an imperative need to reori- ent the prevailing views about where the greatest threat of tyranny resides. "The Modem Age 443 Founders of our republics," he notes, have persisted in equating the executive office with "the overgrown and all-grasping pre- rogative of an hereditary magistrate, sup- ported and fortified by an hereditary branch of the legislative authority" (257).
What they fail to perceive, he remarks, is that "The legislative department is every where...drawing all power into its im- petuous vortex" (256-57).
He warns in no uncertain terms that in a "representative republic," such as that envisioned in the proposed Constitution, the legislature bears watching since it can grasp all pow- ers unto itself, thereby establishing "the same tyranny as is threatened by execu- tive usurpations." "It is," he insists, "against the enterprising ambition" of the legisla- ture "that the people ought to indulge all their jealousy, and exhaust all their pre- cautions" (257).
The reason for this reorientation in focus is clear enough: to guard against tyranny, the people should concentrate their attention on power and the institu- tions that wield it. Under British rule, their concern with King George III was justified, but under the forms of the Con- stitution, Congress is the institution most to be feared.
In spelling this out, Madison also indicates the degree to which repub- licanism is associated with legislative predominance. The legislature's (i.e..
Congress's) "constitutional powers," he points out, are "more extensive" than those of the other branches and "less susceptible of precise limit," which en- ables it to mask "encroachments" on the "co-ordinate departments." Moreover, he adds, it, alone, has "access to the pockets of the people." On the other hémd, he notes, "the executive power," which is "more simple in its nature," is "restrained within a narrower compass," while the judicial power is defined "by land-marks still less uncertain" (257-58).
On this score, we should also emphasize, the essays immediately following underscore in no uncertain terms the enormous influence the legislature would exercise over the people, a theme reiterated later in essays dealing with the presidency. In short, given the picture of legislative power drawn in these essays, there can be no gainsaying that Madison firmly believed, as he observes in essay no.
51, "In repub- lican government, the legislative author- ity necessarily predominates" (269).
Madison's analysis and commentary also provide a backdrop against which we can appreciate the degree to which the legislative branch has lost its preemi- nent status. One indicator of this decline can be derived from essay no.
49 in which Madison critiques Jefferson's proposal that recourse be had to the people when disputes arise between the bréinches over their respective powers.
Madison answers by noting that the branch most likely to aggrandize would be the legislature and that, in addition, the people would most likely side with the legislature if the issue were submitted to them.
"The members of the legislative depcirtment," he notes, "are numerous...distributed among the people at large" with "connexions of blood, of friendship, cind of acquaintance" that "em- brace a great proportion of the most influ- ential part of the society." "The nature of their public trust," he continues, "implies a personal influence among the people, and that they are more immediately the confidential guardians of their rights and liberties." Neither the executive nor judi- ciary, he contends, could match these legislative advantages: the judiciary would be too distant and removed from the people, whereas executive officers were "generally objects of jealousy" and "their administration... always liable to be discoulored and rendered unpopular" (263).
In effect, the legislature would be judge of its own cause. Yet, and a signifi- cant measure of Congress's decline, is that it no longer enjoys these inherent advantages.
On the contrary, there is good reason to believe that today in any such showdown, the executive, and even the 444 Fall2007 judiciary, might well prove to be an over- match for Congress.
The fact that Congress has lost pres- tige and the confidence of the people using the measures Madison sets forth is also reflected in the commonly heard expression, echoed even by senators and representatives, that the Constitution establishes three equal and coordinate briinches; that Congress is "co-equal" with the other branches. To assert a constitu- tional equality of the branches, however, is clearly misleading, particularly when it comes to their authority to command the nation's resources and to execute consti- tutionally delegated powers. Neverthe- less, even though inchoate, this three- equal-branches understanding has not only come to prevail, it is generally taken to be the understanding of the Framers as well.
Yet, as I have already indicated, this is not the case. Those portions of The Federalist that touch upon the separation of powers are unmistakably written from the perspective of legislative predomi- nance, so much so that most of its conjec- tures about the behavior of the branches and specific threats to the separation of powers have little relevance to our cur- rent state of affairs.^ The decline of Congress and the growth of executive powers, however, goes well beyond whatever perceptions the people may have.
These perceptions would seem to merely reflect a reality resulting from a series of largely extra-constitutional de- velopments that have elevated the presi- dency at the expense of Congress. The emergence of competing political parties during the early years of our republic was clearly important, and so, too, the elec- tion in 1828 of Andrew Jackson to the presidency. Not only was Jackson able to secure his party's nomination through popular channels, dealing a death blow to party nominations by congressional caucuses, equally important, he secured victory in the general election with an overwhelming popular majority, twin achievements that allowed him to plausi- bly maintain that he represented the people as fully as Congress. Put other- wise, he credibly challenged the tradi- tionally accepted view that the authentic will of the people could only be derived through Congress. It remained for Woodrow Wilson, early in the twentieth century, to develop fully certain strands of thought implicit in Jackson's claims.
Wilson had come to conclude that only through presidential leadership could the "progressive" goals to which he sub- scribed become a reality. In keeping with this view, he went beyond Jackson by asserting that the president was the only authentic national voice; that the nation as a whole possessed "no other political spokesman."'' He viewed the president as "the unifying force in our complex sys- tem, the leader both of his party and tbe nation."^ By the middle of the twentieth century, particularly after Franklin Delano Roosevelt, few doubted that tbe presidency was the dominant institution in the American system. The historian Clinton Rossiter reflected this consensus in setting forth the range of the president's constitutional "functions"—"Chief of State, Chief Executive, Commander in Chief,ChiefDiplomat, [and] Chief Legisla- tor."^ To these constitutional roles he added "five additional functions": "Chief of Party," "Voice of the People," "World Leader," "Protector of tbe Peace," and "Manager of Prosperity."' II This growth in presidential powers has been marked by fits and starts with occa- sional setbacks. At the present time, it seems clear, we are in the midst of an upsurge, presumably prompted to regain ground lost in prior setbacks.
Specifically, particularly since 9/11, it has been widely reported that one of the major gocils of the administration of George W. Bush is the restoration of the presidential preroga- Modern Age 445 tives and powers that were diminished or preempted principally during the Nixon and Reagan administrations.* Moreover, this restoration is not a piecemeal under- taking, i.e., simply an effort to return to the status quo ante by reclaiming discrete powers that may have been lost or com- promised by previous administrations.
Quite the contrary, it is based upon a comprehensive "unitary executive theory" that claims constitutional justifi- cation for an expansion of executive au- thority to unprecedented levels.^ Under this theory, presidents can lay claim to a large and indefinite domain of exclusive authority derived from their constitu- tional obligation in Article II to insure that the "laws be faithfully executed." Thus, laws or provisions of the laws which, in the judgment of the president, intrude upon his exclusive authority are pre- sumed to breach the separation of pow- ers thereby rendering them unconstitu- tional and inoperative.
In this context, we come to see the significance of President Bush's "presidential signing statements" since they mark out those provisions of the laws regarded as intrusions or poten- tial intrusions of his executive author- ity.'" Such statements are nothing new, stretching back as far as the Monroe ad- ministration, but they were never as sys- tematically related to a broader theory of presidential authority and relatively few raised constitutional issues. Moreover, the sheer number of signing statements issued by President Bush could make their use commonplace and less controversial for future presidents.
If he continues at his present rate.
President Bush will have issued more than three times the number issued by all prior presidents." The nature and significcince of these statements can, perhaps, best be seen by examining the most controversial of them that relates to Senator McCain's Detainee Treatment Act of 2005, which eventually took the form of an amendment added on to a defense appropriations McCain's measure, opposed by the ad- ministration, sought to prohibit torture in the interrogations of military prisoners and, as such, prompted a signing state- ment since it was deemed to deal with a concern touching upon executive author- ity.
The most pertinent part of the state- ment declares that the McCain amend- ment will be executed "in a manner con- sistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief" in order to achieve "the shared objective of Congress and the President...
of protecting the American people from further terrorist attacks." Taken as a whole, these qualifiers provide ample room for the president to ignore the congressional prohibition. This is to say, since he is the one who decides what is consistent with his "constitutional authority" in light of "the shared objective," he is free to use his discretion with regard to the use of Inter- rogation techniques.
The invocation of the president's authority as "Commander in Chief" is also highly significant. Under the unitary executive theory, this provi- sion renders constitutional any execu- tive action to protect the people during time of war or hostilities. Nor, consonant with the unitary executive theory, may Congress constitutionally place any limi- tations on the president's discretion to take such action as he may deem neces- sary.'^ In many respects, the legitimacy of this understanding of presidential author- ity was at the heart of the lengthy debate concerning the president's disregard of that provision of the Foreign Intelligence Surveillance Act of 1978 (FISA) requiring judicial authorization for the use of wire- taps.'" What seems clear, even from this brief survey—which I have purposely confined to marking out the parameters of the president's exclusive domain of power— is that the unitary executive theory ex- pands presidential authority beyond lim- its previously acknowledged. Compari- 446 Fall 2007 sons are frequently made to Lincoln's actions at the outset of the Civil War to suggest that the current understanding of executive powers is not at all unprec- edented. In the last analysis, however, there remains a crucial difference be- tween Lincoln's positions and the ratio- nale of the unitary executive theory. In retrospect the justifications for Lincoln's actions—and a justification he, in effect, set forth for certain of his major acts— comes down to the claim of a prerogative power in the Lockean sense. This power authorizes executive actions, when un- foreseen circumstances or emergencies arise that threaten the well being of the people, with the necessary dispatch "ac- cording to discretion, for the publick good, without the prescription of the Law and sometimes even against it."'' This under- standing, it is critical to note, acknowl- edges that some presidential actions taken to preserve the Union were con- tréiry to the laws or the Constitution, whereas under the unitary executive theory these same actions would be viewed as a constitutional exercise of the president's inherent powers. Moreover, prerogative powers are assumed only when the legislature is unable for what- ever reason to authorize executive ac- tions.
Under the unitary executive theory, however, these powers cire inherent presi- dential powers that can be exercised whether the legislature is capable of act- ing or not.'^ It is important at this point to place the Bush administration's conception of presidential power into a broader con- text. To be sure, we now have before us a conception of executive authority that is by any reckoning more expansive than any previously proffered in our history." But, as I have intimated, given the pattern in the growth of presidential powers, this is hardly surprising. Against the broad backdrop of this growth over the decades.
President Bush's restoration project is only a snap shot, so to speak, that catches presidential powers on the upswing.
And this upswing, in turn, should also be placed in perspective. For quite some time, the executive has enjoyed extremely broad powers in the international arena as attested to by his capacity to commit the nation to war, leaving the Congress with no alternative but to go along. '* Many claims of George W. Bush in this impor- tant area, therefore, are not without pre- cedent. Nevertheless, it must be acknowl- edged, at least two factors do render presi- dential powers in the context of the uni- fied executive theory somewhat excep- tional: first, the executive can claim a wide latitude to unilaterally initiate "pre- ventive wars," and second, the ongoing "war on terror"—appropriately dubbed the "long war"—is a war without any fore- seeable end. Consequently, unless this unified executive theory is moderated and refined, Americans for the first time will be living without effective constitu- tional checks on executive discretion or authority for a period that may well stretch on for decades.
Ill If we follow the injunction of the Founders, namely, to keep our eyes riveted on the locus of power, then it is evident that we are now obliged to guard "against the enterprising ambitions of" the executive "department." But beyond this rather obvious conclusion is another not quite so obvious one: Given the character of the American political landscape, the presidency promises to be the institution that will permanently pose the greatest threat to liberty and self-government.
Thus, whether or not President Bush's restoration effort falls short of its goal or not, we can expect to see a continuous growth of presidential power so long as the Constitution and the political culture surrounding it endure.
The reasons for this are multiple, but the most basic is a critical dissolution of Modem Age 447 the motives or impulses that the Framers believed would preserve the intended constitutional separation. Returning to The Federalist, we see from that brace of essays dealing specifically with the sepa- ration of powers that they believed insti- tutional interest would ultimately serve to preserve separation. We gather as much from Madison's analysis in Federalist no.
51 where he maintains that "the great security against a gradual concentration of powers...consists in giving to those who administer each depcirtment, the nec- essary constitutional means, and per- sonal motive, to resist the encroachment of the others"(268). As far as the "consti- tutional means" are concerned, they re- late to strengthening the weak (vesting the president with a qualified veto) and weakening the strong (dividing the Con- gress into two chambers). These consti- tutional means are necessary but not sufficient for maintaining separation; they must be united, as he points out, with an institutional interest so that the office holders will, when necessary, act to de- fend their "turf" against encroachments.
To this end, as Madison maintained, "The interest of the man must be connected with the constitutional rights of the place" (268).
He even describes this solution in terms of "supplying, by opposite and rivcil interests, the defect of better motives" (269).
In light of this, we may ask:
Does insti- tutional interest play the role that Madi- son, and presumably the Framers, be- lieved it would?
I think the answer to this question is both "yes" and "no." In my judgment, institutional interest is alive and well within the presidency and the Court, but dormant, if not dead, within Congress. The reason for this is to be found largely in the conjunction and in- ter-play of two factors: the enormous growth of presidential powers and the president's role as leader of his political party. What we have witnessed, increas- ingly in modern times, is that when the same party controls Congress and the presidency. Congress is more or less com- pliant with presidential requests, even those involving institutional preroga- tives.
In short, in this circumstance, party considerations trump institutional inter- est. This, it should be noted in passing, is not all surprising. Suffice it to say, subli- mating institutional interest to partisan considerations serves the individual in- terests of the members of Congress.'^ By the same token, when Congress resists executive encroachments—and this, usu- ally, only when there is divided govern- ment, i.e., where one party does not con- trol the presidency and both legislative chambers—partisanship, not institu- tional interest, would clearly seem to be the motivation.^" With respect to the presidency, how- ever, institutional considerations are a high priority, perhaps even the highest.
This we might expect for various reasons.
The president is one individual, high pow- ered and ambitious, who cannot help but focus on leaving a "legacy" that will be looked upon favorably by future genera- tions.
In this respect, we can be certain he is going to compare himself with past presidents, and knowing that the "strong" presidents—Jefferson, Jackson, Lincoln, Wilson, Theodore and Franklin Delano Roosevelt—are considered the "greatest," he wiii not want to leave the office weaker than when he entered.
In other words, the connection between the interests of the individual and the office is naturally joined in the office of the presidency. But not so in a numerous legislative body such as Congress, where cohesion on institu- tional interest—even assuming agreement on its specifics could be had—would be weciker, more diffused, and more likely to dissolve in the face of other, more immedi- ate, individuell interests. The upshot is that Congress—contrary to what the Frcim- ers anticipated—is no match for the presi- dency, not at least over the long haul.
448 Fall2007 IV We are, I believe, faced with a serious derangement of power; a derangement whose character is markedly different from that with which the Founders were concerned. It would appear, to view this concern from a different perspective, that there is a dynamic under the forms and processes of the Constitution, perhaps due to a failure in its initial design, that is inexorably leading, albeit in sporadic manner, to an "imperial presidency." We can now see that the constitutional sys- tem, once set in motion, was destined to move in the direction of presidential su- premacy, the more so since the Framers purposely "weakened" the legislature by dividing it. For its part. Congress has not been able to arrest this dynamic, save occasionally and temporarily for parti- san, not institutional, reasons.
This state of affairs leads to a critical question, namely, what can be done to avoid the dangers posed by a largely un- checked concentration of power in the presidency? Can this be done, as many suggest, by members of Congress simply coming to the realization of what is taking place and then mustering the necessary fortitude to assert their constitutional prerogatives? Certainly, on paper at least, they have the constitutional muscle to do this. As intimated above, however, partisanship enters into the picture, serv- ing to prevent any congressional reassertion of power save in the case of a grievously weakened chief executive.
Past experience also shows, as we have em- phasized, that Congress is only an effec- tive check on presidential powers when there is a divided government and even then not always with success, particu- larly when presidents, as they have been wont to do, commit American forces to hostilities. The prevailing view regarding such commitments, which are certainly among the most crucial a nation can un- dertake, seems to be that Congress can be constitutionally bypassed; Congress's seeming acquiescence with this under- standing being still another indication of its impotence in the face of presidential power. Moreover, while Congress still possesses the appropriations power, this has proved to be a clumsy weapon with which to direct and control a president.
Nor can we count on the Court, which is itself guilty of appropriating, without any effective resistance, large swaths of legis- lative power. While the Court has man- aged to curb some of the presidential excesses, it is understandably reluctant to curb executive war making powers or to challenge his authority during war.
In light of the fact that Congress has all but abdicated its constitutional respon- sibilities with respect to the commitment of our armed forces, it seems unlikely that at some future time it will be inclined to do battle with the executive over its lesser powers. In the last analysis, if the past be any guide, we are obliged to conclude that Congress is not likely to check the presidency through the assertion of its institutional interests. Moreover, there is and has been no public outcry of suffi- cient magnitude about the derangement in powers that might arouse Congress to act upon these interests.
In part, as I have noted, the absence of any widespread public concern is attributable to the very incoherence of the "three-equal- branches" understanding of our consti- tutional system that now prevails.
Having noted this much, let me say that my purpose is not to offer a remedy, but rather to indicate in broad terms the dan- gers posed by tbe growth of presidential powers and why their growth seems inevi- table. It is depressing, I readily grant, to realize that at the present time there does not appear to be any feasible solution to these problems.
It is also somewhat alarm- ing because the dangers associated with the imperial presidency are compounded by an awareness that, while new and more expansive theories of executive author- Modern Age 449 ity are seriously advanced, the office is not attracting individuals of high moral and intellectual character. But, above all.
in the face of these dangers, it is disap- pointing to witness the complacency of those who should know better.
1.
See my "Who or What Killed the Philadelphia Constitution," 36 Tulsa Law Joumal 3 (Spring, 2001), 621. I conclude that the Philadelphia Constitution was not suited for the positive gov- ernment initiated by the New Deal. Thus, to make the Constitution viable for "progressive"ends without recourse to amendments, new meaning had to be given to federalism. Congress's com- merce power broadened, the legitimate scope of governmental authority extended, and so forth.
The net result, I concluded, was that these changes miirked the death of the Philadelphia Constitu- tion. 2. All citations to The Federalist in the text (the essay number when necessary, followed by page number) are to The Federalist:
The Gideon Edition, eds. George W.
Ccirey and James McClellan (Indianapolis, 2000). 3. In this respect, consider only Hamilton's judgment that "The superior weight cind influence of the legislature...and the hazard to the executive in a trial of strength with that body" suffice to insure that the veto would normally be used "with great caution"; "that, in its exercise, there would oftener be room for a charge of timidity than of rashness" (73:882). 4.
Woodrow Wilson, Constitutional Government in the United States (New York, 1961(1908]), 68. 5.
Ibid, 60.
6. Clinton Rossiter, The American Presidency, rev. ed. (New York, 1962), 28. 7.
Ibid, 28 ff. 8.
Whether any such restoration Wcis necesstiry is open to question. For instance, the War Powers Resolution (1973), a reaction to the war in Viet Nam, that was designed to provide some legisla- tive control over the deployment of American troops, has been ignored by presidents. Likewise, the Budget and Impoundment Control Act (1974), intended to provide greater congressional con- trol over the budget process and to limit the president's discretionciry authority over funding, has not proved in practice to have substanticdly diminished executive authority. The Iran-contra affair, however, did raise questions about the president's authority to conduct foreign policy ' that do seem related to the restoration program of George W. Bush. See text below. 9. For an explication and forceful defense of the unitary executive theory, see: John Yoo, The Powers of War and Peace:
The Constitution and Foreign Affairs after 9/11 (Chicago, 2005) and his more recent.
War by Other Means: An Insider's Account ofthe War on Terror (New York, 2006). 10. As Bruce Fein describes them, "signing statements...declare the president's intent to disregard provisions of bills he hcis signed into law that he proclciims are unconstitutional, for example, a requirement to obtain a judicial warrant before opening mail or a prohibition on employing military force to fight narco-terrorists in Colombia. The signing state- ments are tantamount to absolute line-item vetoes that the Supreme Court invalidated in the 1998 case Clinton v.
New York." See "Impeach Cheney"at A limited investigation by the General Ac- countability Office (GAO) found that there were 11 signing statements issued by President Bush deal- ing with 160 provisions of appropriations mea- sures for fiscal 2006.
Of the 19 provisions it looked at 10 were executed as written, six were not, and three were not as yet "triggered." See: 11. See: 12. For a text of this amendment see:
13.
The President's Constitutional Authority To Con- duct Military Operations Against Terrorists and the Nations Supporting Them, Memorandum Opinion for the Deputy Counsel to the President, prepared by John Yoo, September 25, 2001 at 14.
For the entire reuige of opinion on this issue see:
15.
John Locke, Two Treatises of Government, with an Introduction by Peter laslett, rev. ed. (New York, 1963), chpt.
XIV, sec 160. 16. For a critical analysis of such claims stemming from the unitary execu- tive theory, see the Fourth Circuit decision in Ai- Marri v. Wilkinson (2007) at: The Supreme Court has rejected extensive claims of unilateral execu- tive power under the unitary executive theory in Hamdan v. Rumsfeld, 126 S Ct. 2749 (2006), at:
17.
It is interesting to compare the unitary executive theory of presidential authority with Theodore Roosevelt's "stewardship theory." Roosevelt ac- knowledged limitations: a president, under his understanding, could act unless in contravention of the Constitution or a law. See Joseph E.
Kallenback, The American Chief Executive (New York, 1966), 246. In other words, the "steward- ship theory" acknowledges limitations of law, wherecis this is not necesscirily the case with the unitary executive theory. 18. On this point, Ed- ward Corwin wrote in 1957, after the Korean Wcir, but before our involvement in Viet Nam, that, save for the War of 1812 and the Spanish-American 450 Fall2007 War, our other major engagements—the Mexi- can War, the Civil War, and the two World Wars— "were the outcome of presidential policies in the making." Of course, there is no question that the president placed the leading role in our involve- ment in both Viet Nam and Iraq wars. Indeed, the day of congressional declared wars seems to have ended. 19. Obviously those in Congress can realize the immediate, personal interests far more easily with a president of the same party.
For instance, to gain re-election, their prime interest, is facilitated by plejtsing their constitu- ents and bringing home the "bacon"—more readily done with a friendly president. In this connection, however, we should note that representatives will desert or distance themselves from a presi- dent of their party when the president is clearly so unpopular as to pose an obstacle to their re- election. 20. What this indicates, of course, is that politics at the national level centers to a great extent on control of the presidency. In turn, this is due to the fact that the resources at the disposai of the executive branch and the presi- dent are enormous, unparaiieled in history.
Modem Age 451
