The Pros And Cons Of Presidential Power

Presidential power has always been controversial. Congress and the Judiciary have clashed with both Bush and Clinton administrations over matters of executive privilege, impeachment, and the war on terror. Almost all modern presidents have moved to expand their power. So it is an even bet that given the foreign policy challenges of Iraq, Afghanistan, Iran, and North Korea—not to mention the disruptions to the domestic economy of the credit crisis—Barack Obama will soon be drawing on the well of executive power every bit as deeply as his predecessors have.

But critics have recently insisted that it is unconstitutional for a President to make war policy without consulting Congress first, despite the Commander in Chief role assigned to that

office by the Constitution. Others, critical of what they believe to be excessive secrecy, suggest that military and intelligence agencies ought to report jointly to Congress, not just to the President, as they do today. Presidents, they say, should generally refrain from acting unless they have obtained the express permission of Congress and the courts.

American history and law provides little support for this view.

The Presidency’s role in war, national security, and policy both foreign and domestic has only increased ever since the founding of the nation. Presidents have deliberately sparked war, seeking congressional approval only later, as when James Polk ordered Zachary Taylor to move against Mexican forces on the Texas border in 1848, an act that made the United States the dominant power in North America. Harry Truman sent U.S. troops to fight in Korea. Bill Clinton launched a unilateral air war in Kosovo. George W. Bush terminated the ABM treaty and withdrew from the International Criminal Court. Congress never approved any of these exercises of presidential power. All these actions were based on legal precedents dating back to Abraham Lincoln, who himself, in the Civil War, ordered the detention of enemy combatants without criminal charges or access to civilian court. These legal precedents have been followed time and again by Presidents regardless of

party.

The Constitution, American history, our legal precedents, and the demands of a modern society and economy—perhaps unfortunately—simply require presidents to exercise broad powers. These powers have only become all the more encompassing with the growth of America’s economic and military standing, and the complexity of its society. Luckily, those who designed the Constitution also designed the office of the Presidency to respond to change, to act with the energy and vigor to act swiftly, especially in times of national crisis and war.

Nevertheless, there is an important strain of scholarship, a libertarian strain both on the left and the right, that contends that the Framers intended Congress to play the lead role in policy in the American democracy—that Congress should lead, and the President merely execute Congress’s policy.

Some say the eighteenth century ideas underlying the Constitution are simply outmoded and have little relevance to today’s issues. Books with titles like The New Imperial Presidency, The Terror Presidency, or Takeover: The Return of the Imperial Presidency all proceed from a common assumption that the Presidency has little significant constitutional authority of his own but should follow and defer to Congress.

To this one can only reply that the Louisiana Purchase, the Emancipation Proclamation, and American assistance to the British before Pearl Harbor were executive actions, and by no means anomalies in history. This essay is meant to explore the nature of executive power as the American Constitution conceived it, and the historic pattern of the growth of that power over the past 220

years.

Today’s debates are echoed in those which attended the nation’s first chief executive, George Washington. According to Stephen Skowronek, Thomas Jefferson, Andrew Jackson, Abraham Lincoln, and Franklin Roosevelt were the most transformative American presidents, and, according to Marc Landy and Sidney Milkis, the “greatest” for their profound effect on American politics. In fact, historians almost always judge to be “great” those presidents who have wielded presidential power the most boldly and expansively. Such Presidents as Martin Van Buren, William McKinley, or Woodrow Wilson, made lasting changes to the political system and to the structure or powers of their office. But it is FDR, Lincoln, and Washington, who confronted the nation’s greatest crises, who are considered great by most historians. As Theodore Roosevelt observed, “if Lincoln had lived in times of peace, no one would have known his name now.”

James Buchanan, Lincoln’s predecessor, or Herbert Hoover, struck by the Great Depression, and even Calvin Coolidge, whose laconic inaction has nevertheless been admired for its discreet charm, are generally not accounted great presidents.

Still, the fact is that Presidents draw upon a deep well of constitutional authority and historical precedent to act, should they so choose.

Congress by contrast usually finds itself unable to provide this particular sort of leadership. Its committee nature, and its bias toward the status quo, or factional dissention, pulls against change. The qualities that define the office of the executive – energy, speed, decisiveness, and secrecy, among others – are those most required in emergencies, and it was to perform this necessary function that the executive was created. The ordeals of the founding of the nation, the Napoleonic Wars, the nationalization of society, the Civil War, or World War II, were not met without the Presidents of the day making the broadest use of their constitutional powers.

Yet executive power is hardly unlimited. Congress and the Judiciary maintain powerful checks on the President. Congress controls legislation governing the size and shape of the government and military, its funding, and the substance and reach of the law—all crucially important parameters that hem in all Presidential action. The courts can refuse to support executive action, can acquit or release suspects, or can invalidate laws that violate the Constitution. Aggressive executive action, wise or unwise, can energize political parties to rise up in opposition. Andrew Jackson’s vigorous assertions of presidential authority divided the Democratic party and sparked the founding of the Whigs. Dramatic action can turn public opinion against a chief executive who might have been popular just a few years before. Unless Congress and the judiciary agree, or at least acquiesce, it is a given that Presidents cannot pursue their policies over the long term, under the American constitutional system. Washington and Jefferson hurried to their retirements, heartily glad to quit the nation’s capital. Two of our greatest presidents, Lincoln and FDR, died in office, spent and exhausted by their difficult role.

Politics attends any dramatic exercise of a President’s constitutional authorities. By definition, dramatic executive action will offend powerful forces with a stake in the status quo. If a consensus already existed, after all, there would be no need to invoke power. Presidents forced to make a choice between a Scylla or Charibdis will always face criticism. But to protect the national interest, confront crisis, and to exploit opportunity is uniquely the Presidential role. Politics has been always been corrosive and intense, throughout our history.

Despite the politics that erupted some years after the fact over my own role in delineating the legal and historical parameters for Presidential action in the midst of a war crisis, this essay is not a brief on behalf of the Bush administration’s exercise of executive authority in the war on terror. It is about the constitutional and institutional history of the Presidency. Most studies of the Presidency focus on a single chief executive or depict the evolution of the office though a single frame. Rarely does one find any discussion of the constitutional authorities of the office, as structured by the Founders, at the outer limits of emergency and crisis. Ironically, the exercise of Presidential power at the margins strongly correlates with glowing praise and admiration from historians. Time must pass before strong conclusions can be drawn about whether any particular exercise of power, either by the President or by Congress, was to the nation’s benefit—if only because it takes the perspective of time to see the overall effects of those policies. New policies, or policy shifts driven by new conditions, often seem to stand in rebuke to past actions taken under other circumstances. All dramatic actions will spark strong views. The full context of an action is never entirely knowable from an outside perspective—at least not in the moment.

I had the honor to serve as general counsel of the Senate Judiciary Committee under the Chairmanship of Senator Orrin G. Hatch of Utah, a good and decent man as well as a steward of the Senate. I have the greatest respect for the awesome powers of Congress, and for the ways in which Congress and the broader political system works to check any chief executive. Like the President, Congress has its own unique constitutional authorities, which it can use to devastating effect. It was Congress that forced the resignation of Richard Nixon through hearings, political pressure, spending constraints, and ultimately impeachment. Today’s critics of the powers of the Presidency too often underestimate the power of politics to corral any branch of government that goes too far. Active responses to large challenges are not per se illegal, but claims of that kind can be an effective political weapon for those in opposition.

The Founding Fathers fully understood the dangers of tyranny and abhored it. And all “great” Presidents have been accused of abuse of power, whenever they used their constitutional authorities in ways they thought to be to the benefit of the nation. When crises subside, uses of presidential power recede, often going into remission under long periods of congressional leadership. Whenever misuse of power has come to light, the political system has frustrated, neutralized, or even forced out the President. No dictator has ever ruled in the United States, although charges and warnings of such have been sounded throughout history.

The evolution of presidential power through American history has been a story of consistent growth. The Framers intentionally left the constitutional boundaries of the presidency flexible and undefined. From the start, Presidents have acted as they saw fit, forcefully in response to unanticipated emergencies or fast-moving events, and without consulting Congress. Instead of “parchment barriers,” the framers counted on politics to check and balance the natural power of presidential charisma and initiative. Historians have noted the weaknesses of the presidency. It is for example true that the Founders wanted the office to be quite unlike that of a monarch. It is also true that a part of the function of the executive is to carry out congressional directives written into law. Standard texts like Arthur Schlesinger, Jr.’s Imperial Presidency observe how Presidents later used emergencies and war to expand their power to areas originally given, in theory, to Congress, the courts, or the states. Geoffrey Stone’s Perilous Times notes how Presidents of the past have often tended to go too far in abusing individual liberties during wartime, and observes that Congress and the courts have the duty to rein them in. Works by libertarian-conservative scholars shift the focus, to advocate limited executive power in peacetime—specifically, limits on the administrative state’s regulation of the economy and society.

There is some truth to both the liberal and conservative critique of the expansion in the powers of the Presidency. However, the executive is also an equal branch of government, one not meant to serve purely at the mercy of the other two. The Founders did not want the presidency to be a monarchy, but they also wanted it to be stronger than the state governors, who, they thought, were too hamstrung by the revolutionary states’ experiments in constitutional structuring.

John Locke, William Blackstone and Montesquieu believed that the executive encompassed management, discretion in the execution of the laws, foreign policy, and war. Prosecutors (an executive branch function), for example, do not ”enforce the laws” against every violator who comes to their attention. No state can pursue every known offense against the law, therefore only the most important or winnable cases are brought. This power of selection is a crucial component of executive and managerial control. Written laws passed by Congress also cannot anticipate everything. The Founders were well aware that good government could not be run entirely by a rulebook. This understanding is reflected in the familiar caution about the letter of a law conflicting with its spirit, requiring discretion in execution. (As Thomas Jefferson wrote after leaving the Presidency, “a scrupulous adherence to written law,” over the interests of self-protection, “would be to lose the law itself” and would “absurdly sacrifice[e] the end to the means.”)

The Framers had a love-hate relationship with executive power. Rejecting King George III does not mean that they were suspicious of all executive power. They were every bit as suspicious of legislatures, often accusing them of having too much power. Pennsylvania, for example, had no governor, but a 12-member committee appointed annually by the state assembly, and it was roundly condemned in the Constitutional Convention for having reduced the role of governors to “mere ciphers.” Actually, the Founders viewed all-powerful legislatures as a greater threat to liberty than unchecked executives. James Madison and Alexander Hamilton sought to contain the revolutionary legislatures with independent executives. As historian Gordon Wood has observed, the Constitution represented a Thermidorean reaction to rein in the unruly legislatures birthed by the Revolution.

The tension between the recognized dangers of both legislatures (special interest group legislation) and executives (tyranny) expressed itself in the Constitution’s parceling out of power in either broad and sweeping terms (in the case of the executive), or precise and enumerated (in the case of Congress). The President is “Commander-in-Chief of the Army and Navy of the United States” while Congress ”declares” war. The President can make treaties and appoint Supreme Court Justices, but only with the advice and consent of the Senate. By contrast, British constitutional practice vested in the Crown alone the power to make treaties and appointments.

There is no mention in the Constitution of a cabinet or power over the agencies, but the President is given the duty to “take Care that the Laws be faithfully executed.” While the Framers granted the bulk of power to Congress—most importantly the authority over domestic legislation and taxing and spending—it left the outer contours of the Presidency open-ended.

Broad phrasing inevitably became a legal vessel for new powers; as the nation grew and foreign affairs became more important, the President’s responsibilities grew too. It is a phenomenon criticized by many, but nonetheless a very real one.