Who can we blame for the radical expansion of executive power? Look no further than you and me.
by GENE HEALY
Reason, June 2008
I aint running for preacher, Republican
presidential candidate Phil Gramm snarled to religious right activists in 1995 when they
urged him to run a campaign stressing moral themes. Several months later, despite
Gramms fund raising prowess, the Texas conservative finished a desultory fifth place
in the Iowa caucuses and quickly dropped out of the race. Since then, few candidates have
made Gramms mistake. Serious contenders for the office recognize that the role and
scope of the modern presidency cannot be so narrowly confined. Todays candidates are
running enthusiastically for national preacherand much else besides.
In the revival tent atmosphere of Barack Obamas campaign, the preferred hosanna of
hope is Yes we can! We can, the Democratic front-runner promises, not
only create a new kind of politics but transform this country,
change the world, and even create a Kingdom right here on earth.
With the presidency, all things are possible.
Even though Republican nominee John McCain tends to eschew rainbows and uplift in favor of
the grim satisfaction that comes from serving a cause greater than
self-interest, he too sees the presidency as a font of miracles and the wellspring
of national redemption. A president who wants to achieve greatness, McCain suggests,
should emulate Teddy Roosevelt, who liberally interpreted the constitutional
authority of the office and nourished the soul of a great nation.
President George W. Bush, when passing the GOP torch to his former rival in March,
declared that the Arizona senator will bring determination to defeat an enemy and a
heart big enough to love those who hurt. Hillary Clinton, meanwhile, suggests she is
ready on Day 1 to be commander in chief of our economy.
The chief executive of the United States is no longer a mere constitutional officer
charged with faithful execution of the laws. He is a soul nourisher, a hope giver, a
living American talisman against hurricanes, terrorism, economic downturns, and spiritual
malaise. Heor sheis the one who answers the phone at 3 a.m. to keep our
children safe from harm. The modern president is Americas shrink, a social worker,
our very own national talk show host. Hes also the Supreme Warlord of the Earth.
This messianic campaign rhetoric merely reflects what the office has evolved into after
decades of public clamoring. The vision of the president as national guardian and
spiritual redeemer is so ubiquitous it goes virtually unnoticed. Americans, left, right,
and other, think of the commander in chief as a superhero, responsible for
swooping to the rescue when danger strikes. And with great responsibility comes great
power.
Its difficult for 21st-century Americans to imagine things any other way. The United
States appears stuck with an imperial presidency, an office that concentrates enormous
power in the hands of whichever professional politician manages to claw his way to the
top. Americans appear deeply ambivalent about the results, alternately cursing the king
and pining for Camelot. But executive power will continue to grow, and threats to civil
liberties increase, until citizens reconsider the incentives we have given to a post that
started out so humble.
Minimum Leader
It wasnt supposed to be this way. The modern vision of the presidency couldnt be further from the Framers view of the chief executives role. In an age long before distrust of power was condemned as cynicism, the Founding Fathers designed a presidency of modest authority and limited responsibilities. The Constitutions architects never conceived of the president as the man in charge of national destiny. They worked amid the living memory of monarchy, and for them the very notion of national leadership raised the possibility of authoritarian rule by a demagogue ready to create an atmosphere of crisis in order to enhance his power.
The constitutional office they designed gave the president an important role, but hed have no particle of spiritual jurisdiction, the 69th essay of The Federalist Papers tells us. In Federalist No. 48, James Madison assured Americans that under the proposed Constitution the executive magistracy is carefully limited, both in the extent and the duration of its powers. Indeed, the very pseudonym the Federalists authors chose, Publius, says something about how hostile Founding-generation Americans were to the idea of one-man rule. Publius Valerius Poplicola, a hero of the Roman revolution in the 5th century B.C., was famous in part for passing a law providing that anyone suspected of seeking kingship could be summarily executed.
Never were constitutional limitations more essential than when it came to using military power. Early Americans were no strangers to national security threats; in 1787 the U.S. was a small frontier republic on the edge of a continent occupied by periodically hostile great powers and Indian marauders. Yet the Constitution limited emergency powers and sharply rejected the idea that the president was above the law. In no part of the Constitution, Madison wrote in 1793, is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department. In any other arrangement, the trust and the temptation would be too great for any one man. That sentiment crossed party lines. As Chief Justice John Marshall wrote in 1801, the whole powers of war being by the Constitution of the United States vested in Congress, the acts of that body can alone be resorted to as our guides.
Today Americans expect their president to pound Teddy Roosevelts bully pulpit, whipping the electorate into a frenzy to harness power against perceived threats. But the Framers viewed that sort of behavior as fundamentally illegitimate. In fact, the president wasnt even supposed to be a popular leader. As presidential scholar Jeffrey K. Tulis has pointed out, in the Federalist the term leader is nearly always used pejoratively; the essays by Madison, Alexander Hamilton, and John Jay in defense of the Constitution begin and end with warnings about the perils of populist leadership. The first Federalist warns of men who have overturned the liberties of republics by paying obsequious court to the people, commencing demagogues and ending tyrants, and the last Federalist raises the specter of a military despotism orchestrated by a victorious demagogue.
Instead of stoking public demands for action, the chief magistrate was expected to resist the transient impulses of the people and use his veto to keep Congress within its constitutional bounds. That role didnt require much speechifying. Early presidents rarely spoke directly to the public; from George Washington through Andrew Jackson, they averaged little more than three speeches per year, with those mostly confined to ceremonial addresses. In his first year in office, by comparison, President Clinton delivered 600.
In the early State of the Union addresses to Congress, presidents knew better than to adopt an imperious tone. After his third SOTU, Washington wrote that motives of delicacy had deterred him from introducing any topic which relates to legislative matters, lest it should be suspected that [I] wished to influence the question before Congress. Yet the deference shown by Washington and his successor John Adams didnt go quite far enough for our third president, Thomas Jefferson, who thought their practice of speaking before the legislature in person smacked of the British kings Speech From the Throne. Jefferson instead inaugurated a new tradition of delivering the annual message in writing. For 112 years, that Jeffersonian tradition held sway, until the power-hungry Woodrow Wilson delivered his first State of the Union in person.
The 19th century did see presidents occasionally taking independent action of enormous consequences: Jefferson purchased Louisiana without congressional approval, Madison seized West Florida in 1810, Andrew Jackson governed as an irritable populist, and Abraham Lincoln expanded presidential power dramatically throughout the course of the cataclysmic Civil War. Yet taken as a whole, the 19th-century presidency was a pale shadow of the plebiscitary office we know today.
In a 2002 study tracking word usage through two centuries of SOTUs and inaugural addresses, political scientist Elvin T. Lim noted that in the first decades under the Constitution presidents rarely mentioned poverty, and the word help did not even appear until 1859. Nor did early presidents subscribe to the modern notion that its all about the children; they rarely even mentioned the little buggers. But Lim found that Presidents Carter, Reagan, Bush, and Clinton made 260 of the 508 references to children in the entire speech database, invoking the governments responsibility to and concern for children in practically every public policy area.
George Washington did mention kids in his seventh annual
message, lamenting the frequent destruction of innocent women and children by
Indian raiders. But that was a far cry from Bill Clinton in 1997, who declared in the
State of the Union that we must also protect our children by standing firm in our
determination to ban the advertising and marketing of cigarettes that endanger their
lives.
Wail to the Chief
A little-remembered vignette from the 1992 presidential
race underscores how far weve traveled from the Framers unassuming chief
magistrateand how infantile our politics have become along the way. The scene
was the campaigns second televised debate, held in Richmond, Virginia; the format, a
horrid Oprah-style arrangement in which a hand-picked audience of allegedly normal
Americans got to lob questions at the candidates, who were perched on stools, trying to
look warm and approachable. Up from the crowd popped a ponytailed social worker named
Denton Walthall, who demanded to know what George H.W. Bush, Bill Clinton, and H. Ross
Perot were going to do for us.
The focus of my work as a domestic mediator is meeting the needs of the children
that I work with
and not the wants of their parents, Walthall said. And I
ask the three of you, how can we, as symbolically the children of the future president,
expect the three of you to meet our needs, the needs in housing and in crime and you name
it.
One wonders how some of the more irascible presidents of old would have reacted at the sight of a grown man burbling about childish necessities to the prospective national father. Yet under the hot lights of the 1992 campaign, Ross Perot said hed cross his heart and take Walthalls pledge to meet Americas infantile needs, whatever those were. Bill Clinton, being Bill Clinton, pandered. And Bush 41 spluttered through his answer thusly:
I mean II think, in general, lets talk about theselets talk about these issues; lets talk about the programs, but in the presidency a lot goes into it. Caring is thats not particularly specific; strength goes into it, thats not specific; standing up against aggression, thats not specific in terms of a program. So I, in principle, Ill take your point and think we ought to discuss child careor whatever else it is. That wasnt just an example of the Bush familys famous locution problems; its hard not to stammer when faced with the limitless and bewildering demands the public places on the presidency.
How did we go from a reticent constitutional officer to the modern commander in chief, a figure who continually shifts back and forth between gushing empathy and military bluster, often within the same speech? As Tony Soprano might have put it, whatever happened to Calvin Coolidge, the strong, silent type?
There is no single explanation for the presidencys growth. New communication technologies such as radio and television played a role, as did growing material progress, which made Americans less willing to suffer inconveniences and more receptive to the belief that public problems could be solved with collective action. Yet in each key period of the presidencys growth, we see a familiar pattern: expansionist ideology meeting practical opportunity in the form of successive national crises.
The 100-Year Emergency
Much of whats wrong with American government today can be traced to the Progressive Era, that period of reformist backlash against the Industrial Revolution that dominated the decades surrounding the turn of the 20th century. As the Progressives saw it, if the Constitution stood in the way of necessary reforms, then too bad for the Constitution. We are the first Americans, a young scholar named Woodrow Wilson wrote in 1885, to hear our own countrymen ask whether the Constitution is still adapted to serve the purposes for which it was intended; the first to entertain any serious doubts about the superiority of our institutions as compared with the systems of Europe.
The Progressives were the nearest to presidential absolutists of any theorists and practitioners of the presidency, wrote Raymond Tatalovich and Thomas S. Engeman in their 2003 book The Presidency and Political Science: Two Hundred Years of Intellectual Debate. For the new centurys reformers, power wielded for national greatness was benign, checks on such power perverse. The Progressives had no use for the restrained oratorical traditions of the 19th century; it was the presidents job to move the masses, unifying them behind calls for bold executive action.
Their model and embodiment was Teddy Roosevelt, whom the Progressive journalist and New Republic founder Herbert Croly described as a sledgehammer in the cause of national righteousness. When T.R. took the stage at the 1912 Progressive Party convention, he foreshadowed Obamas quasi-religious fervor and McCains bellicosity, barking, To you who strive in a spirit of brotherhood for the betterment of our Nation, to you who gird yourselves for this great new fight in the never-ending warfare for the good of humankind, I say in closing. We stand at Armageddon, and we battle for the Lord!
The most astute among the Progressives recognized that, given the American publics congenital resistance to centralized rule, a sustained atmosphere of crisis would be necessary to sell the expansion of White House power. Two world wars and one Great Depression did the trick nicely. T.R.s activist, celebrity presidency heralded the coming of a new sort of chief executive, one who would evermore be the center of national attention, the motive force behind American government. With his expanded power, Roosevelt busted trusts, carried a big stick throughout the Americas with a newly imperial U.S. Navy, and issued nearly as many executive orders as all of his predecessors combined. Woodrow Wilson then proved what Progressives had long hypothesized: that soaring rhetoric combined with the panicked atmosphere of war could concentrate massive social power in the hands of one person. Over the course of his presidency he helped create the Federal Reserve, nationalized railroads, and used the Espionage and Sedition Acts (along with more than 150,000 vigilantes) to carry out the most brutal campaign against dissent in U.S. history.
But it took FDR to eliminate the last remaining vestiges of the modest presidency. Roosevelt used Wilsons Trading With the Enemy Act to shut down all U.S. banks in 1933, grabbed the power to approve or prescribe wages and prices for all trades and industries, and authorized the FBI to spy on suspected subversives. He changed the Supreme Court from a bulwark against presidential overreach to an enabler. By the end of his 12-year reign, FDR had firmly established the president as national protector and nurturer, one whose performance would be judged in terms of what political scientist Theodore Lowi has identified as the modern test of executive legitimacy: service delivery. In his 11th State of the Union address, FDR conjured up a second Bill of Rights, one whose guarantees would include a useful and renumerative job and the right of every farmer to a decent living. Depression-era economic controls and war-driven centralization had turned the American system of government, in Lowis words, into an inverted pyramid, with everything coming to rest on a presidential pinpoint.
War was the health of the presidency during the long twilight struggle against the Soviet Union as well. The worse matters get, Harry Trumans adviser Clark Clifford told him in 1948, the more is there a sense of crisis. In times of crisis, the American citizen tends to back up his president. During the Cold War, presidents used the all-purpose rationale of national security to justify spying on their political enemies. Richard Nixon might have been the most notorious abuser, with a series of dirty tricks and flagrant offenses that led to his downfall, but his predecessors also wielded the presidential bludgeon with gusto. When American steel companies raised prices in 1962, John F. Kennedy declared privately that they fucked us, and now weve got to fuck them, then (along with his attorney general, brother Bobby) ordered up wiretaps, Internal Revenue Service audits and early-morning raids on steel executives homes. During the 1964 presidential race, Lyndon Johnson used the CIA to obtain advance copies of Barry Goldwaters campaign speeches, and the FBI to bug Goldwaters plane.
In the pre-Watergate age of the heroic presidency, public
trust in government was at its height, and mainstream scholars lauded the presidency as an
earthly manifestation of the living God. As political scientist Herman Finer put it in
1960, the office was the incarnation of the American people in a sacrament
resembling that in which the wafer and the wine are seen to be the body and blood of
Christ. The president, Finer said, was the offspring of a titan and Minerva
husbanded by Mars.
I Hate You; Dont Leave Me
After Vietnam and Watergate, Americas intoxication
with the imperial presidency ended with a crushing hangover. A newly aggressive press and
assertive Congress produced serial revelations of the executive abuses that blind trust
had enabled. In the bicentennial year of 1976, Idaho Sen. Frank Churchs Committee to
Study Governmental Operations With Respect to Intelligence Activities summed up the
damage:
For decades Congress and the courts as well as the press and the public have
accepted the notion that the control of intelligence activities was the exclusive
prerogative of the Chief Executive and his surrogates. The exercise of this power was not
questioned or even inquired into by outsiders. Indeed, at times the power was seen as
flowing not from the law, but as inherent, in the Presidency. Whatever the theory, the
fact was that intelligence activities were essentially exempted from the normal system of
checks and balances. Such executive power, not founded in law or checked by Congress or
the courts, contained the seeds of abuse and its growth was to be expected.
During the Eisenhower 1950s and the JFK/LBJ 1960s, the newly ascendant conservative movement coalescing around Barry Goldwater and William F. Buckleys National Review was the most potent source of criticism of the imperial presidency. Others hail the display of presidential strength simply because they approve of the result reached by the use of power, Goldwater wrote in his 1964 campaign manifesto. This is nothing less than the totalitarian philosophy that the end justifies the means.
But enticed by the long-awaited prospect of an emerging Republican majority and turned off by the journalistic and congressional attacks on Nixon, conservatives learned to stop worrying and love the executive branch. During the post-Watergate reform era, two senior Gerald Ford White House aides named Dick Cheney and Donald Rumsfeld fought tooth and nail against what they felt were dangerous shackles on the executive branch, supported by a conservative commentariat that refocused its ire on the Democratic Congress and the left-leaning press. I didnt like Nixon until Watergate, National Review stalwart M. Stanton Evans once quipped.
Although Americans finally recovered their native
skepticism toward power after Vietnam, Watergate, and the revelations of the Church
committee, we never reduced our demands on the executive branch. The lesson we seemed to
have learned from the legacy of abuses was to trust less, ask more. In 1998 the
Pew Research Center noted that public desire for government services and activism
has remained nearly steady over the past 30 years. Two years later, a report on a
survey by NPR, the Kaiser Family Foundation, and Harvards John F. Kennedy School of
Government put it pithily: Americans distrust government, but want it to do
more. The spirit of Denton Walthall lived on in the years leading up to the
terrorist attacks of September 11, 2001.
Superman Returns
The Bush administrations extraconstitutional innovations in response to those attacks are by now all too familiar. John Yoo, David Addington, and other members of the presidents legal team constructed an alternative version of the national charter, a neoconstitution in which the president has unlimited power to launch war, wiretap without judicial scrutiny, and even seize American citizens on American soil and hold them for the duration of the War on Terrorin other words, indefinitelywithout ever having to answer to a judge.
Conventional accounts of the post-9/11 imperial presidency emphasize the role of dedicated ideologues within the administration, men and women who had long believed that post-Watergate America had swung the pendulum too far back, jeopardizing national security. Theres good reason for that emphasis, but the cabal of neocons narrative risks obscuring the role that public demands have played in driving the centralization of power.
In his 2007 book The Terror Presidency, Jack
Goldsmith, the former head of the presidents Office of Legal Counsel, describes the
prevailing atmosphere within the executive branch after 9/11, one where the
presidents men were acutely aware that all eyes were on the commander in chief. What
is he doing to keep us safe? What more is he prepared to do?
Goldsmith, a dissenter from the Bush administrations absolutist theories of
executive power, often clashed with Dick Cheneys deputy David Addington, the
hardest-driving supporter of those theories. But Goldsmith understood why Addington was so
unrelenting: He believed presidential power was coextensive with presidential
responsibility. Since the president would be blamed for the next homeland attack, he must
have the power under the Constitution to do what he deemed necessary to stop it,
regardless of what Congress said.
That dynamic can lead to enhanced presidential power even in areas far removed from the
War on Terror, as was demonstrated in the aftermath of Hurricane Katrina. In business or
in government, responsibility without authority is every executives worst nightmare.
That was the political reality facing the Bush administration in late summer 2005, when
New Orleans was under water and desperate for assistance. As Colby Cosh of Canadas National
Post put it at the time, the 49 percent of Americans who have been complaining
for five years about George W. Bush being a dictator are now vexed to the point of utter
incoherence because for the last fortnight he has failed to do a sufficiently convincing
impression of a dictator.
To be sure, the administration deserved plenty of blame for bungling the disaster relief
tasks it had the power to carry out. But it soon became clear that the public held the
Bush team responsible for performing feats above and beyond its legal authority. One
almost had to feel sorry for Michael Heckuva Job Brown(ie), the disgraced
former Federal Emergency Management Agency head, when he was obliged on Capitol Hill a
month after the hurricane to inform an irate Rep. Chris Shays (R-Conn.) that in our
federalist system, the FEMA chief has no power to order mandatory evacuations, or to
become this superhero that is going to step in there and suddenly take everybody out
of New Orleans. That is just talk, Shays responded. Were you in
contact with the military?
For a president beleaguered by public demands, seizing new powers can be an adaptive
response. Small wonder, then, that the Bush administration promptly sought enhanced
authority for domestic use of the military. Although few in the media noted the historical
moment, the president received that authority. On October 17, 2006, the same day he signed
the Military Commissions Act denying centuries-old habeas corpus rights to enemy
combatants, the president also signed a defense authorization bill that contained
gaping new exceptions to the Posse Comitatus Act of 1878, the federal law that restricts
the presidents power to use the standing army to enforce order at home.
The new exceptions to the act gave the president power to use U.S. armed forces to
restore public order and enforce the laws when confronted with natural
disasters, public health emergencies, and
other
incidentsa catchall phrase that radically expands the
presidents ability to use troops against his own citizens. Under it, the president
can, if he chooses, fight a federal War on Hurricanes, declaring himself supreme military
commander in any state where he thinks conditions warrant it. Thats the kind of
executive power grab that happens when the public demands that the president protect
Americans from the hazards of cyclical bad weather.
2009 and Beyond
To understand is not to excuse: No president should have
the powers President Bush has sought and seized during the last seven years. But after
9/11 and Katrina, what rationally self-interested chief executive would hesitate to
centralize power in anticipation of crisis? That pressure would be hard to resist, even
for a president devoted to the Constitution and respectful of the limited role the office
was supposed to play in our system of government.
In the current presidential race, none of the major-party candidates comes close to
fitting that description. Aside from the issue of torture, theres very little
daylight between John McCain and George W. Bush on matters of executive power. For her
part, Hillary Clinton claims she played a key role in her husbands undeclared war
against Serbia in 1999. I urged him to bomb, she told Talk magazine
that year. In 2003 she told ABCs George Stephanopoulos: Im a strong
believer in executive authority. I wish that, when my husband was president, people in
Congress had been more willing to recognize presidential authority.
Barack Obama has done more than any candidate in memory to boost expectations for the
office, which were extraordinarily high to begin with. Obamas stated positions on
civil liberties may be preferable to McCains, but would it matter? If and when a car
bomb goes off somewhere in America, would a President Obama be able to resist resorting to
warrantless wiretapping, undeclared wars, and the Bush theory of unrestrained executive
power? As a Democrat without military experience, publicly perceived as weak on national
security, hed have much more to prove.
As Jack Goldsmith put it in his 2007 book, For generations the Terror Presidency
will be characterized by an unremitting fear of attack, an obsession with preventing the
attack, and a proclivity to act aggressively and preemptively to do so.
If anything,
the next Democratic Presidenthaving digested a few threat matrices, and acutely
aware that he or she alone will be wholly responsible when thousands of Americans are
killed in the next attackwill be even more anxious than the current President to
thwart the threat.
Law professors Jack Balkin of Yale and Sanford Levinson of the University of Texas at
Austin are both Democrats and civil libertarians, so they take no pleasure in their
prediction that the next Democratic President will likely retain significant aspects
of what the Bush administration has done. Indeed, they write in a 2006 Fordham
Law Review article, future Democratic presidents may find that they enjoy the
discretion and lack of accountability created by Bushs unilateral gambits.
Throughout the 20th century more and more Americans looked to the central government to
deal with highly visible public problems, from labor disputes to crime waves to natural
disasters. And as responsibility flowed to the center, power accrued with it. If that
trend continues, responses to matters of great public concern will be increasingly
federal, increasingly executive, and increasingly military.
In the years to come, many Americans will find that the results of executive action are
not to their liking. And if history is any guide, theyll respond by vilifying the
officeholder and looking for another man on horseback to set things right again.
In The Road to Serfdom, economist and political philosopher F.A. Hayek chastised
the socialists of all parties for their belief that it is not the system
we need fear, but the danger it might be run by bad men. Todays
presidentialists of all partiesa phrase that describes the overwhelming
majority of American voterssuffer from a similar delusion. Our system, with its
unhealthy, unconstitutional concentration of power, feeds on the atavistic tendency to see
the chief magistrate as our national father or mother, responsible for our economic
well-being, our physical safety, and even our sense of belonging. Relimiting the
presidency depends on freeing ourselves from a mind-set one century in the making. One
hopes that it wont take another Watergate and Vietnam for us to break loose from the
spellbinding cult of the presidency.
Gene Healy, a senior editor at the Cato Institute, is the author of The Cult of the Presidency: Americas Dangerous Devotion to Executive Power (Cato), from which this essay was adapted.