It’s time to rein in the imperial U.S. presidency
This article is part of a package on the expanding power of the US presidency. To read editor in chief David Schimke’s interview with author and presidential power critic Dana D. Nelson, read “ Presidential Power to the People .”
“I’m not a 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 Gramm’s 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 Gramm’s mistake. Serious contenders for the office recognize that the role and scope of the modern presidency cannot be so narrowly confined. Today’s candidates are running enthusiastically for national preacher—and much else besides.
In the revival tent atmosphere of Barack Obama’s campaign, the preferred hosanna of hope is “Yes we can!” We can, the Democratic candidate promises, not only create “a new kind of politics” but also “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 he was 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.”
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. He—or she—is the one who answers the phone at 3 a.m. to keep our children safe from harm. The modern president is America’s shrink, a social worker, our very own national talk show host. He’s 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 that 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.
It’s difficult for 21st-century Americans to imagine things any other way. The United States appears to be 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 humbly.
It wasn’t supposed to be this way. The modern vision of the presidency couldn’t be further from the view of the chief executive’s role held by the framers of the Constitution. 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 Constitution’s architects never conceived of the president as the person 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 “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.” 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 United States was a small frontier republic. 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.”
Today Americans expect their president to pound Teddy Roosevelt’s “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 wasn’t even supposed to be a popular leader. As presidential scholar Jeffrey K. Tulis has pointed out, in The Federalist Papers 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.
Instead of stoking public demands for action, the chief magistrate was expected to resist “the transient impulses” of the people and use the veto to keep Congress within its constitutional bounds. That role didn’t require much speechifying. Early presidents rarely spoke directly to the public; from George Washington through Andrew Jackson, they averaged little more than three speeches a year, mostly 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 State of the Union address, 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, didn’t 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 king’s “Speech from the Throne.” Jefferson began a new tradition of delivering the annual message in writing, and this held sway for 112 years, until the power-hungry Woodrow Wilson delivered his first State of the Union address 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, 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 office we know today.
In a 2002 study tracking two centuries of State of the Union and inaugural addresses, political scientist Elvin T. Lim noted that in the nation’s first decades presidents rarely mentioned poverty, and the word help did not appear until 1859. Nor did early presidents subscribe to the modern notion that it’s 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 government’s 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 address 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.”
There is no single explanation for the presidency’s 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 all public problems could be solved with collective action. Yet in each key period of the presidency’s growth, we see a familiar pattern: expansionist ideology meeting practical opportunity in the form of successive national crises.
Much of what’s 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 own institutions as compared with the systems of Europe.”
The Progressives had no use for the restrained oratorical traditions of the 19th century; it was the president’s job to move the masses, unifying them behind calls for bold executive action.
Their model and embodiment was Teddy Roosevelt, whom the Progressive journalist Herbert Croly described as a “sledgehammer in the cause of national righteousness.” When Roosevelt took the stage at the 1912 Progressive Party convention, he foreshadowed Obama’s quasi-religious fervor and McCain’s 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 public’s 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 the Great Depression did the trick nicely. Roosevelt’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 System, nationalized railroads, and used the Espionage and Sedition Acts (along with more than 150,000 vigilantes) to carry out the most brutal campaign against dissents in U.S. history.
Franklin Delano Roosevelt eliminated the last remaining vestiges of the modest presidency. Roosevelt used Wilson’s 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.
War was the health of the presidency during the long twilight struggle against the Soviet Union as well. “The worse matters get,” Harry Truman’s adviser Clark Clifford told him in 1947, “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 national security to justify spying on their political enemies. Richard Nixon might have been the most notorious abuser, 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 we’ve got to try to fuck them,” then ordered up wiretaps, Internal Revenue Service audits, and early-morning raids on steel executives’ homes.
During the Eisenhower 1950s and the JFK/LBJ 1960s, the newly ascendant conservative movement coalescing around Barry Goldwater and William F. Buckley’s National Review was the most potent source of criticism of the imperial presidency.
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; they were supported by a conservative commentariat that refocused its ire on the Democratic Congress and the left-leaning press. “I didn’t like Nixon until Watergate,” National Review stalwart M. Stanton Evans once quipped.
Although Americans finally recovered their native skepticism toward power after Vietnam and Watergate, 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 National Public Radio, the Kaiser Family Foundation, and Harvard’s John F. Kennedy School of Government put it pithily: “Americans distrust government, but want it to do more.”
The Bush administration’s extraconstitutional innovations in response to the 9/11 terrorist attacks are by now all too familiar. John Yoo, David Addington, and other members of the president’s 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 terror—in other words, indefinitely—without 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. There’s 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, former head of the president’s Office of Legal Counsel, describes the prevailing atmosphere within the executive branch after 9/11, one where the president’s advisers 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 administration’s absolutist theories of executive power, often clashed with Dick Cheney’s 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 executive’s 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 Canada’s 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.
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 president’s power to use the standing army to enforce order at home.
The new exceptions to the act gave the president the power to fight a militarized federal war on hurricanes, declaring himself supreme military commander in any state where he thought emergency conditions warranted it. In a move that underscored the benefits of divided government, Congress this year restored pre-Katrina checks on the president’s power to use standing armies at home. Yet Katrina’s aftermath showed that when the public demands that the president protect Americans from the hazards of cyclical bad weather, it creates the conditions for a large-scale executive power grab. And we cannot be sure that Congress will hold the line after future national disasters.
To understand is not to excuse: No president should have the powers President Bush has sought and seized during the past 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.
Barack Obama has done more than any presidential candidate in memory to boost expectations for the office. Obama’s stated positions on civil liberties may be preferable to McCain’s, but if and when a car bomb goes off somewhere in America, would a President Obama be able to resist resorting to undeclared wars and the Bush theory of unrestrained executive power? As a Democrat without military experience, publicly perceived as weak on national security, he’d have much to prove.
As Jack Goldsmith put it in his 2007 book, “For generations the Terror Presidency will be characterized by an unremitting fear of devastating attack, an obsession with preventing the attack, and a proclivity to act aggressively and preemptively to do so. . . . If anything, the next Democratic president—having 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 attack—will 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 Bush’s 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, they’ll respond by vilifying the officeholder and looking for another knight on horseback to set things right again.
Gene Healy, a senior editor at the Cato Institute, is the author of The Cult of the Presidency: America’s Dangerous Devotion to Executive Power(Cato, 2008), from which this essay was adapted. His website is www.genehealy.com. Reprinted from Reason(June 2008), a libertarian journal. Visit it online at www.reason.com.