The American Presidency
Expanding presidential power threatens the Republic, writes political scientist David Gray Adler, Ph.D.
Of all the great challenges facing President-Elect Barack Obama, few will be as important as the restoration of a constitutional presidency. The tremendous concentration of power in the modern executive—built atop presidential aggrandizement and usurpation, congressional abdication and judicial acquiescence—is pregnant with menace. It has left in its wake a long list of casualties, including the doctrines of separation of powers, checks and balances, and enumeration of powers.
So it is little wonder that many leading scholars are concerned that the presidency—an overgrown office swollen with power yet subject to few limitations—represents a permanent threat to the Republic.
Presidential government finds its highest expression in the presidency of George W. Bush, for he has strip-mined the Constitution, and reduced the trumpet sound of the rule of law to the tinkling of crystal.
Bush's former attorney general, Alberto Gonzales, for example, declared that in a war on terror, constitutional principles are "quaint." The president, Gonzales claimed, possessed the authority to designate, seize and imprison any American citizen as an "enemy combatant," indefinitely, without access to legal counsel and a judicial hearing. The courts, Gonzales added, had no authority to review the president's decision.
The Bush Administration, moreover, has maintained that the president could suspend the Geneva Convention and the federal laws that prohibit torture, and order domestic surveillance of Americans' e-mails and telephone calls, initiate preventive war and create military tribunals, all without congressional authorization.
With the possible exception of Richard Nixon, no American president has asserted such a thoroughly Cromwellian view of executive power. And that may be unfair to Nixon. In the title of his 2005 book, former Nixon White House Counsel John Dean, a Bush Administration critic, justly characterized the behavior of the Bush White House as "Worse than Watergate."
The mushrooming growth in executive power has its roots in the presidencies of both parties, Republican and Democratic, conservative and liberal alike. The Imperial Presidency took flight in the season of Lyndon Johnson and Richard Nixon. It has remained aloft, even if it has, on occasion, flown at a somewhat lower altitude under such relatively modest presidents as Gerald Ford and Jimmy Carter.
In the hands of more aggressive executives—Ronald Reagan, George H.W. Bush, and Bill Clinton—the embrace of unilateralism and the chorus of expansive claims of presidential power were undeterred by constitutional restraints. It was of no moment, apparently, that assertions of executive power found no support in the text, structure, history or architecture of the Constitution. This was the condition of the presidency that George W. Bush inherited when he assumed office. It was imperial when he came to it, and it will be imperial when he leaves it.
The rise of Presidential Government is a reflection of the fact that Congress has lost the interest, courage and foresight to defend its constitutional powers and position. A Congress bent on curtailing presidential power could do so. But that requires political will. Congress has lost its institutional pride; as a result, the various legislative checks on presidential power lie prostrate. Indeed, there are good reasons to question the viability of Congress as a co-equal branch of government.
The Framers of the Constitution were entitled to believe that they had succeeded in their historical quest to subordinate the executive to the rule of law. It was surely one of their most ambitious, if not lasting, goals. In America today, government by executive fiat is in full sprint.
In the name of Washington and Madison and Jefferson, how might a constitutional presidency be restored? We might look to the resuscitation of constitutional mechanisms, but that would require reliance on the very institutions that have failed us. There seems very little wrong with the constitutional blueprint; the principal problem, rather, lies in the unwillingness of the men and women in positions of power, those at the helm, duly to perform their responsibilities and duties.
We may have reason to believe, or at least the "audacity to hope" (to borrow a phrase), that an Obama Administration will restore to Congress powers that have been usurped by the executive, but history casts doubt on the emergence of presidential humility since power acquired is seldom returned. And should Obama rebuke the claims to power asserted by his predecessors, what about the next President? There is, moreover, little likelihood that we can rely on our representatives in Congress to reclaim their institutional pride.
In the Virginia Ratifying Convention, the great orator Patrick Henry told his fellow citizens: "If you depend on your President's and Senator's patriotism, you are gone."
In a Republic, there is no substitute for a vigilant citizenry. The remedy we are seeking is to be found in the American people. It is to be found in a citizenry, from Main Street to Wall Street, that summons the will to nurture and nourish the virtues and values of constitutionalism. It is to be found in a body of Citizen Patriots who demand governmental adherence to the Constitution.
Restoration of a constitutional presidency will pivot on a heightened public awareness about presidential usurpation of power and subversion of the Constitution. It may help if Americans summon the ghosts of 1776—those harpies of power that compelled a generation to answer the trumpet call: an imperious executive, oppression, assaults on liberties, absolutist pretensions, disregard for constitutional principles and limitations, and the assertion of arbitrary power.
The rule of law is fleeting. It remains within our grasp, however tenuous, but we must seize it. If we do not, we have only ourselves to blame.
David Gray Adler, Ph.D.