The CULT of the PRESIDENCY
America's Dangerous Devotion to Executive PowerBy GENE HEALY
CATO INSTITUTE
Copyright © 2008 Cato Institute
All right reserved.
ISBN: 978-1-933995-19-9
Contents
Acknowledgments...................................................viiIntroduction......................................................11. Our Chief Magistrate and His Powers............................152. "Progress" and the Presidency..................................493. The Age of the Heroic Presidency...............................794. Hero Takes a Fall..............................................1055. Superman Returns...............................................1376. War President..................................................1657. Omnipotence and Impotence......................................1978. Why the Worst Get on Top ... and Get Worse.....................2339. Toward Normalcy................................................267Afterword.........................................................299Notes.............................................................313Index.............................................................373
Chapter One
Our Chief Magistrate and His Powers
The best rulers are always those to whom great power is intrusted.... It is, therefore, manifestly a radical defect in our federal system that it parcels out power and confuses responsibility as it does. The main purpose of the Convention of 1787 seems to have been to accomplish this grievous mistake. -Woodrow Wilson, Congressional Government (1885)
On Friday, June 1, 1787, the Philadelphia Convention turned to the seventh resolution of the Virginia Plan introduced three days earlier, "that a national Executive be instituted, to be chosen by the national Legislature." With George Washington, the delegates' unanimous choice for convention president, looking on, James Wilson of Pennsylvania made a bold suggestion. He moved "that the Executive consist of a single person." After South Carolina's Charles Pinckney seconded the motion, "a considerable pause" ensued.
What sort of officer would this be? An elected monarch, as several of the delegates feared? Or something far less imposing?
The title the delegates settled on for the chief executive was humble enough. As commonly used in the 18th century, the term indicated the presiding officer of a legislature, with an emphasis on the "presiding" function, "almost to the exclusion of any executive powers," a position "usually [held by] men whose talents and reputations matched their office."
Republican in Form and Substance
In fact, some found the very modesty of the title irritating. Even "fire companies and a cricket club" could have a "president," Vice President John Adams complained shortly after taking his place as presiding officer of the new Senate. On April 23, 1789, three days after arriving in New York-then the seat of the national government- Adams delivered an extensive speech to the Senate insisting that the president and vice president needed honorific titles to lend an air of dignity and majesty to government. At Adams's behest, the Senate appointed a committee to confer with the House of Representatives on what titles would be appropriate.
The House wanted nothing to do with the idea. James Madison, then serving as a representative from Virginia, scorned Adams's effort. "The more simple, the more republican we are in our manners," Madison told his colleagues, "the more national dignity we shall acquire." When the joint committee recommended against "annex[ing] any style or title to [those] expressed in the Constitution," the House unanimously adopted the committee's report.
Yet, Adams wouldn't take no for an answer. At his urging, the Senate appointed a new Title Committee, which on May 9 proposed that the president be addressed as "His Highness, the President of the United States, and Protector of their Liberties." When the Senate moved to postpone consideration of the report, Adams launched into a "forty minute ... harangue" on the "absolute necessity" of titles.
In this debate, Adams had a formidable opponent, Senator William Maclay of Pennsylvania, a man possibly more Jeffersonian than Jefferson, a partisan republican before factions had properly formed. In Maclay's private journal, which remains one of our best records of the proceedings of the first Senate, he condemned the "base," "silly," and "idolatrous" attempt to append quasi-monarchical titles to the nation's new constitutional officers.
A first-generation American of Scots extraction, Maclay lived on a farm in the rural Pennsylvania interior, near Harrisburg. He served only two years in the Senate, and the members of what Maclay saw as an emerging, aristocratic "court party" were no doubt glad to see him go.
Maclay rarely missed a chance to needle his ideological opponents, whom he saw as beggars after "the loaves and fishes of government"- men who favored the "translation of the diadem and scepter from London" to New York. He was up from his chair to object at the merest hint of anti-republican language, such as a reference to the president's "most gracious speech" or a resolution that suggested the president had "rescued" the United States from "anarchy and confusion." When a proposed resolution referred in passing to the "dignity and splendor" of the government, Maclay found even this offensive, telling his fellow senators:
As to the seeking of sounding names and pompous expressions, I thought them exceptionable on that very account, ... that "splendor," when applied to government, brought into my mind, instead of the highest perfection, all the faulty finery, brilliant scenes, and expensive trappings of royal government, and impressed my mind with an idea quite the reverse of republican respectability, which I thought consisted in firm and prudent councils, frugality, and economy.
The Maclay that emerges from the journal is a dyspeptic grouch, the sort of personality that too few people properly appreciate. Yet, as doctrinaire and exacting as Maclay could be, he was also funny and irreverent. He didn't take himself overly seriously, and thus found it impossible not to laugh at his self-important colleagues. Adams caught the worst of it. After the vice president agonized over a point of protocol, asking the senators for advice, "a solemn silence ensued." Maclay struggled to keep from cracking up: "God forgive me, for it was involuntary, but the profane muscles of my face were in tune for laughter in spite of my indisposition." Maclay had to beg divine forgiveness again two weeks later, while confessing that, looking at Adams, he could not help thinking "of a monkey just put into breeches."
When it came to the debate on titles, though, Maclay was deadly serious. Not only were such titles anti-republican, they were unconstitutional: "Let us read the Constitution," he demanded, pointing to Article I, Section 9, Clause 8: "No Title of Nobility shall be granted by the United States." "Appellations and terms given to nobility in the Old World," Maclay declared, were "contraband language in the United States," and could not be applied "to our citizens consistent with the Constitution." Even the phrase "Protector of their Liberties" was objectionable: "The power of war is the organ of protection," Maclay reminded the senators, "this is placed in Congress by the Constitution. Any attempt to divest them of it and place it elsewhere, even with George Washington, is treason against the United States, or, at least, a violation of the Constitution."
In response to Adams's suggestion that citizens of other countries wouldn't respect our constitutional officers unless they arrived bearing fancy titles, Maclay responded with classic American indifference: "As to what the common people, soldiers, and sailors of foreign countries may think of us, I do not think it imports us much. Perhaps the less they think, or have occasion to think of us, the better."
Maclay won the point, and we've ever since referred to the president simply as "the president." But Adams's central role in the debate earned him a title of his own: Proto-Jeffersonians in the House and Senate began referring to the portly vice president as "His Rotundity." The entire episode irritated Washington, who later wrote that Adams had acted without his knowledge and contrary to his wishes. Throughout his presidency, when Washington referred to the office he held, most often he called it the mere "chief magistrate."
The titles debate was significant because it reaffirmed the constitutional settlement: the new president would not be an elected king. The chief magistrate had an important job, but he was not responsible for saving the "national soul": the president would have "no particle of spiritual jurisdiction," the Federalist tells us. Instead, as presidential scholar Jeffrey K. Tulis has put it, unlike "polities that attempt to shape the souls of their citizenry and foster certain excellences or moral qualities by penetrating deeply into the 'private' sphere, the founders wanted their government to be limited to establishing and securing such a sphere."
A government thus limited had no need of a chief executive invested with the powers and responsibilities described by Professor Rossiter in 1956's The American Presidency. As our early constitutional history makes clear, the Founding Generation did not see the president as Rossiter's Protector of the Peace, except perhaps in the narrow, constitutional sense that they expected him to respond to sudden attacks by hostile powers. Neither was he the Voice of the People, the Manager of Prosperity, nor the Chief Legislator. His main duty, as Article II, Section 3, explains, was faithful execution of the laws.
It's difficult for 21st-century Americans even to imagine a president with such a modest role. For as long as any of us have been alive, the president has been the central figure in American political life. But the Framers never thought of the president as America's "national leader." Indeed, for them, the very notion of "national leadership" raised the possibility of authoritarian rule by a demagogue who would create an atmosphere of crisis in order to enhance his power. To foreclose that possibility, the powers of the chief magistrate would be carefully limited.
This chapter will explore the constitutional presidency as envisioned by the Framers. We'll begin by examining the leading modern challenge to the constitutional presidency, unitary executive theory, which, at its most radical, envisions a president with the foreign affairs powers of an elected king. We'll see that, contrary to the arguments of many unitary executive theorists, the Framers explicitly rejected royal prerogative as a model for the republican executive. They left it to Congress to decide whether and when the country would go to war.
We'll then turn to the president's constitutional role on the home front, where republican mores prevented him from bypassing Congress through direct appeals to the American people. The legal and cultural restraints on presidential activism remained surprisingly strong for over a century after ratification. Despite several notable exceptions to the rule, in the 19th century, as Theodore Lowi put it, "chief executives were chief of very little and executive of even less." And yet, though poor in "national leadership," the United States somehow became the richest and most productive nation in the world by century's end.
Unitarian Heresies
In the post-9/11 era, any discussion of the Framers' vision of the presidency-a constitutionally limited office that lacked the power to launch wars or otherwise revolutionize the existing political order-needs to address the very different theory of presidential power embraced by the modern conservative movement and, more importantly, by the men and women who controlled the executive branch from 2001 to 2008. Therefore, to set the stage, we'll need to spend a few pages outlining that theory before we return to 1787 and the quite different vision of the presidency the Framers settled upon at the Philadelphia Convention.
Devotees of the unitary executive theory-unitarians, for short-have long argued for expansive presidential prerogatives in foreign affairs. Even in peacetime, as the unitarians see it, the president has-and should have-broad power to shape American life.
"A Friendly Institution"
Unitary executive theory takes as its starting point the Constitution's so-called vesting clause, Article II, Section 1, which declares that "the executive Power shall be vested in a President of the United States of America." The theory's narrowest and most plausible claim is that the vesting clause gives the president the authority to dismiss subordinate officers within the executive branch. He can, for example, fire cabinet officers without asking the Senate for permission.
Well before 9/11, however, many unitarians made more ambitious claims about the president's powers in foreign affairs. They denounced the 1973 War Powers Resolution as an unconstitutional attempt to limit the president's ability to engage in hostilities abroad and insisted that the Reagan administration had every right to secretly raise money for the Contras, despite a statute that clearly prohibited such activity.
Though unitarians emphasize their doctrine's Hamiltonian pedigree, it really emerged as a coherent body of thought during the Reagan years, as attorneys in the administration's Office of Legal Counsel employed it to assert control over the federal bureaucracy and resist post-Watergate constraints on presidential power. The Right's blossoming affection for the executive branch was a curious development. From the beginning of the modern conservative movement, with the founding of William F. Buckley's National Review in 1955, conservatives had been the leading critics of expansive theories of presidential power, seeing them as schemes to empower activist liberalism. But by the time of Reagan's ascendancy, a different view prevailed. As Steven Calabresi, one of the leading unitarians, and a special assistant to Reagan's attorney general Edwin Meese, explained recently, "Conservatives who came of age in the '70s and '80s viewed the presidency as a friendly institution." A generation of conservative lawyers associated with the Federalist Society, which Calabresi helped found, has been raised unitarian, and many of them have gone on to positions within the executive branch and federal judiciary.
After 9/11, unitary executive theory took on new urgency and expanded in new directions. Unitarians within and without the Bush administration argued that the president had the power to start preventive wars; to order torture, even where prohibited by treaty and statute; to arrest terrorist suspects-even Americans captured on American soil-and hold them without legal process; and to engage in domestic surveillance outside the statutory framework set up by Congress.
John Yoo and the 9/11 Constitution
The most prominent figure behind this radical version of "energy in the executive" is John Yoo, the wunderkind law professor who served as the legal craftsman for some of the administration's most controversial policies in the War on Terror.
Despite his soft voice and mild manners, Yoo doesn't shy from conflict. A right-wing legal academic at the University of California, Berkeley's Boalt Hall, Yoo is married to the daughter of liberal, antiwar broadcaster Peter Arnett, which must make the holiday season interesting.
Yoo joined Boalt's faculty in 1993, a year out of law school. Shortly thereafter, he took a sabbatical to clerk for Justice Clarence Thomas. Yoo's coclerks often teased him about his ability to "channel" the Framers. One recalls ribbing: "John, break out the crystal ball and tell us what the Framers thought," with Yoo playing along: "Yes, I consulted the Framers. You're all wrong, and I'm right."
What did Professor Yoo discover while "channeling" the Framers throughout the 1990s? Something counterintuitive, to say the least: the Framers' model for the war powers of the chief executive turns out to be none other than George III and his predecessors. The Framers, Yoo argued, understood "the executive power" in light of the British constitutional tradition, and in that tradition, taking the country into war was a royal prerogative. Though Article I, Section 8, of the Constitution gives Congress the power "to declare War," that power, Yoo argued, was far narrower than most modern scholars understood it to be, and it did not limit the president's ability to wage war at the time of his choosing.
Given the boldness of Yoo's thesis, and the impressive depth of his scholarship, by the late 1990s, Yoo had become a Federalist Society favorite. After George W. Bush took office in 2001, Professor Yoo took another leave of absence from Berkeley to serve as deputy assistant attorney general in the Justice Department's Office of Legal Counsel. Two months after he joined OLC, the twin towers came down, and the 34-year-old Yoo was well placed to be of service to the Bush team. He soon garnered influence well beyond what his youth or position in the OLC hierarchy would ordinarily warrant.
In large part, that was because of Yoo's inclination to tell the administration that no treaty, no statute, and no coordinate branch of government could stand in the president's way when he acts in the name of American national security. That's not to suggest that Yoo was a pliable opportunist, willing to tailor his legal opinions for the sake of bureaucratic advancement. What Yoo argued at OLC was consistent with what he had published as a legal scholar and with what he's argued since leaving the government. As Georgetown University's David Cole has put it, Yoo "was the right person in the right place at the right time.... Here was someone who had made his career developing arguments for unchecked power, who could cut-and-paste from his law review articles into memos that essentially told the president, 'You can do what you want.'"
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