The Limits of Presidential Power

The Limits of Presidential Power:All The President’sPower
The Daily Reckoning Special Position Paper
By Thomas E. Wood Jr.

Vice President Dick Cheney recently told the Washington Post that when the Bush administration entered office, it was determined to reinvigorate the presidency and reverse the steady reduction in executive power and prerogative that had persisted since Watergate. But what reduction could the vice president have had in mind? “The vice president,” noted Sen. John E. Sununu (R-N.H.), “may be the only person I know of that believes the executive has somehow lost power over the last 30 years.”

Whether or not the vice president was correct in his analysis of the state of the presidency in the year 2000, there can be no question that since then George W. Bush has dramatically expanded the powers of the president – primarily though not exclusively in matters pertaining to the war on terror.

One of the most notorious examples involved the torture of prisoners, a power the administration claimed in the face of law and international agreements to the contrary. “The assertion in the various legal memoranda that the President can order the torture of prisoners despite statutes and treaties forbidding it was another reach for presidential hegemony,” wrote Anthony Lewis in the New York Review of Books. “The basic premise of the American constitutional system is that those who hold power are subject to the law…Bush’s lawyers seem ready to substitute something like the divine right of kings.”

The Limits of Presidential Power: Domestic Surveillance

Arguably the greatest controversy of all was the revelation at the end of 2005 that the Bush administration had engaged in domestic surveillance without the necessary warrants. James Bamford, author of two books on the National Security Agency, points out the pertinent aspects of what would appear to be the relevant law: the Foreign Intelligence Surveillance Act (FISA), passed in 1978. According to Bamford, then-Attorney General Griffin Bell testified before the intelligence committee that FISA acknowledged no “inherent power of the President to conduct electronic surveillance.”

As Bell himself put it, “This bill specifically states that the procedures in the bill are the exclusive means by which electronic surveillance may be conducted.”

In the wake of the Sept. 11 attacks, Bush administration officials spoke again and again of the president’s inherent powers. But the pertinent statute in this case disclaims any such powers and requires that the president proceed according to the guidelines set out by Congress, which involves securing warrants from a special court. As things stand, the president is claiming a right to engage in surveillance of any American, unrestrained by any institutional check, in the service of the war on terror – a war that by its very nature must go on indefinitely and, indeed, that we can never really know is truly over.

According to Attorney General Alberto Gonzales, the reason the administration did not seek to revise FISA to give the president the clear and unambiguous power to order these wiretaps was that even a Republican Congress would not have gone along. In a Dec. 19 press briefing, the attorney general said, “We have had discussions with Congress in the past – certain members of Congress – as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat, and we were advised that that would be difficult, if not impossible.”

The administration’s claim, as set forth by the attorney general, is that Congress implicitly agreed to such wiretaps when in the days following Sept. 11 it authorized the use of force against the perpetrators and their allies. Of course, if Congress really had authorized them, it is not clear why it would be so difficult for the administration to persuade Congress to amend FISA accordingly in light of this permission.

The Limits of Presidential Power:The New Deal

Gonzales’s argument calls to mind H.L. Mencken’s 1937 “Constitution for the New Deal,” a satirical rewrite of the U.S Constitution, which says of the attorney general, “It shall be his duty to provide legal opinions certifying to the constitutionality of all measures undertaken by the President.”

As the controversy over the wiretapping developed, it was only a matter of time before the “even Lincoln did it” argument would be heard. GOP apologists did not disappoint, reminding Americans that Honest Abe engaged in massive violations of civil liberties while president. But Tom DiLorenzo raises the proper reply to such claims in the form of remarks by Supreme Court Justice David Davis – a personal friend of Lincoln – in the 1866 case Ex Parte Milligan: “The constitution of the United States is a law for rulers and people, equally in war and peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government.”

As DiLorenzo suggests, if the government were to be given carte blanche during wartime, all that would be necessary to whittle away the people’s liberties would be to concoct – or to provoke – an endless series of crises.

This is all deeply disturbing, to be sure. But to hear much of the Left tell it, the presidency of George W. Bush is a bizarre aberration in the history of the presidency and more or less sui generis. I have no objection to those who describe the Bush presidency as utterly disastrous, and I do not mean to excuse the president by recalling that the ideological and institutional roots of the imperial presidency extend back at least a century. My point, rather, is that a bit of history can enrich our understanding.

The Limits of Presidential Power:Theodore Roosevelt

President Rutherford Hayes once warned that although American chief executives had to that point been conservative men wedded both to precedent and to modesty in the exercise of presidential power, a future president committed to concentrating power in his hands could make of the office what he wished. That future president would prove to be Theodore Roosevelt, a figure loved and admired to this day by Left and Right alike.

TR did not merely extend executive prerogative here or there; he put forth a full-fledged philosophy of the presidency that attempted to justify his dramatic expansion of that office. He contended that the president, by virtue of his election by the nation as a whole, possessed a unique claim to be the representative of the entire American people – a position taken by Andrew Jackson during the 1830s and for which he was sharply rebuked by John C. Calhoun. Each member of the executive branch, but especially the president, “was a steward of the people bound actively and affirmatively to do all he could for the people.” He could, therefore, “do anything that the needs of the nation demanded” unless expressly prohibited in the Constitution. “Under this interpretation of executive power,” TR later reflected, “I did and caused to be done many things not previously done. … I did not usurp power, but I did greatly broaden the use of executive power.”

Since TR believed himself to be doing the people’s will, and since he believed his own rhetoric that portrayed the president as the people’s unique representative in American government, his need to fulfill this special mission overrode concerns about the separation of powers. He remarked privately that in the United States, “as in any nation which amounts to anything, those in the end must govern who are willing actually to do the work of governing; and in so far as the Senate becomes a merely obstructionist body it will run the risk of seeing its power pass into other hands.”

The Limits of Presidential Power:Executive Orders

It was TR who pioneered rule by executive order as a governing style among American presidents. Many Americans rightly howled during the 1990s when Bill Clinton’s aide Paul Begala famously said of executive orders, “Stroke of the pen, law of the land. Kinda cool.” But Clinton, who once called Theodore Roosevelt his favorite Republican president, was only exercising a power that TR had made a major feature of the presidential office early in the century.

There are uses of executive orders that are unobjectionable from any standpoint. Thus it was by means of an executive order that George Washington, upon taking office as the first U.S. president, requested that the outgoing government prepare for him a report on the state of the country. A better-known example involves the presidential pardons that President Andrew Johnson issued by means of executive order to ex-Confederates following the Civil War.

There are plenty of examples of the abuse of executive orders as well. As early as 1793, the subject had already led to confrontation between Congress and the president when George Washington declared the United States neutral in the wars of the French Revolution. Congress later ratified the president’s decision, but in the absence of statutory authority or constitutional prerogative, Washington’s action, however innocuous it seems now, was viewed by some early Americans as an abuse of presidential power.

To appreciate the transformation that occurred in American government under TR, consider the number of executive orders issued by the presidents of the late 19th century. Presidents Hayes and Garfield each issued none. Arthur issued three, Grover Cleveland (first term) six, Benjamin Harrison four, Cleveland (second term) 71, and McKinley 51. TR issued 1,006.

The Limits of Presidential Power: Philosophy of the Presidency

Now, it is true that TR served nearly two terms. But that figure is so much higher than that of his predecessors that it reveals a vastly different philosophy of the presidency from that held by those who preceded him.

To take just one domestic example, TR intervened in the United Mine Workers strike in 1902, ordering the mine owners to agree to arbitration. Should they instead remain obstinate, he threatened to order the Army to take over and operate the coalmines. When informed that no constitutional authorization existed for such a brazen act of confiscation, he replied, “To hell with the Constitution when the people want coal!”

In foreign affairs, an excellent if consistently overlooked example concerns the details of Roosevelt’s decision to take over the customs houses in the Dominican Republic. In what has become known as the Roosevelt Corollary to the Monroe Doctrine, TR had declared in 1904 that although the United States had no territorial ambitions in this hemisphere, cases of “chronic wrongdoing” on the part of a Latin American country that might invite occupation by a European power would force America’s hand. To forestall European occupation, the United States would intervene to restore order and to see that all just claims were satisfied.

When it looked in early 1905 as though one or more European countries might intervene in the Dominican Republic to recover outstanding debt, Roosevelt put the corollary into effect for the first time by declaring that the United States would administer the Dominican Republic’s customs collections to forestall any such foreign intervention.

Here’s the part nearly all historians leave out. From the beginning, TR apparently hoped to be able to avoid consulting the Senate at all, even though Senate approval is required to ratify a treaty. The agreement reached with the Dominican Republic was set to take effect Feb. 1, 1905, a mere 11 days after it was signed – obviously too short an interval to allow for Senate discussion or approval.

The president relented and decided to submit the treaty to the Senate after all when he found himself faced with overwhelming opposition, even among his own supporters. Sen. Augustus Bacon objected, “I do not think there can be any more important question than that which involves the consideration of the powers of the President to make a treaty which shall virtually take over the affairs of another government and seek to administer them by this Government, without submitting that question to the consideration and judgment of the Senate.” For his part, Sen. Henry Teller added, “I deny the right of the executive department of the Government to make any contract, any treaty, any protocol, or anything of that character which will bind the United States. … The President has no more right and no more authority to bind the people of the United States by such an agreement than I have as a member of this body.”

After the treaty was finally submitted to the Senate, a special session closed without taking a vote on it. Exasperated, Roosevelt simply defied the Senate, drawing up what we would today call an executive agreement, the foreign-policy equivalent of an executive order. Roosevelt later recalled in his autobiography: “I went ahead and administered the proposed treaty anyhow, considering it as a simple agreement on the part of the Executive which could be converted into a treaty whenever the Senate acted.” Two years later the Senate did finally approve a modified version of the treaty. It hardly mattered to TR. “I would have continued it until the end of my term, if necessary,” he wrote, “without any action by Congress.”

The Limits of Presidential Power:Rush-Bagot Agreement

Before TR’s accession to power, the last time a matter of real significance had been carried out by means of an executive agreement was the Rush-Bagot Agreement of 1817 between Britain and the United States that limited naval armaments on the Great Lakes.

But even here, President James Monroe eventually sought the opinion of the Senate as to whether it required ratification; and while that body gave no answer, it did approve the agreement by a two-thirds vote. It fell to TR to convert the executive agreement into a major instrument of American foreign policy.

In 1909, Roosevelt told his son, “I have been a full President right up to the end.” He went on: “[W]henever I could establish a precedent for strength in the executive, as I did for instance as regards external affairs in the case of sending the fleet around the world, taking Panama, settling affairs of Santo Domingo and Cuba; or as I did in internal affairs in settling the anthracite coal strike, in keeping order in Nevada this year when the Federation of Miners threatened anarchy, or as I have done in bringing the big corporations to book – why, in all these cases I have felt not merely that my action was right in itself, but that in showing the strength of, or in giving strength to, the executive, I was establishing a precedent of value.”

The Limits of Presidential Power:Woodrow Wilson

Woodrow Wilson, Theodore Roosevelt’s Democratic opponent in the 1912presidential race, largely shared TR’s view of the presidency, belyingclaims then and now that that election represented a titanic conflict ofclashing ideologies. Wilson himself admitted his inability to discern anymajor differences between the two parties, apart from the Republicans’greater allegiance to the protective tariff.

In Constitutional Government in the United States, Wilson described thepresident in terms that TR could only have cheered:

“The nation as a whole has chosen him, and is conscious that it has noother political spokesman. His is the only national voice in affairs. Lethim once win the admiration and confidence of the country, and no othersingle force can withstand him, no combination of forces will easilyoverpower him. His position takes the imagination of the country. He isthe representative of no constituency, but of the whole people. When hespeaks in his true character, he speaks for no special interest. If herightly interpret the national thought and boldly insist upon it, he isirresistible; and the country never feels the zest of action so much aswhen its President is of such insight and calibre. Its instinct is forunified action, and it craves a single leader.”

The president, said Wilson, is “at liberty, both in law and conscience,to be as big a man as he can.”

“Conservatives,” reports historian Arthur Ekirch, “complained of theusurpation of authority by the government and its executive branch”during the Progressive Era. Even one of the presidents during the ProgressiveEra voiced misgivings: William Howard Taft, a man of sober disposition whowas much more at home on the Supreme Court than he ever was as president,vainly warned of this growth in presidential power and of the greatdifficulty in keeping that power restrained once unleashed. He wasswimming against an overwhelming tide.

The danger of the view of the presidency delineated by Theodore Rooseveltand Woodrow Wilson is not simply that in the name of doing the people’swill the president will disregard the separation of powers or otherimportant institutional restraints.Another peril is that the presidentmay define the people’s will in a self-serving way and then carry out hisown agenda in the name of serving the people.

The Limits of Presidential Power:Nothing Less Than Victory

Throughout 2005, for example, President Bush ceaselessly insisted,supposedly on behalf of the American people, that our country would notgive in to car bombers, that we would accept nothing less than victoryand similar sentiments drawn from the administration’s traditionalboilerplate. This in spite of poll numbers that clearly indicated thepeople’s restlessness about the war and their desire to see Americanswithdrawn from Iraq relatively promptly. So on behalf of what “Americanpeople” has Bush been speaking? Is he uniquely equipped to divine the“general will” that transcends such crude means of discerning publicopinion as actually asking people what they think?

To be sure, the polling data have not always been easy to comprehend andmay reflect Americans’ ambivalence about what the United Statesgovernment should do now that it has involved itself in Iraq. The point, though, is
that this ambivalence certainly precludes sweeping presidentialpronouncements about what the American people want and how the chiefexecutive might bring about a swift realization of their desires.

During the 1930s, the ill-fated Ludlow Amendment would have required anational referendum before the nation could be committed to war.(Exceptions were made for outright invasion of American soil.) PresidentFranklin Roosevelt was staunchly, even furiously, opposed. Once again,the president, who arrogates to himself the responsibility of carrying outthe will of the people, turned out to be relatively blase about finding out
their actual opinions.

The very initiation of the war in Iraq constituted a breathtakingexercise of presidential power but one that has grown so common that it is hardlyeven noticed or commented upon any longer except by the occasional isolated constitutionalist. Until 1950, when Harry Truman committedAmerican troops to Korea without a declaration of war from Congress, it was generally understood that the intent of the Constitution’s framershad been that while the president, in his capacity as commander in chief,would direct American wars, Congress was to declare them. So momentous adecision could not be reposed in the hands of a single man.

The Limits of Presidential Power:The Risk of War

Point this out today-as I did in The Politically Incorrect Guide toAmerican History-and you find yourself on the wrong end of a lecture byindignant neoconservatives. The president has deployed troops abroadhundreds of times without the consent of Congress, they insist.

So what of these hundreds of cases of presidential warmaking? This claimoriginated-surprise!-with the U.S. government itself. At the time of theKorean War, a number of congressmen contended that “history will showthat on more than 100 occasions in the life of this Republic the President asCommander in Chief has ordered the fleet or the troops to do certainthings which involved the risk of war” without the consent of Congress.In 1966, in defense of the Vietnam War, the State Department adopted asimilar line: “Since the Constitution was adopted there have been atleast 125 instances in which the President has ordered the armed forces to takeaction or maintain positions abroad without obtaining prior congressionalauthorization, starting with the ‘undeclared war’ with France(1798-1800).”

I have argued elsewhere that the quasi-war with France in no way lendssupport to those who favor broad presidential war powers. As for therest, the great presidential scholar Edward S. Corwin helpfully observed that
this lengthy list of alleged precedents consisted mainly of “fights withpirates, landings of small naval contingents on barbarous orsemi-barbarous coasts, the dispatch of small bodies of troops to chasebandits or cattle rustlers across the Mexican border, and the like.” Inother words, the “hundreds of times” argument, like so much else aboutthe imperial presidency, is a grotesque fraud.

As for the delicate souls whose consciences were so deeply troubled byGeorge W. Bush’s unilateral initiation of war in 2003, where were they in1999 when Bill Clinton, acting through NATO and siding with the Muslimsof Kosovo, orchestrated a bombing campaign against Serbia without theconsent of Congress? David Gray Adler, an expert on foreign policy and theConstitution, went so far as to call Clinton’s action against Serbia “oneof the most flagrant acts of usurpation of the war power in the historyof the Republic.” That’s saying something, since presidents from bothpolitical parties had openly defied the Constitution’s distribution ofwar powers between Congress and the president for nearly half a century bythe time of the Kosovo intervention.

Clinton’s disregard of the Constitution, Adler argued, was unique sinceit was “the first time in our history that a president waged war in the faceof a direct congressional refusal to authorize the war.” Adler is right:legislation that would have authorized the president to conduct his airwar against the Serbs failed to pass the House on April 28, 1999, butClinton went forward with his military plans anyway. “Clinton’s defianceof the House vote,” Adler concluded, “raised arbitrary executive power toa new and dangerous pitch.” Apart from a few pockets of principledresistance here and there, where were our present guardians ofconstitutional liberty?

“The contest for ages,” Daniel Webster once said, “has been to rescueliberty from the grasp of executive power.” The contest today, on theother hand, far from an effort to limit executive power and its inherentdangers, amounts instead to a struggle to gain executive power in orderto wield it against ideological adversaries and on behalf of  some politicalagenda.

This is what Robert Nisbet meant when he noted in the wake of Watergatethat that scandal’s long-term impact would not be to weaken theexecutive, since even Richard Nixon’s liberal opponents still believed in a strong
presidency-provided it was occupied by one of their own. “There are toomany powerful voices among intellectuals-in press, foundation, andelsewhere-that want a royal President provided only that he is the rightkind of individual.”

The lesson that all too many conservatives seem to have drawn from theClinton years is not that executive power needs to be better defined andcontrolled but that it needs to be exercised by a Republican. Likewise,one might think two terms of a George W. Bush presidency would teach theLeft a thing or two about executive power, but for all their carping atthe president, most liberals seem quite happy with the status quo as longas the president issues executive orders on behalf of fashionable causes.Then when another neoconservative takes office and uses that power asGeorge W. Bush has, the Left will trot out its now familiar routine ofshock and indignation. Some opposition.

Both liberals and at least some conservatives must share the blame forcontributing to an ideological climate of which the inevitable outcome isthe unrestrained executive under which our Republic now groans.Ultimately, though, apportioning responsibility for this transformationof the presidency, in which its occupant can flagrantly and defiantlyviolate the law, is of much less urgency than addressing-and, one hopes,correcting-the present debacle.

Former congressman Bob Barr, a conservative from Georgia, has it right:“The American people are going to have to say, ‘Enough of this businessof justifying everything as necessary for the war on terror.’ Either theConstitution and the laws of this country mean something or they don’t.It is truly frightening what is going on in this country.”

Regards,

Thomas E. Woods Jr.
for The Daily Reckoning

Thomas E. Woods Jr. is the author of the New York Times bestseller The Politically Incorrect Guide to American History. The above essay originally ran in The American Conservative magazine.

Here are otherDaily Reckoningarticles about All The President’s Power:

Something Wicked This Way Comes – 12/09/05
by Bill Bonner “The force of a correction is equal and opposite to the deception and delusion that preceded it. Alan Greenspan, George W. Bush, and all the great nabobs of positivism assure us that there is nothing to fear.”

Man-Made Disasters – 10/27/2005
by Dr. Marc Faber “The Bush administration – despite constant warnings from the Southeast Louisiana Flood Control Project – elected to under-fund the Lake Pontchartrain levee project by nearly 80%.”

Bread, O.J. – and Mortgages? – 05/25/2005
by Mike Shedlock “New home sales are at an all-time high, and yet the president wants to give tax breaks to an industry that has been setting record profits for the last four years. What’s wrong with this picture?”

Useful Links about Presidential Power:

The American Conservative– Apublication that aims to “ignite the conversation that conservatives ought to have engaged in since the end of the Cold War, but didn’t.”
Vital Presidential Power – An Essay by William Kristol regarding the issue

of executive power and the law in our constitutional order is more complicated than the current debate over eavesdropping would suggest.
Pentagon Expanding Its Domestic Surveillance Activity – The Defense Department has expanded its programs aimed at gathering and analyzing intelligence within the United States, creating new agencies.
Bush defends domestic surveillance program – President Bush defended anew his program of warrantless surveillance Thursday, saying “there’s no doubt in my mind it is legal.”

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