Law and the President
THE EXECUTIVE UNBOUND: AFTER THE MADISONIAN REPUBLIC. By Eric A. Posner and Adrian Vermeule. New York, N.Y.: Oxford University Press. 2010. Pp. 3, 249. $29.95.
How much does law in fact constrain the exercise of presidential power, in both domestic and foreign affairs? How much should law constrain presidential power?
It is widely recognized that the expansion of presidential power from the start of the twentieth century onward has been among the central features of American political development. While Andrew Jackson, with his rhetorical creation of the “plebiscitary presidency,” and Abraham Lincoln, with his invocation of presidential war powers during the existential military threat of the Civil War, were among the most powerful and activist of all presidents, the nineteenth-century presidency was essentially a narrowly understood office that presided over a highly decentralized and fragmented political system. What Theodore Roosevelt later began identifying and celebrating as the “Jackson-Lincoln” school of presidential practice remained latent through most of the nineteenth century. As the timing of Roosevelt’s comments signals, it was the Progressive movement, first at the state and then at the national level, that turned to executive power as the institutional vehicle through which to bypass corruption-plagued, paralyzed legislative bodies and status quo–affirming courts, and realize the Progressives’ agenda of an activist government, responsive to average voters, that would ensure health, safety, and economic fairness in a world transformed by industrialization and concentration of economic power.
A string of Progressive Era presidents and intellectuals revived, enhanced, legitimated, and institutionalized the expansive presidency with which, with ebbs and flows, we have since lived. Woodrow Wilson, in his later years as a scholar before assuming office, urged presidents to view their office as “anything [they have] the sagacity and force to make it.” Herbert Croly, a key architect of the Progressive movement, has been characterized as seeking to realize “Jeffersonian ends through Hamiltonian means.” Indeed, this renaissance of Alexander Hamilton as the original visionary of the energetic President, capable of cutting through factional division and corruption, was characteristic and oft repeated. Calling Hamilton “the most brilliant American statesman who ever lived, possessing the loftiest and keenest intellect of his time,” Roosevelt conjured up Hamilton’s spirit; even Roosevelt’s more conservative successor, William Howard Taft, similarly praised Hamilton as “our greatest constructive statesman.” Meanwhile, Progressives disparaged the Constitution’s system of checks and balances as a blueprint for government “divided against itself,” a government “deliberately and effectively weakened,” that could be forged into an instrument of effective power only through the dominating, energetic leadership of a commanding President.
Thus, long before the New Deal, those seeking an activist national government had envisioned a powerful presidency as the vehicle through which their aims could (and had to) be realized. In the aftermath of World War II, Congress’s power was further discredited in foreign affairs and military matters by its abject failure in the 1930s to come to terms with the threat that the rise of Nazi Germany posed — a failure that continued to limit Congress’s credibility in these areas for thirty or so years after the war. And as is well known, the ensuing rise of the Cold War, the national security state, and the constant specter of instant nuclear annihilation further enhanced the legitimacy (and reality) of ever-expanding presidential power.
Only in the 1970s did this general thrust in the direction of enhanced presidential power confront more complex terrain. In the aftermath of the presidentially led Vietnam War, increased U.S. participation in wars of choice rather than of necessity, and President Nixon’s domestic abuses of the office, liberals (in particular) developed anxiety and ambivalence about the powers of the presidency. The work of many of the great liberal constitutional scholars for whom the Vietnam War was a formative experience reflected this newfound concern; in the mid-1970s, Congress enacted a series of statutes designed to cabin presidential power.
Yet this transformation of perspective about the proper bounds of presidential power was countered by the rise of a transformative conservative movement, cresting initially in President Reagan’s 1980 election, which had as its aim a dramatic undoing of the New Deal consensus that had reigned since the 1940s. And like all modern insurgent national movements, the new Republican majority viewed presidential power as the means through which its ambitions would be most effectively and immediately realized. Conservatives, the one source of efforts to urge limitations on presidential power throughout the twentieth century, now became the leading proponents of the energetic, forceful presidency that had been transforming American government throughout the century. Thus, as Democratic presidents of the 1990s and 2000s became more ambivalent about presidential power than their predecessors, Republican presidents seized the scepter of expansive presidential power. And with their greater control of the presidency since the 1980s, Republicans had greater opportunity to implement their vision — a vision that included renewed emphasis on the “unitary executive branch” theory of government administration as well as more aggressive assertions of autonomous Article II powers, which Congress purportedly could not restrict, than in the past. In addition, as presidents of both parties found the path to legislative partnership blocked by the rise of hyperpolarized political parties, particularly during divided government, presidents found new tools to set policy unilaterally, without congressional endorsement. Thus, presidential power expanded through liberal hands for most of the century, and just as liberals began to have second thoughts, conservatives propelled the expanding presidency further.