In response to: Congress and Deliberation in the Age of Woodrow Wilson: An Elegy
Appearing in this space is a privilege; having the benefit of responses from scholars of such stature is especially so. I appreciate the careful and respectful reading both Stephen Knott and George Thomas gave to a confessedly polemical essay. I find much with which to agree in their replies, and even more about which to think. But sport compels me to reply, so, in order, I shall.
Steve, observing my tendency toward overstatement—fair enough; again, I admit the style was polemical—says “creeping Caesarism” has been with us since 1789. He adduces a series of instances of Presidential behavior to illustrate the point. Now, for the record, I am not about to get into an argument about presidential history with Steve Knott—one is reminded of the prudent wisdom of the prison guard in Dead Man Walking: “I ain’t gonna get in no Bible-quoting contest with no nun, ’cause I’m gonna lose”—but a couple of replies are in order.
First, surely—lèse majesté!—Knott does not mean to associate Washington with Caesar. Washington was remarkably restrained in interpreting his own powers compared to, say, Bush and Obama. In any case, regardless of who first did what to whom, the question remains whether what Nisbet called “democratic royalism”—which, as I note below, is unquestionably of a form and scope fundamentally different today than it was in 1789—is healthy for a republican order. The Wilsonian presidency is different in character, not merely degree, from the Washingtonian one; Wilson himself understood this and insisted it be so. If I am wrong here, Wilson’s Congressional Government—which diagnoses the American regime as being centered around Congress, and, on his analysis, pathologically so—is too.
Second, for every instance of presidents acting alone, one can offer others of presidents acting in consultation with Congress according to the constitutional model. James K. Polk lined up troops on the Mexican border, observed that a state of war already existed, but nonetheless asked Congress for a declaration. Lincoln, so beloved of devotees of Presidential prerogative, repeatedly asked Congress to ratify what he had extra-constitutionally done. Perhaps some of the excesses attributed to President Bush were not unprecedented, as Steve notes in his book, even though I would argue the difference lies in reclassifying them as rules rather than as exceptions. In either case, the fact that other presidents engaged in similar practices does not seem to me to be a defense of them. On the whole, the examples Steve provides do not constitute either the sole historical pattern or, crucially, an argument that presidents properly act unilaterally in these ways.
Next, some of Knott’s illustrations seem more complicated than his presentation here. Yes, Washington issued a Neutrality Proclamation, but this was hardly an uncontroversial constitutional act. Moreover, when juries rejected his Administration’s attempt to try people for violating it, he was compelled to go to Congress for legislative authority to back it up. Similarly, a miffed Washington did indeed refuse ever to return to the Senate for advice and consent in person after doing so on the Indian treaty, but this was because the Senate—which then had constitutional kishkes—irritated him by refusing merely to accede quickly to his wishes. Washington reasonably withheld documents pertaining to the negotiation of the Jay Treaty; it is far more difficult to see him simply circumventing the Senate by reclassifying it as an “executive agreement,” as for example, President Bush did in concluding an agreement with the government of Iraq.
Throughout Knott’s analysis, it seems to me there is a danger—see Burke on this point—of mistaking exceptions for rules. Jefferson intended the Louisiana Purchase to be the former—a big exception, to be sure, historic in scope, but one committed over grave constitutional reservations, surely not intended to set a precedent.
Finally on this note, suppose we concede the point: Presidents have been creeping toward Caesarism from the outset. In that case, call the recent phenomenon “galloping” Caesarism. There simply is no comparison between the scale, grandeur and power of the presidency in 2013 and its counterpart in 1789. That is not to say presidents are exclusively to blame for this, although they certainly have not resisted it; it is to state a fact. Washington may have stood at the top of a slippery slope, perhaps he took a step or two down it; we are now careening at high speed toward the bottom without any sense that it might be worth applying a brake, and that seems to me to be a problem.
Steve’s description of presidential power also sweeps a great deal more than I am willing to into the vesting clause of Article II, which I take it he reads to include something like executive prerogative, at least insofar as it is attached to the Commander in Chief power. (It strikes me as simpler to read the plain English of the vesting clause as merely giving the president the authority to execute laws rather than as containing some mysterious basket of unstated powers that the framers might just as easily have enumerated, something they were clearly disposed to do. To what extent would Steve be comfortable blessing the Supreme Court’s similarly expansive interpretation of the simple word “judicial” in Article III?) It is worth a reminder that, according to what I still contend to be the much overlooked and important Federalist 69, the exercise of the Commander in Chief power is wholly dependent on Congress first authorizing a conflict—this according to Hamilton himself, no shrunken violet on presidential power he.
If, on the other hand, the claim here is for a broader Lockean prerogative, I would respond simply that the founders at Philadelphia understood themselves to be rejecting such a model. To cite but one piece of evidence, the only contexts in which The Federalist discusses executive prerogative generally—as opposed to the “prerogative” to exercise a specific power, such as the veto—are in explicit contradistinction to royal prerogative. See, for example, Federalist 48, which says the presidency need not be an object of overbearing jealousy precisely because it does not, unlike its royal counterparts, wield a wide-ranging prerogative.
To the vesting clause, Steve adds the presidential oath, the unique existence of which constitutionally he seems to take as a substantive grant of power unique to the president as against other branches, a move that—while Steve stands in distinguished company, Lincoln included, in making it—I confess I simply do not follow.
Knott also defends signing statements as a means of defense against legislative vetoes, on the definition of which he and I may disagree. Neither of the signing statements I mentioned bears even a remote resemblance to the facts in INS v. Chadha, which pertained to (one house of) Congress attempting to intervene in one individual’s case before an administrative body, not a general matter of national policy. Moreover, the president has a weapon at his disposal for resisting what he takes to be “assaults on the rule of law”: the veto pen. (Incidentally, Congress telling the President not to waterboard detainees is an “assault on the rule of law”?)
Knott doubts my description of Congress as capable of suppleness, citing Obamacare and No Child Left Behind as contrary examples. I would note that I said Congress was more institutionally capable of suppleness than the executive; much of my analysis is critical of Congress for not behaving as Congress should. But would these policies have been any better for having emanated from an executive pen? Then-First Lady Hillary Clinton’s 1,342-page health care bill—devoid of compromise and dripping with prescriptiveness—suggests otherwise.
Steve and I could debate many more points of disagreement at some length. In the interest of space, let me raise just one more. He asks, rhetorically, whether “waterboarding three high-ranking members of al Qaeda and detaining a similar number of American citizens without trial … really constitute[s] a threat to western traditions dating back to the Magna Carta[.]” Well, yes. The point is not merely that a handful of American citizens have been held without trial. I for one am uncomforted by the smallness of the number, but this is not the point. It became a threat to the principles of the Magna Carta the moment the president claimed the inherent power to detain American citizens generally without trial, which is to say not these unsavory few but anyone he deemed, without any outside review, to be a terrorist. These few were claimed not as exceptions but as rules. The resulting precedent is the danger. Is it grave? Perhaps not. Initially, such threats rarely are.
Moreover, as I recently argued here, if in fact torture was necessary to prevent the detonation of a nuclear bomb at the hands of al-Qaeda (I do not endorse this conclusion) this ought to be regarded, in Burkean terms, as a prudential departure from normal rules rather than as a precedent for future ones. It is the difference between speeding one time on the way to the emergency room and claiming that speed limits generally are null and void.
I am pleased to be able to conclude on a point of consensus: Steve is quite right that the Congress needs to heal itself. I fear, though, that we disagree on what precisely the therapeutic course might be. For me, it is reassertion; for him it appears—as in the claim that the very existence of the House Foreign Affairs and Intelligence Committees is unconstitutional—to be retrenchment.
For his part, George Thomas navigates a middle course, recommending a “synoptic vision of the Constitution” that welcomes constructive tension between branches and that recognizes the deeply rooted and affirmative bases of presidential power. I find much with which to agree in this analysis. I am not sure it is incompatible with my Wilsonian diagnosis of our contemporary condition. Wilson may successfully have identified, exploited and—on my account—exacerbated these underlying tensions. I still, then, maintain that Wilson distorted the constitutional order, the best evidence for which may be the fact that, according to his own writings, he intended to do so. But I am largely persuaded by George’s diagnosis as well.
I do overstate the case in describing the president of Federalist 70 as “reactive”; more modestly stated, my point is that the presidential powers described therein largely depend on the exercise of concomitant and even preceding legislative ones. It is a mistake to see “energy in the executive” as a Hamiltonian call for a Clinton Rossiter-style executive who stands at the driving, agenda-setting center of our national aspirations and personal feelings. (I agree entirely with George that even the most robust reading of a Hamiltonian executive is incompatible with what commentators like John Yoo ascribe to him today.) Moreover, as I discuss above, to the extent Hamilton sought British-style prerogative, especially to the extent he saw this being controlled by due dependence on the people, he lost the debate.
I would raise for both Knott and Thomas, as for myself, the question of how to locate Hamilton’s post-founding writings and positions—Hamilton as policymaker stands often in tension, does he not, with Hamilton as Publius—in our understanding of the normative foundations of the regime. (A similar methodological question must be raised of Madison.) The regime obviously must be understood, as George notes, to have developed, and there is little profit in mere nostalgia for a return to a beginning that never existed in pure form. But it has foundations nonetheless.
I concur with George’s description of a government of positive powers, including presidential ones, rather than merely negative restrictions. But almost never are these free-wheeling, untethered to specific delineations of authority. (Nor does Thomas describe them this way.) It would be extraordinary if, having enumerated the powers of the First Branch precisely in order to delineate where the national government would and would not have authority, the framers actually meant—merely by dint of the word “executive”—to vest the president with a vast range of murky and unspecified powers. (Again, I do not mean to suggest that such is Thomas’ argument.)
My own sympathies in the Pacificus-Helvidius debates lie with Madison against Hamilton, although I grant that neither of them can be said to speak definitively for “the founding.” Madison writes there that “[t]he natural province of the executive magistrate is to execute laws, as that of the legislature is to make laws. All his acts therefore, properly executive, must presuppose the existence of the laws to be executed.” In fact, contra Knott, when Madison proceeds to list the Article II powers of the president for purposes of analyzing them, he does not include the vesting clause, apparently regarding it as self-evidently pertaining merely to the execution of laws rather than as a nebulous grant of freewheeling authority. He does say, it is interesting to note, that “[t]o see the laws faithfully executed constitutes the essence of the executive authority.”
George asks, finally and intriguingly, whether Congress is constitutionally diseased in some deeper way than can be overcome by my call for reassertion, as evidenced by its apparent institutional motivation to “[defer] fraught issues” to the other branches. I would concur with such a diagnosis provided it does not relieve Congress of responsibility for its own condition. The separation of powers assumes legislators want their jobs for the purpose of exercising power—not for the jobs’ own sake—and hence will defend their prerogatives against executive encroachment. This has changed. I share George F. Will’s conclusion that legislative careerism contributes substantially to the collapse of Congressional power. Today’s legislative careerist is interested in the job—whether for its prestige or for other reasons, but not for its power.
Will’s solution—term limitation—entices. He rejects the conventional wisdom that legislative careerists are likelier to have the fortitude to stand up to the executive, ascribing to them instead the risk aversion that has led Congress into its current fix. Such would require a wholly separate Liberty Forum discussion. But term limits would certainly constitute a “deeper constitutional fix” such as Thomas speculates we may need.