Constitutional Confusion and the Imperial Presidency

All reasonable people are shocked at Bush's ability to defy public opinion and the will of Congress in order to expand a war most people want to end. What concerns me most, however, is that even if Democrats do regain the Presidency in 2008, we will promptly forget that Bush's "unitary executive" is not an isolated instance. Presidents have been abrogating greater and greater powers to themselves for at least a century. Signing statements, fast track authority, executive agreements, executive orders, unilateral military actions, recess appointments - the list goes on forever. The expansion of presidential power in war and peace has reached alarming proportions, under Democrat or Republican.

The undemocratic character of this assertion of presidential power speaks for itself. But what is most annoying to me about the ever-more-bloated Chief Executive is how blatantly unconstitutional it is. These powers have been usurped through a selective misreading of Article II. Presidents have claimed these powers under the doctrine of "inherent powers" stemming from the "vested in clause," which states that all executive powers will be vested in a President. Advocates of the imperial presidency have claimed that the other powers mentioned in Article II - vetoes, appointments, pardons, commander in chief, diplomacy - should be considered as being fully under the control of the President by virtue of the vested in clause. The problem with this doctrine is that none of those powers are executive. Vetoes regard legislation and nominations to the bench concern the Judiciary. Most particularly, the appointment of ambassadors, the conduct of diplomacy, and the management of the army - whatever the popular conception may be - were never intended to belong exclusively to the President. Foreign policy and war are what the 2 chief influences on the framers, Locke and Montesquieu, called federative powers. They are intended to be shared with the Congress (which declares war and ratifies appointments and treaties), and the Courts (which adjudicates treaty enforcement). T0 claim that federative powers should be annexed to the executive is to have no idea what the executive power is - namely to enforce laws passed by Congress. That's it. Nothing more.

Even more dangerous is the heretical idea that Presidents have the authority to ignore the Constitution in times of crisis - something Bush has done repeatedly. These are what are called prerogative (or emergency) powers. If the founders intended for the President to have such authority, they most assuredly would have said so. Thankfully Hamilton and Madison were far too leery of the development of tyranny to suggest that Presidents should have the ability to ignore the Constitution at will - even in times of extreme crisis. The pernicious and heretical idea that Presidents have prerogative powers is the unfortunate legacy of Thomas Jefferson. When Napoleon offered Louisiana to the United States, Jefferson saw that the U.S. must buy the land or risk it passing to Great Britain. Unfortunately Jefferson's doctrine of strict construction barred him from buying the land, since nowhere did the Constitution mention any such power adhering to the federal government. Of course he did so anyway, but only by claiming that Presidents have prerogative powers - a precedent fraught with danger for the future.

The framers intended that the President share federative and appointment powers with the Congress, and that no one would have emergency powers. As we look at the Democratic candidates for the White House, we must keep in mind that we are electing a person who will control an executive branch that is threatening to consume the entire political system. We must insist that the Congress is and should be the most powerful branch of government. Democracies simply cannot afford to place too much power in the hands of any one person - whatever that person's party.