Pruning the Presidency

(Jason Reed/Reuters)
It's long past time for Congress to reclaim its self-respect — and its proper place in our constitutional order.

‘Presidents are not kings,” Judge Ketanji Brown Jackson wrote in the course of ordering former White House counsel Don McGahn to comply with a congressional demand that he testify in the impeachment inquiry. Judge Jackson is perhaps too optimistic: Absolutist rhetoric notwithstanding, few if any kings of old ever aspired to the scope of real-world power exercised by American presidents. There has never been a kingdom quite like this one.

The presidency is the greatest domestic threat to liberty that this country faces today — not President Donald Trump, nor the president who preceded him, nor the one who will succeed him, but the presidency itself. It is right that so much attention has been given to the character of the current president, but more important is the character of the office he occupies. Those who see in Donald Trump a would-be strongman and autocrat owe themselves some careful meditation upon the nature of the presidency that he inherited from his predecessors. Many went before him to prepare the way.

John Adams was deservedly ridiculed for his desire to invest the American executive with a grandiose title of address so that he might stand in similar dignity to the princes of Europe. (Adams proposed “His Highness,” and the portly politician’s enemies mocked him as “His Rotundity.”) But the pomp and ceremony attached to the modern presidency, to say nothing of the practical power attached to it, would have made him blush. The aggrandizement of the presidency has been a bipartisan project in the service of ideological and political goals both progressive and conservative.

The Right has given us the notion that the president enjoys plenipotentiary power over foreign affairs and discretion over military policy that is effectively imperial, a word that is derived, appropriately enough, from the Latin word (imperator) for “commander-in-chief.” As a constitutional question, this is rooted in the mistaken belief that the three branches of government are “coequal,” which they manifestly are not. Under our constitutional system, the president is empowered only to execute the laws that Congress makes. He does not have the power to appropriate money or to make law; he does not even enjoy independent power in the military and diplomatic spheres, which is why Congress and not the president has the power to declare war, ratify a treaty, etc. And, as President Trump is being taught right at the moment, Congress has the power to impeach a president and to remove him from office, a power that it also has over all of his appointees and all federal judges. The Right has pushed the notion of presidential imperiality so far that some conservative legal thinkers, including my friend Andrew C. McCarthy, have argued that the president is effectively above the law — immune from mere statutes — when he is engaged in his constitutional duties. Under the “unitary executive” theory, the U.S. government is like that famous engraving of the composite god-king on the cover of Leviathan, with the president’s mystical immunity communicated down through the bureaucratic ranks to invest the lowliest functionary with that “coequal” juju.

Conservatives may have had some plausible legal argument for this understanding of the presidency — if there is one thing I know about politics, it is that a plausible legal argument can be offered for anything, and such motivated reasoning is of little value — but it also is the case that conservatives have generally favored a more assertive U.S. military stance and diplomatic policy, and they have concluded, based on good evidence, that they are more likely to get this from a president looking to make a name for himself than from a committee of elderly politicians concerned about what another war might to do the price of corn, how it might play back in Peoria, what it might cost, etc. A presidency lasts four or eight years (unless you are Franklin Roosevelt), but a Senate career can last decades and decades.

That used to make senators a little more circumspect, before all of them starting running for president at once. It is hard to blame them: If Joe Biden can get as close to the presidency as he has — and may yet! — then there is hope for every half-bright lawyer from sea to shining sea. And it is the case that the war fever that has infected the presidency has spread somewhat to the Senate, too. All that power is seductive: Senator Obama just about peed himself out of fear that Dick Cheney might peek at somebody’s library card; President Obama created a hit list of Americans he intended to assassinate and boasted about it in the New York Times.

The Left has aggrandized the presidency because it wishes to rule the country administratively rather than through the clunky process by which lawmakers go about making laws in a thoroughly unscientific and unprofessional fashion. That we might return to such a state of affairs is the dread that currently keeps American progressives up at night: Writing in Vox, that great dispassionate explainer, Ian Millhiser raises the alarm that Brett Kavanaugh seems to be taking a more restrictive view of the nondelegation doctrine, which is to say, that the Supreme Court might be poised to insist that lawmakers go back to writing the laws instead of sending memos over to the White House instructing the bureaucracies to write the laws and call them “regulations.” The headline: “Brett Kavanaugh’s latest opinion should terrify Democrats.”

(“Be terrified!” he explained.)

Various progressives have argued over the years that we should extend presidential terms and expand presidential powers in order to make governance more effective, which in this case is a near-synonym for unopposable. They look longingly at the parliamentary systems under which prime ministers enjoy both legislative and executive power, and toward nondemocratic bureaucracies in which empowered expert managers rule by technocratic fiat (Thomas Friedman’s “China for a Day” fantasy). This is partly because they are confident that they will get their way more often under such procedures — look at the nation’s universities and corporate human-resources departments if you doubt that progressives know how to work a bureaucracy — and partly because they maintain a delusional faith in what we are expected to call with straight faces “political science.” They adhere to rationalism, in Michael Oakeshott’s sense of that word, and hence must regard democratic compromises (along with checks and balances and formal limits on state power) as deviations from the optimum policy they believe they can deduce logically.

And so we have arrived at a practice of government in which the executive can make war independently, refuse to comply with the law and congressional investigations, make or break international agreements, set the terms of service in insurance markets, destroy banks and other businesses on a whim, and do almost anything else it might wish, with powers great and minute, from assassinating American citizens to specifying the font size on mandatory OSHA posters displayed in the breakroom at the XYZ Corp. of Poughkeepsie.

The remedy for this, we are told, is “political,” meaning that misbehaving presidents can be defeated at the polls or, if necessary, impeached and removed from office. But surely these cannot be the only controls on the president. Though norms and traditions are fine, we need some hard-and-fast rules about what presidents can and cannot do and some clarity about our legal and constitutional basis for those rules. And most of all, we need a presidency that is reduced, one that is put back in its constitutional box and limited to its constitutional role: seeing to the faithful execution of the laws.

But to take the presidency down a peg, Congress has to step up and reclaim its institutional self-respect. That is not the same thing as self-importance — the only commodity of which Congress is running a long-term surplus.

“Presidents are not kings,” Judge Jackson wrote. But they will be if you let them.

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