Power has shifted from Congress to the presidency; the modern, “heroic” presidency represents the greatest threat to the Republic.
The Cult of the Presidency: America’s Dangerous Devotion to Executive Power, by Gene Healy (Cato Institute, 2008, 262 pages)
“Taken by and large,” Edward Corwin wrote, “the history of the presidency is a history of aggrandizement, but the story is a highly discontinuous one.” After reading Gene Healy’s work, there is good reason to wonder whether presidential aggrandizement will henceforth be marked by discontinuity. What Healy does show beyond question, however, is the emergence of the modern “heroic” presidency, highly dangerous to liberty in its own right, but now even more so after 9/11 and the policies pursued by George W. Bush and his minions. On this showing, today’s presidential powers are perhaps beyond what Corwin could have anticipated and certainly beyond what students of the presidency could have foreseen in the aftermath of Watergate.
In what follows, I present a detailed account of the positions and arguments advanced by Healy, a procedure that I think calls for some explanation. To begin with, much of what Healy has to say runs counter to the conventional wisdom that is imparted to political science students in our colleges and universities. His positions, however, are best understood and appreciated only within the broader context of his concerns. I dare say, for example, that few, if any, works on the presidency find virtues in the Harding Administration. But Healy does, and he does so, moreover, with arguments that merit serious consideration. More generally, he questions the moral sensibilities of those, conservatives and liberals alike, who have equated the “great” with the “strong” presidents. Beyond this, he details the growth of presidential powers in a fashion that differs significantly from that encountered in our ordinary texts. He convincingly denies the proposition that the Framers laid the groundwork for the “strong” presidency to which we in modern times have grown accustomed.
Certainly one of Healy’s purposes is to indicate the dangers, real and potential, that surround the growth of presidential power. In this regard, he is obliged to deal with and refute new conceptions of executive power, presumably supported by intensive research into the intentions of the Framers, that have been advanced to legitimize this growth. This also requires close attention to his arguments and the facts he musters in support for a fair evaluation of his contention regarding the dire consequences that might well attend expansion of executive authority.
The Modern Presidency and the Framers’ Design
One unique aspect of Healy’s approach is evident at the outset. Many works view the modern presidency as an evolutionary development along lines that most of the Framers anticipated or even wished for. In this vein, as Healy acknowledges, scholars are correct in noting that “in the 19th century, there were hints of the Imperial Presidency to come”—e.g., “Jackson’s claim to popular leadership . . . Polk’s abuse of his authority as commander in chief, and . . . Lincoln’s dramatic expansion of presidential powers throughout . . . the Civil War.” But, he contends, “the 19th century president still appears a pale shadow of the plebiscitary officer it would become in the 20th.” He remarks, for instance, that Lincoln’s legacy had no immediately visible effect on the powers or prestige of the presidency, that after the Civil War, “America returned to limited, congressionally led government.” More generally, he holds, “despite occasional departures from principle, the Framers’ vision of the president as a limited, constitutional officer held firm for most of the century that followed.”
Healy provides abundant evidence to show that the “modern presidency” is the result of a rather abrupt break with both our tradition and what the Framers of the Constitution envisioned. Much of the evidence to this effect is found in the first chapter (“Our Chief Magistrate and His Powers”) where he deals extensively with the claims of the “unitarians”—his term for the proponents of the “unitary executive theory” advanced during the second Bush Administration. In this endeavor, he rightly concentrates on two major contentions concerning presidential powers advanced by John Yoo—the principal exponent and defender of the unitary executive theory—in order to highlight the chasm that exists between the Founders’ understanding of the role of the presidency and that of proponents of the “modern presidency.” The first of these contentions relates to the meaning and scope of the “vesting clause” of the Constitution in Article II, Sec. 1, “The executive Power shall be vested in a President of the United States of America”; the second concerns the meaning of Congress’s power “To declare War” mentioned in Article I, Sec. 8.
As to the first of these concerns, Yoo emphasizes the differences between the vesting clause, which, without qualifications or limitations, grants “the executive Power” to the president, and the qualified grant of congressional power in Article I, Sec. 1, “All legislative Power herein granted shall be vested in a Congress of the United States . . .”; that is, the congressional powers are limited to those enumerated in the Constitution, whereas the grant of “the executive Power” is plenary. Healy sees very real dangers in this mode of reasoning, namely, it allows “Professor Yoo and other radical unitarians” to view the vesting clause as conferring enormous substantive powers on the presidency, particularly during times of war when it can be used “to ignore nearly every provision of the Bill of Rights, from the Fifth Amendment’s due process clause to the Fourth Amendment’s guarantee against unreasonable searches and seizure.” Healy finds various grounds on which to reject Yoo’s reasoning and conclusions, perhaps one of the most compelling being the absence of debate and discussion at the Philadelphia Convention or the ratifying conventions, much less The Federalist Papers, on the meaning and scope of the vesting clause. No one at the Philadelphia Convention even raised questions about the differences in wording between Articles I and II, nor, he continues, did any of the participants “argue that the vesting clause constituted a general grant of power.” Contrary to Yoo’s claim that the president was to possess the prerogative powers of the English monarch, Healy quotes from James Wilson, arguably the most important delegate in crafting Article II, who expressly denied that “the prerogatives of the British monarch” constitute the “proper guide” for “defining the Executive powers.” Rather, Wilson believed, “The only powers . . . strictly Executive were those of executing the law, and appointing officers, not appertaining to and appointed by the legislature.” Moreover, Healy notes, Madison at a critical juncture of The Federalist Papers, when surveying the possible sources of oppression and tyranny, exhibited little fear of the executive because, as Madison put it, “the executive magistracy is carefully limited in the extent and duration of its powers.”
Turning to the second concern—the power to commit the nation to war—Yoo contends that the congressional power to declare war is, in fact, very narrow, being little more than the power to issue a formal proclamation intended to officially recognize a state of war between nations, principally for reasons having to do with international law. The word “declare,” for Yoo, does not carry with it “the power to ‘make,’ ‘begin,’ ‘authorize’ or ‘wage’ war.” His position, as noted above, is that the executive power includes the kingly prerogative to undertake hostilities—i.e., to make or begin a war. Indeed, Yoo expressly states that, like the British kings of yore, the president possesses “the right to start wars.”
While not evincing any apprehensions over the vesting clause, the delegates to the Philadelphia Convention, Healy responds, were most definitely concerned about war powers. In this regard, he notes that only one delegate, Pierce Butler, favored giving the president “the power of war and peace,” but later, as his remarks to the South Carolina ratifying convention reveal, he felt obliged to point out that members of the Philadelphia Convention were opposed to vesting warmaking powers with the executive since this would amount to ” ‘throwing into his hands the influence of a monarch’ ” with the ” ‘opportunity’ ” of taking the nation to war ” ‘whenever he wished to promote her destruction.’ ” Healy turns to James Wilson’s remarks in the Pennsylvania ratifying convention which, by all evidences, seems to capture the consensus of the Framers: ” ‘this system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power in declaring war is vested in the legislature at large.’ ” Even Hamilton, “a zealous advocate of a strong presidency,” in his remarks to the Convention on June 18, shied away from vesting the executive with the power to begin or make war: “his model chief executive would not have the power to initiate wars,” but ” merely ‘the direction of war when authorized or begun.'” Beyond this, Healy points out, most “war related powers”—e.g., to “grant Letters of Marque and Reprisal,” and “make Rules concerning Capture on Land and Water”—are delegated to Congress. He concedes, of course, that the president’s role as commander in chief—or, as Hamilton described it, “first General”—is important, but, he rightly insists, it cannot be construed to empower a president to initiate war.
There is no need to go further into Healy’s demolition of Yoo’s extreme and largely ahistorical claims of executive powers. What Healy shows beyond peradventure is that the Framers did not intend for a president to possess the broad powers in the realm of foreign affairs, particularly that of making war, that Yoo would accord him. Nevertheless, modern presidents, while not explicitly embracing Yoo’s views, have assumed the power to unilaterally commit the nation to war. As Healy writes, “the Korean War marked a constitutional Rubicon—the first major conflict in which a U.S. president explicitly took the position that he did not need Congressional authorization to launch a full-scale war.” While justified as a response to the United Nation’s Security Council call on member states to resist the aggression of North Korea, Healy believes that Senator Taft was correct in maintaining that Truman’s unilateral commitment was a fatal blow to Congress’s power to declare war. He points out that the commitment of American forces to Vietnam involved a minimum of congressional input and no declaration of war. After securing quick passage of the broadly worded Gulf of Tonkin Resolution in 1964 under false pretenses, President Johnson felt free to unilaterally expand the war with the commitment of hundreds of thousands of American troops. President Reagan, for his part, dispatched “some 2,000 troops into the tiny island nation of Grenada, to overthrow a communist-aligned military government” without congressional authorization, while his successor, George H. W. Bush, “overthrew the Noriega government in Panama,” again acting unilaterally. Though subsequently the first President Bush sought congressional authorization for the 1991 Gulf War, Healy correctly notes that “the president alone had made the decision to send U.S. troops into Saudi Arabia after Saddam Hussein’s invasion of Kuwait,” and that “he alone decided that Iraqi aggression would not stand.” Significantly, citing United Nations treaty commitments, the first Bush maintained that, in fact, no congressional authorization was necessary for sending a half-million Americans to war; a war that, once again, was initiated by the administration under false pretenses. If anything, according to Healy, “President Clinton was able to operate with still fewer checks on his power.” As he observes, Clinton did not feel ” ‘constitutionally mandated’ ” to seek “congressional approval for a 20,000-troop invasion of a tiny island nation that represented no threat, imminent or otherwise, to America’s security.” “Likewise,” he continues, in 1994 Clinton again acted “unilaterally” in ordering “air strikes in Bosnia and in 1995” ordering “20,000 troops there to enforce a peacekeeping agreement.” Nor did Clinton seek congressional authorization for “the air war carried out over Serbia in 1999 . . . the largest commitment of American fighting forces and material since the  Gulf War.”
The Iraq War represents the most brazen example of executive overreach that, as Healy emphasizes, paralleled the Vietnam War in at least one crucial sense: “As with the Gulf of Tonkin Resolution . . . the Iraq War resolution was broadly worded enough to allow the president to make the final decision about war all by himself.” It also provided members of Congress sufficient latitude so they might with some plausibility “deny that they had voted for the war.” While Healy does not take up the issue of whether Bush and leading members of his administration ” ‘lied’ in making the case for the war,” he does hold that they “made numerous misrepresentations about the supposed threat presented by the Iraq regime.” Having declared a “war on terror” after 9/11, President Bush assumed a number of powers unilaterally and, in fact, even began preparation for the eventual invasion of Iraq in the summer of 2002 by secretly funding “21 military projects in Kuwait, Qatar, and Oman—projects that were necessary for the prosecution of the war in Iraq and served no other defense-related purpose.” This time around, both Congress and the United Nations were tangential to the initiation of what has turned out to be and is justified as a “preventive war.”
Turning to the domestic realm, Healy takes pains to stress as well that the attributes and powers of the modern presidency are not to be found in the Framers’ understanding or even in the behavior of presidents through the nineteenth century. Using Clinton Rossiter’s paean to the modern presidency, The American Presidency(1956), as his guide, Healy documents how its functions and powers represent a marked departure from what the Framers intended and the practices of presidents over the course of the nineteenth century. For instance, while Rossiter pictures the modern president as the ” ‘Voice of the People,’ the supreme national leader charged with shaping the popular will,” Healy observes that our “early presidents often acknowledged the impropriety of popular appeals.” “Presidents from Washington to Jackson,” he goes on to note, “averaged little over three speeches a year, with those mostly limited to ceremonial address, thin on policy.” Nor, he observes, did presidents of the nineteenth century, with the exception of Andrew Johnson, fancy themselves as the “Voice of the People.” What is more, not until the twentieth century did presidents fit Rossiter’s image of the “Chief Legislator,” another attribute of the modern presidency. On the contrary, most presidents, including even some in the first half of the twentieth century, have been deferential to Congress out of an awareness that in the republican form of government, as Madison put it, “the legislative authority necessarily predominates.”
Healy’s analysis goes beyond showing that the modern presidency is a drastic departure from what the Founders envisioned. He is concerned as well to show that too much is expected of modern presidents, that there is an ” ‘expectations gap’—the vast distance between what the public expects of the president and what he can realistically deliver”—a gap that, interestingly enough, is often unacknowledged. Rossiter, for instance, pictures the modern president as, inter alia, the “Manager of Prosperity,” that is, “as pulling levers and adjusting dials to produce ‘maximum employment,’ minimum inflation, and rollicking growth.” Given the scope and complexity of the economy, meeting these expectations is, of course, well beyond the capacity of any president. Nevertheless, as Healy remarks, “presidents and presidential aspirants”—those who should know better—”embrace the role of economic helmsman, guaranteeing prosperity for all.” “Few presidents,” he remarks, “try to puncture the public’s illusions about presidential competence to handle all national problems, however diffuse or intractable.” On the contrary, “most appear to welcome the new responsibilities that burgeoning public expectations continually add to the president’s portfolio.”
The failure to come to grips with the expectations gap has serious consequences. In addition to being “Chief Legislator,” “Manager of Prosperity,” “Protector of Peace,” “World Leader,” and “Voice of the People,” the president now takes on new roles such as “Consoler in Chief,” exemplified by President Bush’s visit to Virginia Tech to “comfort the student body” after the “shooting rampage,” or as “national fitness coach,” when he lectured on “the importance of exercise . . . healthy eating” and the dangers of child obesity. We now have, to use Healy’s term, an “Omnipresident,” who, as Michael Chertoff, the DHS Secretary commented, is leader of “the war against all hazards.” “The demand for presidential salvation,” Healy believes, “hit its rhetorical nadir in the 1992 presidential debates” when “a ponytailed social worker” put the following question to President Bush, Bill Clinton, and Ross Perot: “And I ask the three of you, how can we, as symbolically the children of the future president, expect . . . the three of you to meet our needs, the needs in housing and in crime and you name it.”
An even more serious consequence from this expectation gap might well be recourse to ” ‘diversionary war’ “; that is, “presidents, held accountable for events they cannot possibly control, are tempted to change the subject by exaggerating foreign threats and even sending troops into battle.” By this Healy does not mean to imply that presidents enter office thinking of ways to engage in diversionary wars or otherwise divert the public’s attention. Yet presidents aware of dangerous situations around the world and the varied threats to American interests and well-being “can easily convince” themselves of the necessity of intervention “to protect American interests around the world.” What is more, as studies confirm, presidents find that their public support grows, at least temporarily, when they commit American forces to deal with threats to American security. In fact, a president “may benefit simply by stimulating the public’s fear of foreign threats.” George W. Bush’s approvals ratings, for example, seemed to go up with his administration’s “terror warnings.” More significantly, though his popularity declined precipitously after surging with 9/11, by declaring a “war on terror,” he was “effective in fighting off challenges to executive authority.” The “war metaphor,” that is, was sufficient not only in securing presidential prerogatives, but in expanding them without “any significant checks,” even by a Democratic Congress.
Progressives and the Modern Presidency
In most ways, as Healy shows in chapter two (“‘Progress’ and the Presidency”), the modern presidency is the outgrowth of Progressive theory and practice during the early years of the twentieth century. The Progressives were united on two major objectives with regard to constitutional institutions and process, namely, “democratization” and centralization of political power. The largely egalitarian ends sought through these “reforms” were spelled out by Herbert Croly in his Promise of American Life, a work greatly admired by Theodore Roosevelt. Croly’s thesis is generally characterized as advocating the realization of Jeffersonian ends, taken to be social and economic justice, by Hamiltonian means, a centralized political order. As Healy remarks, in contrast to the beliefs and assumptions of the Framers, Croly believed in the perfectibility of man through the operations of a genuinely democratic regime. In addition, in a later work, Progressive Democracy, he also extolled the virtues of “scientific management” in directing a unified collective will.
Healy explores another interesting dimension of Croly’s thought, namely, its “martial spirit.” Croly envisions an ” ‘army of patriots . . . fighting on behalf of a genuinely national cause.’ ” He sees the need for “a general staff” to direct this “army of patriots”; a general staff that will ” ‘have much more to do than the general staff of an army.’ ” As Healy remarks, however, Croly also assigned the regular army to a daunting task, i.e., attaining and maintaining “peace . . . in international relations” through “the righteous use of superior force.” Significantly, however, Croly and the Progressives acknowledged a problem: how could individuals be persuaded to put aside their private pursuits and narrow interests and join the Progressive army in pursuit of a genuinely national purpose? “Compulsory national service” for America’s youths might “put the martial virtues to work conquering poverty and backwardness,” but ultimately, Healy contends, the Progressives concluded that only the potentialities of war or threat of war could bring about this transformation. To bolster this point, he quotes from Croly’s Promise, ” ‘It is entirely possible that hereafter the United States will be forced into the adoption of a really national domestic policy because of the dangers and duties incurred through her relations with foreign countries.’ “
Croly may be regarded as the intellectual “father” of Progressivism, but Healy emphasizes that a trio of twentieth-century presidents—Theodore Roosevelt, Woodrow Wilson, and Franklin Roosevelt—deserve credit for achieving most of its principal goals. While Theodore Roosevelt advanced the “stewardship theory” of presidential power that asserted a “broad general power” to act for the public good, his character and actions as president were his major contributions to the emergence of the modern presidency. He fancied himself “as the sole representative of the people as a whole” and used his office as a ” ‘bully pulpit’ to go ‘over the heads of the Senate and House leaders to the people.’ ” He employed the might of the American military “to secure U.S. rights to the Panama Canal project” and in order to demonstrate American power sent “all 16 battleships” halfway around the world, leaving Congress with no alternative but to provide the funds for their return. He issued more executive orders to achieve his policy ends than all previous presidents combined. As Healy pictures him, “More than any of his predecessors, Roosevelt sensed the latent power in the office and reveled in it.”
Woodrow Wilson advanced the modern presidency in still other ways. He departed from a tradition stretching back to Jefferson by delivering the State of the Union Address in person before Congress. He not only participated in drafting key legislation, but took an active role in securing its passage. In short, from the outset of his administration, he “set out to fulfill the promise of [his] Congressional Government, and become ‘as big a man’ as he could.” And this goal was fully achieved when he reversed course and called upon Congress to declare war on Germany. With American entry into the Great War, enormous powers—including “the power to seize [war-related] production facilities”—were delegated to the president over major sectors of the economy; powers which in turn were delegated to various boards and agencies. Using the Espionage and Sedition Acts, measures designed to provide for domestic security and to prevent domestic obstruction of the war effort, Wilson’s administration, in Healy’s estimation, “would carry out the most brutal campaign against dissent in American history.” While most Progressives were displeased with Wilson’s war against dissent, Healy contends that “on the whole they welcomed the growth of the president’s power to direct American life.” Moreover, he notes, its chief advocates “favored the continuation” of centralized control of the economy in hopes of fulfilling “the promise of American life.”
Though Theodore Roosevelt (TR) and Wilson took giant steps in transforming the presidency, Healy holds that “it took FDR’s constitutional revolution to eliminate the vestiges of the old regime and usher in the modern presidency.” In this, “FDR’s presidency was the culmination of tendencies visible in TR’s and Wilson’s.” Using the “martial metaphors” in his inaugural address—e.g., “Americans were to move forward as ‘a trained and loyal army’ with ‘a unity of duty hitherto evoked only in time of armed strife’ “—FDR made clear that he would not hesitate to ask Congress for ” ‘broad Executive power to wage war against the emergency, as great as the power that would be given to me if we were in fact invaded by a foreign foe.’ ” In short order Congress did grant FDR enormous powers, perhaps the most notable being the authority to prescribe ” ‘codes of fair competition’ for trades and industries throughout the United States, setting wages and prices and regulating labor practices.” On top of this, FDR, working with J. Edgar Hoover, exhibited a concern about internal security and dissent that matched Wilson’s. To this end, he “authorized the use of warrantless wiretaps against those suspected of subversive tendencies” and went to the extreme of ordering the FBI to “open files” on those individuals who wrote him letters “especially critical of his foreign policy.” FDR’s administration also marked the end of constitutional federalism, as the national government increasingly assumed the police powers of the states through expansive interpretations of the commerce and general welfare clauses of the Constitution. Indeed, in Healy’s view, during FDR’s tenure Americans came to look increasingly “to the president for personal help in a way that would have seemed peculiar—even dishonorable—to their fathers and grandfathers.”
By the end of World War II, Healy maintains, “the presidency’s dominance had been firmly established.” “The successive crises of World War I, the Great Depression, and World War II,” he writes, “had given rise to a new constitutional regime.” Healy finds Theodore Lowi’s description of the new constitutional order apt: “the system of government had become an inverted pyramid, with everything come to rest on a presidential pinpoint.” Put otherwise, the most prominent landmark of the new regime was the “heroic presidency” or “omnipresidency.” Moreover, this new regime was hailed by serious scholars—James MacGregor Burns, Arthur M. Schlesinger, Richard E. Neustadt—all of whom contributed mightily to the aura of the heroic president. A survey of college political science texts in the period from 1955–70 conducted by Thomas Cronin, Healy reports, “found a near-uniform portrayal of ‘presidential omnipotence’ and ‘moralistic-benevolence,’ in which ‘by symbolizing the past and future greatness of America and radiating inspirational confidence, a president can pull the nation together while directing us toward the fulfillment of the American dream.’ ” By 1960, Herman Finer even went so far as to declare that “the presidency was ‘the incarnation of the American people in a sacrament resembling that in which the wafer and the wine are seen to be the body and blood of Christ,’ the office rightly belonging ‘to the offspring of a titan and Minerva husbanded by Mars.’ ” In sum, the Progressive vision had become a reality.
The Fall and Recovery
Healy, of course, is aware of the fact that the modern presidency was dealt a serious blow with Watergate and Nixon’s resignation. In chapter four (“The Hero Takes a Fall”), he surveys the circumstances surrounding this fall. To begin with, while Nixon’s views on presidential powers went beyond even his Progressive predecessors, he came to office at a time when public trust in the presidency was ebbing, due largely to the prolonged war in Vietnam and the efforts of the Johnson Administration to infiltrate and counter the antiwar movements. Moreover, unlike Kennedy, Nixon had to contend with an adversarial press. Thus, the Watergate episode left Nixon particularly vulnerable. Congress, for instance, was able to override Nixon’s veto of the War Powers Resolution, designed to curb the president’s power to unilaterally commit American forces to hostile operations. It was also able to pass, again over Nixon’s veto, the Impoundment Control Act, thereby limiting the president’s power to withhold appropriated funds for approved projects without congressional approval. Even before Watergate, the Supreme Court “rebuffed Nixon’s attempt to stop publication of the Pentagon Papers” and, in so doing, made clear the president’s constitutional powers to suppress publications under the guise of “national security” would have to meet rigid tests to overcome the First Amendment prohibition on “prior restraint.” What brought about the temporary eclipse of the “Heroic Presidency,” as Healy sees it, was the Court’s decision in U.S. v. Nixon that rejected Nixon’s claims of absolute executive privilege and obliged him to turn over incriminating audiotapes to the special Watergate prosecutor.
After Nixon’s resignation, as Healy notes, there were other revelations from the hearing conducted by Senator Frank Church concerning a “surveillance and espionage program [CHAOS] aimed at antiwar groups” and other CIA and FBI abuses such as “the wiretapping of Martin Luther King, to the Kennedy administration’s attempts to get the Mafia to assassinate Castro.” At this point, public confidence in the presidency and faith in the federal government reached a low point, with only 23 percent trusting the national government “to do what was right ‘most of the time.’ ” By 1977, in stark contrast to earlier polls in which a healthy majority of the public expressed greater confidence in the president than Congress to discern public needs, “only 26 percent” held to this view, with over twice that number placing their faith in Congress. Added to this, during and after Watergate, and on the heels of the Church investigation, the image of the presidency suffered in the popular culture, often being the object of ridicule.
As remarked, the eclipse of the heroic presidency was only temporary. While enthusiasm for the modern presidency ebbed on the political Left after Nixon’s presidency, calls for a strong presidency from the political Right and the neoconservatives during the 1970s more than compensated for this. And, as also noted above, it was not long after Watergate that presidents began to reassert themselves through the unilateral commitment of American forces around the world. But, as Healy outlines in chapter five (“Superman Returns”) the complete restoration of the heroic presidency occurred with 9/11 and its aftermath. “In the aftershock of 9/11,” he writes, “Americans wanted a hero, and the plainspoken man with the bullhorn seemed to fit the part.” During the “aftershock” the president was no longer “the most frequent butt of late-night talk-show hosts.” On the contrary, he was even idolized as “God’s agent of wrath.” In the wake of 9/11 the public’s faith in the presidency was restored, as evidenced by President Bush’s 90 percent approval rating. Moreover, in his speeches declaring the nation’s resolve and responsibilities in light of the 9/11 attacks, Bush became the “voice of the people.” The president, in sum, once again became “Professor Rossiter’s Protector of the Peace, Voice of the People, and World Leader.” The neoconservatives, echoing the themes of Croly and TR, envisioned the attacks as providing an avenue for “A Return to National Greatness.”
Highly instrumental in the reemergence of the heroic presidency was the way in which George W. Bush contextualized the 9/11 attacks and the situation in which the United States found itself as a result. As Healy points out, that Bush would use the “war metaphor” to characterize the attacks was to be expected since it “has long been the president’s most powerful rhetorical weapon for motivating Americans and securing new powers.” In this case, however, there were novel circumstances. To begin with, aside from Afghanistan, where the government provided sanctuary for those responsible for the attacks, the “enemy” in the “war against terrorism” “was not a nation-state” which meant that success in the conduct of the war would not rely upon “tanks and planes,” but rather “cooperation with foreign intelligence services and law enforcement officials.” While the work of these institutions in combating terrorism could hardly be described as war, Bush was able to overcome this difficulty by declaring Iran, Iraq, and North Korea “an axis of evil,” thereby justifying the need for the traditional tools of warfare. Another difficulty, closely related to the first, is that this “war” had no defined geographical boundaries or “foreseeable endpoint.” Both of these characteristics rendered this war significantly different from others: the nature of this war, coupled with the lack of any geographical boundaries, meant that the Bush Administration could cogently argue that the “laws of war [apply] to the home front.” Indeed, shortly after 9/11, “President Bush issued a ‘Military Order’ on the ‘Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism’ ” under which the president was empowered to unilaterally “detain any noncitizen he suspected of terrorist involvement . . . even if that person was a legal resident of the United States.” The detainee could not have access to “American courts” but instead would be “tried before a military court whose rules would be determined at the discretion of the president and could be unilaterally altered at any time.”
Congress for its part was silent on this issue, exhibiting “little interest in asserting its constitutional authority to formulate the rules for 21st-century warfare.” Beyond this, however, while the administration operated on the basis of Yoo’s reasoning that accorded the president virtually unlimited powers in time of war, Congress without serious debate or deliberation passed an Authorization for the Use of Military Force [AUMF] resolution which virtually delegated its war making power to the president by “authorizing him to make war on ‘those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.’ ” Healy, rightfully so, is highly critical of Congress’s abdication of its constitutional responsibilities: “In the rush to war [with Iraq], most members couldn’t even be bothered to do the most basic due diligence . . . to examine the available intelligence and decide for themselves whether they thought a serious threat existed.” This abdication is even more shameful, he believes, in light of the transparently absurd claims by the president that the United States was threatened by “unmanned [Iraqi] aerial vehicles that had less than a 300 mile range” and the existence of a “National Intelligence Estimate” that showed the administration’s case for war to be far less solid than the administration contended. But only six senators, Healy notes, took the time to read this NIE report.
Now, it is true, as mentioned above, that President Bush’s personal popularity took a nosedive after reaching a high point in May 2003 with his speech aboard the USS Abraham Lincoln with the “Mission Accomplished” banner as a backdrop. But, as Healy emphasizes in chapters six (“War President”) and seven (“Omnipotence and Impotence”), the powers of the presidency did not suffer any corresponding decline. Following Yoo’s understanding of executive powers, the administration adopted the position, as Healy puts it, that “Congress shall make no law abridging the freedom of the president to do whatever he thinks effective in fighting the war on terror.” For instance, despite the Non-Detention Act of 1971—approved by Nixon, it repealed a provision of the McCarran Internal Security Act, giving “the president authority, in ‘an internal security emergency,’ to lock up subversives”—Jose Padilla, an American citizen, was arrested in May 2002 and held “on a material witness warrant,” and, “two days before a hearing in federal court on the validity of that warrant, the president declared” him “an ‘enemy combatant’ ” and issued an order that he be confined to a naval facility in South Carolina, “hundreds of miles away from his lawyer.” There he was held without charges for over three years. While the administration saw fit to transfer Padilla to a federal prison and allow for his trial in federal court only when it appeared that the Supreme Court might well order it to do so, its position in the lower courts was that the Non-Detention Act “was null and void,” a position that, Healy remarks, fits in well with Nixon’s position, “When the president does it that means it is not illegal.”
Another example of brazen disregard for the law relates to the “torture memos” of the Office of Legal Counsel (OLC) which held, in effect, that “the president cannot be restrained by validly enacted laws.” That is, while the United States had “signed the United Nations Convention against Torture” in 1988, with ratification by the Senate coming in 1994, followed by “implementing” legislation “making acts of torture committed under color of law outside the United States a federal crime,” the “key [OLC] torture memo . . . drafted by Yoo” maintained that “such laws cannot bind the commander in chief: ‘Congress can no more interfere with the president’s conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield.’ “
Disregard of the law arose once again with the Bush Administration’s domestic surveillance program. As the New York Times revealed in December 2005, the president “informed the Pentagon’s key intelligence-gathering agency that it could ignore certain requirements of the Foreign Intelligence Surveillance Act [FISA],” an act passed in 1978 “to prevent a recurrence of the abuses documented by the Church Committee.” The executive order, in effect, relieved the National Security Agency of the need to secure a warrant through the procedures set forth in FISA in order “to listen in on or read Americans’ telephone calls, e-mails, and other communications, so long as one party to the communication was located outside the United States” and was also somehow linked to al-Qaeda. Again the Bush Administration contended that its actions were constitutional, since in the AUMF resolution “Congress authorized the president to use ‘all necessary and appropriate force’ to fight Al Qaeda.” Beyond this, the Department of Justice argued that ” ‘as Commander in Chief and sole organ for the Nation in foreign affairs,’ ” the president possessed an ” ‘inherent constitutional authority . . . to conduct warrantless surveillance of enemy forces.’ “
To be sure, in the case of FISA the administration eventually waffled on its constitutional argument. Later, however, Congress would oblige the administration by passing the Protect America Act, which removed “the FISA court from individualized review of wiretaps” and granted the executive discretionary latitude, thereby leaving “very little of FISA standing.” Likewise, the Bush Administration backed down on its detention of American citizens, apparently fearing an adverse Supreme Court decision that would permanently settle the issue. The only issue on which the administration was unambiguously rebuffed concerned the military tribunals established by Bush through executive order shortly after the 9/11 attack. The Court found the procedures of the tribunals to be in violation of the Uniform Code of Military Justice passed in 1950 by Congress. In so doing the decision seemed to repudiate the “unitary executive theory” advanced by Yoo under which the administration asserted extraordinary wartime powers. But here, again, Congress passed the Military Commissions Act in October 2006 that restored the basic provisions of the administration’s program, an important one being that “terrorist suspects [even if they be legal residents] could not challenge their detention in American courts.”
There are still other areas where Healy sees abuses of presidential power. One of the most significant is the use of the “state secrets privilege,” which “lets the government shield information from civil or criminal discovery when ” ‘compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged.’ ” Judges, he writes, normally do “not even examine the documents” to make a determination of whether they actually contain “privileged information,” but rather take “the government at its word.” While the doctrine has been invoked with increasing frequency in recent decades, the Bush Administration has invoked it “twice as frequently” as the administrations from Carter through Clinton. What is more, Healy points out, “Before 9/11, presidents had most often claimed state secrets to limit discovery, rather than attempting to quash entire cases.” But the Bush Administration, faced with “cases challenging” its “warrantless surveillance” program and the practice of “extraordinary rendition” (i.e., “transferring terrorist suspects to countries where they may be tortured”), has successfully invoked the privilege “to seek” their “blanket dismissal.” Healy’s concern, fed by the past abuse of the privilege to shield governmental negligence, is that “to expand the military and state secrets privilege,” as the Bush Administration did, would involve an illegitimate cover-up of “matters far graver than mere negligence.” At various points in his analysis, Healy expresses concern about the status of the Posse Comitatus Act of 1878 (PCA) which limits the deployment of “federal troops to ‘execute the law’ in circumstances not ‘expressly authorized by the Constitution or Act of Congress.’ ” The reasons for the PCA, as he relates, stemmed from a history of “appalling results” in deploying troops to handle domestic disturbances. The PCA is based largely on the recognition that, in light of their primary mission, military personnel—quite unlike the police—are not trained to operate under conditions where constitutional rights are to be observed. Yet, shortly after 9/11, the status of the PCA was brought into question by a memo, again authored by John Yoo, which asserted “an inherent executive authority . . . to ‘use military force for the military purpose of preventing and deterring terrorism within the United States.’ ” And, while the Bush administration did not violate the provisions of the PCA, Healy believes that there is a “serious danger that the War on Terror will blur the lines between civil and military functions.” In general, he is pessimistic that these lines will be observed since a “reflexive response to any crisis” domestic or foreign, both on the part of the American people and presidents, is “we need more military power“
Finally, the circumstances surrounding Hurricane Katrina and its aftermath serve to illustrate another reason for Healy’s concern over the PCA and why the powers of the modern presidency keep expanding. While quick to acknowledge that the administration is to be faulted for its response, largely due to FEMA’s ineptitude, he points out that in this case “failure had many authors”; that, more specifically, “effective disaster response depends on decisions made by officials at all levels of government: municipal, state, and federal—most of whom the president does not command.” Yet, as the polls show, the public did hold the Bush Administration accountable for the bungled relief effort; that is, the administration was, to a large extent, being blamed “for failures beyond its control.” “Small wonder, then,” Healy comments, “that President Bush promptly sought the authority to head off future political disasters [i.e., “responsibility without authority”] by overriding the decisions of state and local officials and using the military at home.” And this authority was forthcoming in a provision of the Defense Authorization Act passed in October 2006 covering the “Use of the Armed Forces in Major Public Emergencies.”
This conferral of power came at a time when President Bush had lost the public trust and his approval rating had taken a nosedive. Why, then, did Congress act in the manner it did, bestowing even more power on the executive branch? In Healy’s view it did so for reasons that indicate why the growth of presidential power, even in areas not related to foreign affairs, seems inevitable, to wit, an ingrained public conviction that all large public problems are the president’s responsibility. To meet these expectations the public (as well as Congress) seems willing to give the executive the tools he needs, even if this means mangling the principle of federalism and allowing military intrusion into previously forbidden areas.
To Make Matters Worse
In the penultimate chapter eight (“Why the Worst Get on Top . . . and Get Worse”), Healy borrows from Hayek’s insight to show “the close connection between the system,” the way presidents are selected, and “the type of leader” it produces. In this endeavor, he brings into question the proposition that the system is sound and that the “problems of the presidency stem from bad leadership.” He points to several factors that lead him to conclude that there is “good reason to doubt that the system we have today selects for the virtues that would be necessary to wield the enormous powers of the modern presidency—if anyone is morally fit to be trusted with so much power.” For starters, he asks, who would want the job given the “enormous costs,” both “physical and emotional”? The presidential campaigns, securing the nomination and then running for the office, conducted “under the camera’s merciless eye,” are “a blur of glad-handing pancake breakfasts, hoarse-voiced platitudes, and long hours on the phone begging for cash.” While the Framers believed they had devised a system of presidential selection that would secure individuals ” ‘preeminent for ability and virtue,’ ” the modern “grueling plebiscitary marathon,” largely the result of Progressive reforms, has shown a marked tendency to reward precisely what the Framers feared, i.e., those with ” ‘talents for low intrigue and the little arts of popularity.’ ” As Healy puts it, the likelihood of the present system producing the likes of a George Washington is virtually nil: “Probity and restraint don’t seem to be the sort of virtues that regularly come coupled with fund raising ability, popular appeal, and the sort of ambition that makes years of living out of a suitcase and constantly mouthing inanities tolerable.” To this must be added the fact that candidates must lie or, to put it less bluntly, “credible candidates must make promises that no honest, intelligent, credible person could feel entirely comfortable making.”
A goodly portion of Healy’s analysis is an inquiry into what happens to those who are elected. Here he finds that “the life of the president has become increasingly regal, in ways that can’t help but affect the judgment of the office holder.” Whereas “well into the 20th century” the president’s staff was “remarkably spartan” with “less clerical and administrative help than the CEO of a midsize company today,” the staff of the modern presidency has swollen in response to the demands that have been placed upon it. The result is that modern presidents, to an unprecedented degree in our history, are paradoxically isolated in significant ways. Healy quotes from George Reedy’s book, The Twilight of the Presidency, to emphasize the dangers associated with this isolation: ” ‘The president . . . is surrounded by large, adoring groups that give him the illusion of human contact when all they really do is act as an echo chamber for his thoughts.’ ” Or, again, quoting from Reedy, ” ‘From the president’s standpoint, the greatest staff problem is that of maintaining his contact with the reality that lies outside the White House walls.’ ” While this in itself is troublesome, Healy points out that “an ever-larger chunk of the White House staff is tasked with convincing the press and the public of the president’s super-hero status.”
The trappings of the modern presidency contribute to both his isolation and regal status. The modern Secret Service protection, of course, adds to his isolation. During George W. Bush’s presidency, peaceful protesters were even herded into “free speech zones” remote enough that the president could not hear or even see them—a practice Healy believes is clearly unconstitutional. While the practices of the Secret Service have on numerous occasions irritated Americans, in Healy’s view they cannot but help to “give the president an exaggerated sense of his own significance.” Additionally, there are regal “perks” that also contribute to an inflated feeling of significance such as the White House itself, which Clinton called the ” ‘crown jewel of the federal prison system,’ ” with its “132 rooms, 25 bathrooms, . . . swimming pool . . . bowling alley, and . . . movie theater.” Then there is Air Force One, “a 231-foot Boeing 747 which has 4,000 square feet of space and is designed to withstand the electromagnetic pulse from a nuclear blast” and costs “over $50,000 per hour of flight.” On top of this, whenever the president leaves the White House to attend a private or public function “his attendants stand ready to clear the path” for him, usually without regard to public inconvenience.
For these reasons, among others, Healy believes presidents are prone to the Acquired Situational Narcissism (ASN) syndrome. ASN offers an explanation for the “various pathologies” displayed by celebrities, e.g., “rock stars, movie stars, famous athletes.” It postulates that the symptoms of “classical narcissism” that develop in childhood—”self-absorption, delusions of grandeur . . . lack of empathy”—can arise later in life “when a person rises to fame, wealth, and power—and spends an extended period of time in an atmosphere of artificial deference.” In Healy’s opinion, if this is so, then presidents are more vulnerable to ASN than celebrities because “the environment in which the president exists is . . . more unnatural” than that of celebrities: “Rock stars and movie idols can order their functions around and buy their own airplanes, but they can’t send the Seventh Fleet through the Taiwan Strait or bomb Iran.”
Healy points to the dangers of groupthink in the White House: it prevents “genuine deliberation” or an accurate “assessment of available options and their desirability.” At the same time, he stresses the enormous difficulties in overcoming it. Increasingly the president’s “closest advisers are handpicked” and “entirely beholden to him” since they “lack any sort of independent power base.” This state of affairs, he believes, “enhances the danger that” the president’s confidants will be little more than Reedy’s ” ‘echo chamber’ . . . even in matters of life and death.” Indeed, the experience and the testimony of past presidents shows that any “signal” by a president, however slight, indicating “the direction in which he is leaning” on a matter carries with it “the danger . . . that those surrounding him will believe he’s already made up his mind, and that the right move is to fall in line.” And while some presidents took conscious steps to avoid groupthink, Bush was not one of them. Nevertheless, Healy observes that “George W. Bush is hardly the first president to become intoxicated by power and detached from reality”; that his “dysfunctional behavior . . . pales to that of presidents [e.g., Johnson and Nixon] past.” He concludes that the problem is the office, not the man: presidents live “in a social environment that would corrupt a saint.”
If the problem is the office, then what can be done by way of ameliorating these dangers? This is the concern of the final chapter (“Toward Normalcy”). At the outset Healy considers reforms, i.e., proposals “for reining in rule by executive order, or cutting back on delegation of lawmaking authority and restraining executive war making” powers. Representative Ron Paul, for instance, has introduced the Separation of Powers Restoration Act that would require a president to specify “the constitutional or statutory provisions they’re relying on to justify any given executive order.” With respect to the executive abuse of delegated powers, Stephen Breyer—now a Supreme Court justice—proposed placing provision for a “legislative veto” in the body of legislation delegating authority that would require congressional approval of an agency’s execution of the laws. Republican freshmen, shortly after their party’s takeover of the House in 1994, offered a proposal that went beyond Breyer’s, namely, requiring congressional approval of “all executive branch regulations.” Likewise, various proposals have been set forth to curb the president’s power to unilaterally commit the nation to war. John Hart Ely has urged an amendment to the War Powers Resolution that would shorten the sixty-day “free pass” to just twenty, with a provision that if there be any doubts about presidential compliance, legislators can take the issue to the courts. Funding would automatically be cut off if, in the absence of congressional authorization, the courts were to “determine that hostilities were imminent.” In 2007 Representative Walter Jones introduced the Constitutional War Powers Resolution that would limit the president’s use of unilateral force to cases “involving an attack on the United States or U.S. forces, or to protect and evacuate U.S. citizens.” Like Ely’s proposal it would “give congressmen standing ‘to start the clock,’ and would cut off funding should Congress refuse to authorize military action.” Leslie H. Gelb and Anne-Marie Slaughter set forth what is a “simpler solution”; namely, require ” ‘a congressional declaration of war in advance of any commitment of troops that promises sustained combat.’ “
Healy remarks that “each of these reforms presupposes a Congress eager to be held accountable for its decisions, a judiciary with a stomach for inter-branch struggles, and a voting public that rewards political actors who fight to put the presidency in its place,” and he details why none of these presumptions hold. The judiciary, for instance, has been exceedingly adept over the past thirty years in litigation “under the War Powers Resolution . . . to avoid picking sides in battles between Congress and the president” and would probably find ways to dodge its responsibilities under the Ely/Jones proposals. But Congress draws his harshest judgment. In keeping with a theme that permeates much of the book, he finds Congress a feckless institution. “Even if,” he writes, “any of these measures became law, Congress would remain free to avoid the pinch: ducking responsibility for new regulations and presidential wars.” “Statutory schemes designed to pre-commit legislators to particular procedures,” he continues, “have a terrible track record,” in large part because Congress has shown a pronounced proclivity “to undo past agreements in the pursuit of short-term political advantage.” What is more, quite aside from this, most of the proposals would be subject to a presidential veto that would have little, if any, prospect of being overridden.
The problem of confining the modern president to his constitutional role, in Healy’s estimation, goes well beyond these reforms. He regards them as “superfluous”: “An America in which they were politically possible would have almost no need of them.” Instead, what is needed is a basic transformation in the people’s attitudes toward and perception of the presidency or, in his words, “a country that thoroughly rejected the idea that it’s the president’s job to deliver us from evil and to invest our lives with meaning.” But, as he recognizes, enormous obstacles stand in the way of any such transformation. First, there is the popular culture, the movies (e.g., Independence Day, Air Force One, Gabriel over the White House) and television shows (e.g., West Wing, Commander-in-Chief), which, for the most part, embrace the image of the heroic president—altruistic, hard working, with apparently unlimited powers to do good and eliminate evil. Second, there are the scholars and academics who, over the years, have lionized the “strong” or “imperial” presidents, i.e., those who have expanded presidential authority. Consequently, “warrior presidents” do well in academic rankings. A breakdown of a survey by the Wall Street Journal and the Federalist Society conducted in 2005 revealed that even among conservative academics five of the top ten presidents were those who had presided over a war, FDR ranking as the “fifth best president in American history.” And third, an “orientation toward the presidency,” best described as ” ‘Caesaropapism’ ” (Healy borrows the terms from Henry Fairlie), has taken hold in the public mind, that is, a view of the presidency as embodying a “union of secular and religious authority.” In this connection, other obstacles naturally arise: a president viewed in this manner is and has been called upon by “the pundit class” “to think big and act boldly” to achieve wonders, whether it be the “National Greatness Conservatism” of the neoconservatives, “National Greatness Liberalism,” or realization of the promise of American life. Thus, the affinity between “opinion leaders” and power grows to the point where—and here Healy borrows William Hazlitt’s description—”the pundit class” become ” ‘intellectual pimps of power.’ “
Healy, though, still finds it a bit strange that the “American intelligentsia” would hold the “decidedly ordinary figures” who have occupied the White House in “such high regard.” “It must be very strange,” he writes, “to prostrate oneself before men like Bill Clinton, an Elmer Gantry risen far above his proper station, or George W. Bush, who as he approached 50, was notable mainly because he had a famous last name and had managed to quit drinking.” He does find an explanation in Hazlitt’s observation, ” ‘The less of real superiority or excellence there is in the person we fix upon as our proxy in this dramatic exhibition, the more easily can we change places with him, and fancy ourselves as good as he.’ “
For all of this, however, Healy does find “Stirrings of Heresy.” Increasingly Americans are beginning to question presidential powers. Whereas FDR’s use of “secret military trials” during WWII met with public approval, George W. Bush’s unilateral directive to this end was hardly given a free pass by important elements of the media. What accounts for this change? Healy agrees with the analysis of Jack Goldsmith and Cass Sunstein that “the successive shocks of Vietnam, Watergate, and the Church Committee revelations spurred ‘a massively strengthened commitment to individual rights,’ ” as well as ” ‘a genuine revolution not only in law but also in cultural attitudes'” which has rendered the public ” ‘far less trusting of government.’ ” Healy sees this “revolution,” marked by a growing public distrust in government, particularly the presidency, as having “enormous implications for the political fortunes of the Heroic Presidency.” The people, for instance, have shown a propensity to favor a divided government that serves to check the executive. But, what is perhaps more significant, the surveys of Ronald Inglehart at the University of Michigan have shown that their “tendency to look to the state—and the head of state—as the solution to all our problems ‘has reached its limits.’ “
Technological and cultural changes, Healy contends, operate to diminish the image of the president. When Nixon delivered “a prime-time address on Vietnam, more than half the American viewing public watched,” while President Bush “could do no better than 21 percent” in explaining his Iraq policy. Americans now enjoy a wide variety of “options beside turning off the TV when a presidential address” has “preempted network programming.” Moreover, thanks to Jon Stewart and Steven Colbert, younger Americans who do “pay attention to the president . . . seem to consider him a source of amusement.” By way of responding to those who look askance at such irreverence, Healy responds: “The age of the Heroic Presidency left a legacy of ruinous war, unrestrained executive surveillance, and repeated abuses of civil liberties. Perhaps a little disrespect is in order, and perhaps there are worse things, after all, than making the president a punching bag and punch line.”
In the final pages, Healy emphasizes themes that are at the heart of his argument. Our political culture is unhealthy, as evidenced by the fact that “Both the Left and Right hold up” Truman and TR, both “authoritarian personalities,” “as models for presidential greatness.” The pundits, academics, and public intellectuals bear a large portion of the blame for this because they have glorified presidents who have pursued idealistic visions. “A healthier political culture,” he contends, “would cease fighting over the legacies of Truman and TR, and recognize how much there is to admire in the presidents who resist grand crusades, who content themselves with securing peace and leaving well enough alone—in presidents who preside.” In his view, we should “pause to acknowledge the merit of men like Cleveland, Taft, Harding, and Coolidge,” presidents who were “more popular during their tenure” than the ” ‘heroic’ HST.” Suppressing the seemingly “reflexive demand” that the president “do something about any trick of fate notable enough to lead the nightly news” is, he holds, “essential to restoring the limited presidency our Framers envisioned.”
At another level, Healy deals with a major problem, namely, in light of 9/11, the public now holds presidents responsible for “providing protection” that cannot be provided while simultaneously and successfully seeking “power that no free society ought to let them have.” This state of affairs, obviously, contributes mightily to the perpetuation of the heroic presidency. Healy grants that we may well be attacked again, particularly given our vulnerability. Yet, he sees that “our exposure to terrorism” can be reduced considerably by making “fewer enemies abroad.” There must, he insists, be a recognition of “the difficulties of preserving a republic while operating a sprawling global empire.” And he clearly implies that empire and republic may be incompatible. “If Americans want to restore the constitutional separation of powers,” he counsels, “then America needs to relinquish the idea of herself as a redeemer nation and what comes with that role: a redeemer president whose influence expands relentlessly into every sphere, foreign and domestic.” He concludes by setting forth his image of “a truly heroic president,” that is, “one who appreciates the virtues of restraint—who is bold enough to act when action is necessary, yet wise enough, humble enough to refuse powers he out not to have.”
Some, perhaps most, political scientists upon reading Healy’s work might conclude that his real concern is about American politics, warts and all, as it has been practiced since the beginning of the Republic. Yes, they would probably concede, the political landscape has changed, but under the surface the dynamics, motives, and goals of the actors are basically the same. Moreover, they would probably point out, to the extent that Healy believes “the sky is falling,” he is but the latest in a long line of individuals, stretching back many decades, who have felt the same. Yet the sky didn’t fall.
It may seem far fetched to believe that many political scientists would react in this way, particularly in light of the massive evidence Healy has marshaled to the contrary. But such a reaction is not far fetched because there is, as Healy points out, the phenomenon of “situational constitutionalism” that allows individuals to simultaneously acknowledge much of what Healy sets forth while still supporting the Imperial Presidency. Simply put, partisanship (or in some cases ideology) comes to play a near-decisive role in how one judges the extent and use of presidential powers, as evidenced by the fact that Democrats and Republicans flip-flop on the issues of presidential powers depending on which party holds the office. This has been well-documented and is scarcely in need of further elaboration here. However, given situational constitutionalism and its role in the controversies surrounding presidential power, a critical question does arise: has Healy made a case that renders situational constitutionalism moot, or, more exactly, does he point to dangers associated with the modern presidency that should concern both Republicans and Democrats, regardless of who occupies the office? Put still another way, in light of what Healy has shown should all Americans be concerned, regardless of their political persuasion?
Now, in my estimation, chief among the enduring points of Healy’s book—and they are many—is his convincing case that our constitutional derangement today is of such a magnitude that to continue to engage in situational constitutionalism might well result in disaster for the Republic. In an important sense, his book is an effort to rescue us from swamps of situational constitutionalism, to make us view the issues surrounding presidential power from a principled perspective. And, while it might well be that the excesses of the Bush Administration prompted this book, the fact is, as Healy painstakingly documents, “the imperial presidency is the classic bipartisan project: the Left and Right have contributed equally to its growth.” This view, as the testimonials to his book make clear, is shared by individuals across the political spectrum. Put otherwise, when the unitary theory of executive power gains credibility to the degree where it is used to justify virtually unlimited executive powers, when Congress delegates to the executive its constitutional prerogatives, including even its legislative authority, or when, inter alia, a president can use the office to mislead the nation into a “preventive war” while Congress looks the other way, only the most abject partisans can fail to see a profound derangement in the constitutional order.
So much attests to the gravity of Healy’s work. Other facets of his work lead to the exploration of problems he identifies. Theodore Lowi’s contention that we now have a presidentially dominant “Second Republic” is in keeping with Healy’s view that the modern, imperial president is the result of the triumph of Progressivism. What the Progressive agenda required—and this became painfully clear in the early phases of the New Deal—was a centralized government both “vertically” and “horizontally.” The vertical centralization, in effect, meant the death of federalism, or the division of powers between the state and national governments as traditionally conceived, while the horizontal centralization signified the demise of the traditional understanding of the separation of powers. Power was now congregated in Washington and the president replaced Congress as the predominant institution in the constitutional order.
Given what Progressivism sought to achieve, whether we take Croly’s vision or that of FDR, this centralization was inevitable; it could not have been otherwise. Put another way, the Founders’ Constitution is not a suitable agency for the realization of the “national promise” or “national greatness”; a simpler, centralized decision making is necessary, preferably one that embraces the model of plebiscitary democracy according decision-makers both wide discretion and legitimacy. The upshot of this is that we now live under an essentially different constitutional order than the one bequeathed us by the Framers. And herein, in my judgment, reside many of the troubles with which Healy deals. Whereas, as I believe Healy has shown, a fairly comprehensive constitutional morality surrounded the Founders’ Constitution regarding the role of Congress and the president, the limits of governmental authority, and, inter alia, the scope, meaning, and purpose of the powers delegated to the national government, no such morality surrounds the new Progressive Constitution, if it may properly be called a Constitution. Progressivism is ends-oriented; it embraces centralization, the expansive interpretations of delegated powers in order to achieve grand ends or goals. As such, under its Constitution, we should not be surprised that the “rule of law” is often violated or that, more generally, the authority and powers of the branches of government become so ill-defined and jumbled that presidents—and the courts, as well—now lay claim to powers that the Framers’ Constitution delegates to Congress. In this connection, the unitary executive theory would seem to be a logical outgrowth of the Progressive’s push for centralization, but whether this is so or not, it is compatible with the Progressive’s consolidationist mode of thought. Moreover, it is the vacuum—the absence of an accepted constitutional morality—resulting from the breakdown of the older constitutional morality that inhered in the 1787 Constitution which provides the opening for such theories of presidential power. At the same time, as one who reads Healy’s presentation cannot help but see, the concerns of the Founders to prevent oppressive government and secure the rule of law—and this largely through the constitutional separation of powers—do not seem to be shared to anywhere near the same degree by proponents of the modern presidency. In part this may be attributed to the fact that, unlike the Framers, they have not been required to offer a coherent version of the new order that might reveal the need for limitations, all the more so since many protections provided in the Philadelphia Constitution are no longer operative. Another contributing factor might well be their teleological orientation wherein processes and procedures are distinctly secondary concerns.
War, as Healy’s presentation makes abundantly clear, is the principal means by which executive powers have swelled over the decades. As such, as he emphasizes, war provides the executive the excuse for circumventing or even abrogating traditional liberties and rights, while expanding executive powers. The war on terror is, of course, unique since there are no standards or measures for determining victory or when its objectives are met. This war on terror, however, coupled with the ill-fated decision to invade Iraq, brings to the fore in a forceful way the problems surrounding presidential warmaking authority. Perhaps the most important of these is how to limit the president’s authority to unilaterally commit American forces to sustained warfare without a congressional declaration of war. The War Powers Resolution hasn’t worked and, as Healy remarks, it is doubtful that any paper barricade will serve to control a president bent on making war. Nor can one count on Congress to take the measures necessary to force compliance. The control over appropriations is, and has proved to be, a clumsy mechanism for this purpose. And, in fact, it might well be that when limitations are needed, most of Congress would actually approve of the president’s unilateral action and simply remove whatever restrictions it had imposed.
Viewed from a more strategic perspective, the task of curbing the president’s warmaking powers would seem to require a change in the culture among America’s elites. This is to say, there is strong evidence that a gulf or chasm exists between the elected elites (and other elites as well) over the role of the United States in the world, particularly on the question of a commitment to war. For this reason, presidents have not been forthcoming with the American people about their policies designed to lead the nation into war. This secrecy is testimony to the fact that openness would have created public resistance on a wide scale. But, in essence, the problem would seem to be that modern presidents pursue imperialistic goals under the banner of American exceptionalism, whereas the American people are not by nature imperialistic. For instance, the American people soon sour on wars; they lack the patience and will for prolonged combat necessary for an imperial power. The draft has been abandoned and there is little chance, even as our forces are engaged in Iraq and Afghanistan in presumably vital actions, that it will be resumed because of intense popular opposition.
Why the attitude and outlook of modern presidents is at odds with that of the American public is an intriguing question. It could be, as Healy intimates at one point, the environment of the White House, in which the president is made aware of world problems, the solution of which, even through hostilities, proves too tempting. It might be that presidents look upon war as an avenue to greatness so that they are prone to jump in when the opportunity plausibly presents itself. Or, perhaps, it could be that a president gravitates naturally to the area of foreign affairs, rather than the domestic, because he has a freer rein there. But whatever the cause, the remedy of the kind Healy urges, an appreciation “of the virtues of restraint,” does not require a change in the public mind. Rather, the surest path is a change in the prevailing values and norms of those who occupy the executive office. But, sad to say, there is reason to believe this will only come to pass when the United States no longer has the power to pursue visions of empire.
To the broader question arising from Healy’s analysis, what are the chances of a return to normalcy, to a political environment where “we free ourselves of our atavistic tendency to see the chief magistrate as our national father or mother—responsible for our economic well-being, our physical safety, and even our sense of belonging?” While Healy expresses some optimism that this might come about in the not-too-distant future, there are, as I see it, enormous obstacles that may render any such return impossible. Certainly one such obstacle would be the advance of Progressivism and the eclipse of the Founders’ Constitution. Once the system switched gears, as it clearly did with the New Deal, and assumed a positive role in alleviating all manner of social ills, there could be no turning back. The people will not willingly give up the benefits they receive from the positive, welfare state. The president standing at the center of this state, even the most unpopular one, will enjoy a special place in the eyes of the people. Then, too, we know that presidents can play better to the masses than any individual or Congress.
To the extent that a return to normalcy would require a rejuvenation of Congress, other difficulties are encountered. Congress, largely for partisan reasons, simply does not stand up against the executive on fundamental issues such as, for example, defending its constitutional prerogatives. It is not uncommon nowadays to hear a representative or senator whine about the president’s usurpation of legislative authority on the grounds that Congress is an “equal and coordinate” branch and therefore is entitled to be consulted. The fact is, of course, that, as Publius tells us, Congress is the preeminent branch with sufficient power to police the other branches should they get out of line. Whining merely indicates the degree to which our original Constitution is viewed through a new lens that, in effect, enshrines the presidency. To expect Congress to exert the powers it still formally possesses to curb the executive and confine it to its proper constitutional role does not seem likely barring a presidential misstep of enormous proportions. And even then, as the post-Watergate experience suggests, the restoration may be only temporary.
Congress is also at an enormous disadvantage against the presidency for still another and perhaps more basic reason. Institutional interest was relied upon by the Founders to keep the branches within their proper orbits. But of our three branches, the presidency is the one where institutional interest, in the sense I believe the Founders understood it, is the strongest. The Court comes next, with Congress a distant third. The president enjoys inherent advantages in this regard. These advantages include the fact that he is a single individual, and that history and lore now attaches to the office. Even schoolbooks, as Healy notes, exalt the office. Moreover, there is an unwritten rule that a president should never leave the office weaker than he found it upon entering. Indeed, the “strong” presidents, i.e., the “great” presidents, are those credited with significantly expanding executive power. By way of contrast, Congress is composed of many individuals from highly diverse backgrounds. Institutional interest is diluted; partisanship even trumps institutional interest. Congress, thus, has a harder time fighting off executive encroachments than the executive has in rebuffing Congress. Among others, executive powers multiply. Checking a president, not allowing for the expansion of executive powers, is about the best that can be hoped for, and in turn, this seems achievable when there is a divided government, a situation most political scientists find deplorable on grounds that it leads to “gridlock.”
A full appreciation of the significance of Healy’s effort can be had by reference to James Madison’s general proposition that people, if they want to avoid tyranny and oppression, should keep their eyes fixed on the institutions and individuals vested with power. In this vein, he wrote, “where numerous and extensive prerogatives are placed in the hands of a hereditary monarch, the executive department is very justly regarded the source of danger.” He was quick to add, however, that in a republic, such as that he was urging, the executive powers were “carefully limited,” while those of legislature were “more extensive, and less susceptible of precise limits.” Since, for this reason, the legislature would predominate in the proposed constitutional order, he implored the people “to indulge all their jealousy and exhaust all their precautions” “against the enterprising ambition of this department.”
Healy has, in my judgment, convincingly shown us that, to an alarming degree, power has shifted from Congress to the presidency; that now, for reasons he spells out, the modern, “heroic” presidency represents the greatest threat to the Republic. For alerting us to this danger in such a lucid and compelling manner, we owe him our profoundest thanks.
Republished with gracious permission from the Political Science Reviewer (Volume 39, Number 1, Fall 2010).
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1. Edward Corwin, The President: Office and Powers 1787–1957 (New York: New York University Press, 1957), 29–30.
2. Healy is on the mark in bringing this evidence to bear. If anything he doesn’t go far enough in indicating the degree to which both Madison and Hamilton were concerned to harness legislative powers. Even a cursory reading of Federalist48–51, which deal with how to preserve the constitutional separation of powers, reveals that Madison was concerned with the legislature overstepping its bounds. This concern was instrumental in determining the structure, processes, and powers of the institutions of the national government. For instance, the primary purpose of the presidential veto was to prevent legislative encroachment on executive powers. But what is obvious from The Federalist Papers is that neither Madison nor Hamilton shared Yoo’s understanding of presidential powers and prerogatives or anything resembling it.
3. It could be, of course, that the refusal of modern presidents “to puncture the public’s illusions” contributes to its “burgeoning . . . expectations.” In any event, the consequences noted below would be the same.
4. While there has been talk of disbarring those responsible for the OLC torture memos, it seems clear that the Obama Administration is not going to investigate the actions of those who allegedly violated laws and treaties. As Healy observes, for example, in the afterword of the paperback edition, “in a case alleging that the Bush administration had broken the law by facilitating the torture of terrorists suspects, the Obama legal team took the same position the Bush administration had. They argued that the State Secrets Privilege didn’t merely prevent the disclosure of sensitive pieces of evidence, it allowed the federal government to suppress the entire lawsuit and to send the litigants home.” What precedent this policy establishes for the future is open to serious question.
5. Healy clearly documents the constitutional abuses of the second Bush Administration. For an excellent and comprehensive treatment that places these abuses and violations in a broader historical context, see Louis Fisher, The Constitution and 9/11: Recurring Threats to America’s Freedom (Lawrence, KS: University of Kansas Press, 2008).
6. Healy’s observations on this score are reminiscent of Robert Nisbet’s observations on “Democratic Royalism.” Writes Nisbet: “Still another sign of the moribundity of the political community and of the larger crisis of authority in society is the astonishing growth during the past several decades of what can only be called democratic royalism. I refer to the presidency and the White House as repositories of a pomp, power, and splendor better known in the European monarchies which came into being during the Renaissance than in the kind of republic the Founding Fathers had in mind.” Robert Nisbet, Twilight of Authority (Indianapolis, IN: Liberty Fund, 2000), 22.
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