Imperial and imperiled: the curious state of the executive.

• Author: Prakash, Saikrishna Bangalore

ABSTRACT

In the last four decades, the presidency has been characterized both as the "imperial presidency" as well as the "imperiled presidency. "From an originalist perspective, both camps have elements of truth on their side. When it comes to the conduct and initiation of wars, modern Presidents exercise powers that rival those the Crown possessed in England. Presidents claim the power to start wars, notwithstanding Congress's power to declare war. Moreover, Presidents insist that they have the sole right to determine how the armed forces will wage all wars, even though Congress clearly has considerable power over the armed forces. Law execution provides a fascinating contrast. The original Constitution established a single chief executive, empowered to execute all federal laws through subordinate executive officers. Over the course of almost a century and a half, Congresses have splintered the President's executive power, committing slivers of it to numerous independent agencies. In other words, alongside the Constitution's unitary executive, a number of independent executive councils have emerged. Hence the President is imperial in some respects and imperiled in others.

TABLE OF CONTENTS I. THE HYPER-COMMANDER: WAR POWERS AND THE STORY OF PRESIDENTIAL AGGRANDIZEMENT A. Original Framework: The Constrained Commander in Chief B. Modern Framework: The Absolute Commander in Chief II. THE ENERVATED, DIVIDED EXECUTIVE: LAW EXECUTION AND THE STORY OF THE INCREDIBLE SHRINKING CHIEF EXECUTIVE A. Original Framework: The Supreme Executive Magistrate B. Modern Framework: The Splintering of the Unitary Executive CONCLUSION Over three decades ago, in the midst of Watergate, Arthur Schlesinger argued that America had an "imperial presidency." (1) Though this apprehension waned in the late 1970s and 1980s, many members of the intelligentsia have sounded a fresh alarm, warning that America once again has an imperial presidency. (2) Critics of the George W. Bush administration have excoriated it for, among other things, wiretapping in supposed contravention of federal law, (3) employing coercive interrogation techniques, (4) and its announced policy of not abiding by statutory provisions it deems unconstitutional. (5) Some of the criticism has been rather pungent. Senate Majority Leader Harry Reid has described President Bush as "a loser and a liar" and has derided him as another "King George." (6) Mr. Reid subsequently apologized--but only, he likes to point out, for calling the President a "loser." (7) Bruce Fein, a conservative legal commentator, opined that "Mr. Bush would have quarreled with every indictment against King George III penned by Thomas Jefferson in the Declaration of Independence because it contradicted his monarch-like theory of a unitary executive." (8) President George W. Bush occasionally has added fuel to the fire. "I'm the commander--see, I don't need to explain--I do not need to explain why I say things. That's the interesting thing about being the president.... I don't feel like I owe anybody an explanation." (9) This attitude seemed to have a touch of regal hauteur to it, bringing to mind President Richard Nixon's far more imperial claim from the 1970s. (10)

Of course, there is nothing truly new here. Criticisms that the President has adopted monarchical trappings and attitudes are as American as apple pie. Indeed, such complaints were common even before there was a President. (11) In The Federalist No. 67, Alexander Hamilton rebuked those who had exaggerated the President's constitutional powers in a bid to defeat the Constitution. (12) His amusing comments are worth recounting today:

[C]alculating upon the aversion of the people to monarchy, they have endeavored to enlist all their jealousies and apprehensions in opposition to the intended President of the United States; not merely as the embryo, but as the full-grown progeny of that detested parent. To establish the pretended affinity they have not scrupled to draw resources even from the regions of fiction.... He has been decorated with attributes superior in dignity and splendor to those of a king of Great-Britain. He has been shown to us with the diadem sparkling on his brow, and the imperial purple flowing in his train. He has been seated on a throne surrounded with minions and mistresses; giving audience to the envoys of foreign potentates, in all the supercilious pomp of majesty. The images of Asiatic despotism and voluptuousness have scarcely been wanting to crown the exaggerated scene. We have been almost taught to tremble at the terrific visages of murdering janizaries; and to blush at the unveiled mysteries of a future seraglio. (13) This pattern of inveighing against alleged presidential pretensions and usurpations continued after ratification, with polemicists taking unwarranted potshots at America's Cincinnatus. (14) Thomas Jefferson's friends in the press claimed that George Washington and his Federalist allies were attempting to create a monarchy. (15) Much later, Abraham Lincoln was deemed a dictator and Franklin D. Roosevelt far worse. (16)

Such criticism of the executive branch is entirely healthy. Citizens who disagree with an administration's policies undoubtedly will voice vigorous criticisms and often will be prone to exaggerate the administration's defects. Moreover, members of the other branches, competing as they do for power and influence, naturally will take the President to task for supposedly overstepping his constitutional bounds.

What is perhaps of more recent vintage is the movement amongst some scholars and politicians to check the supposed trespasses by Congress upon the presidency. To be sure, there have been periodic calls to strengthen the presidency, such as the Brownlow Committee's administrative reforms proposed in the late 1930s. (17) But what is seemingly new is the sense amongst some that Congress has subdued, even shackled the presidency. (18) In the early 1980s, President Gerald Ford expressed this view with some exasperation, declaring that "[w]e have not an imperial Presidency but an imperiled Presidency." (19)

The diminishment of the presidency perhaps began in the late part of the nineteenth century with the creation of the Interstate Commerce Commission. (20) Over the course of the next century, Congress sought to make many fields of civil law execution independent of the President. This tendency to create independent executive fiefdoms seemed to accelerate and deepen after the Vietnam War and the Watergate scandal. (21) Congress not only continued to create independent agencies charged with executing the law (such as the Federal Election Commission), but it also enacted all manner of statutes that sought to curb the perceived excesses of presidential law execution. (22) The Impoundment Control Act, the Ethics in Government Act, the Foreign Intelligence Surveillance Act, the Hughes-Ryan Act--all of these and many others are the byproducts of that era's profound distrust of Presidents. (23)

Prominent members of the George W. Bush administration share the view that Congress has unduly hampered the presidency. Vice President Dick Cheney has said that "[i]n the aftermath of Vietnam and Watergate ... there was a concerted effort to place limits and restrictions on presidential authority...." (24) These efforts "were misguided...." (25) In other remarks, the Vice President has said he believes "in a strong, robust executive authority," and that "the world we live in demands it...." (26) He further claimed that "we have an obligation as an administration to pass on the offices we hold to our successors in as good of shape as we found them." (27) Sounding a note of optimism, Cheney claimed "that to some extent now, we've been able to restore the legitimate authority of the presidency." (28)

In comments on the scandal surrounding President Bill Clinton's pardons of Marc Rich and others, President Bush has said he was "mindful not only of preserving executive powers for [him]self, but for predecessors as well." (29) For this reason (and perhaps others), the President did not want an investigation opened into the particulars of President Clinton's flurry of last-minute pardons. (30) Certain decisions of President Bush, such as executive orders that gave prior Presidents a veto on the release of certain of their administrations' documents, certainly seem designed to respect (and perhaps enhance) the prerogatives of past Presidents. (31) By augmenting the power of past Presidents to restrain the release of documents, Bush undoubtedly understood that he likewise was enhancing his own authority to prevent the release of his administration's papers once he leaves office.

I will not try to referee the dispute between those who think the presidency has become too muscular and those who regard it as entirely too frail. At some level, saying that the President has become overbearing and all-powerful is a little like saying that a cup of coffee is too bitter. To a degree, it is a matter of preference, making it a matter upon which reasonable people can disagree. Some people prefer strong Presidents who will cut through political impasses and take decisive action. Others prefer Presidents who are more passive and deferential to Congress, the courts, or the public.

Additionally, criticism of a particular President often reflects the partisan sensibilities of the critics. People frequently look the other way when a co-partisan takes some controversial action even if they might have criticized the practice when done by politicians of another party. For instance, few legal scholars criticized President Clinton's decision to wage war on Serbia even though there were many who had vociferously opposed previous presidential wars. (32) One must suppose that partisan identification with President Clinton coupled with approval of America's participation in the Balkans War accounts for the remarkable silence...