Sunday, January 15, 2006

The Supremacy of the Institutional Presidency

The courts of the United States have rarely ever been effective or even utilized checks upon the powers of the Executive office. Ever since Marshall made the distinction between "political" and "legal" issues in the first Supreme Court, the distinction has been maintained to a large degree and used many times. It is the give and take between the two political branches that will shape the roles of the Presidency vis a vis the Congress. We fluctuate between having what are referred to as the imperial and the imperiled presidency. The courts often cannot be good judges of what occurs on the battlefield or within the military services. The Congress on the other hand does have the tools and and incentive to check the power of the President.

Although the purpose of any legislature is to provide the guidelines for lawful action, where action is taken in absence of specific law it is not necessarily unlawful. Of course, concerning issues of armed conflict, our Legislature is empowered to make guidelines for the Armed Forces and to provide the framework for (or determine on issues of) war and peace. Nevertheless, the dynamic and fitful nature of warfare and foreign relations makes clear the impracticability of legislating for every possible contingency. Common sense and experience might reaffirm the impracticability of prelimiting legislation, moreover, with examples of the danger of attempting it. An overzealous propensity to circumscribe everything within the many letters of the law might very well destroy the most essential aspect of the law in general: spirit. An unworkable battery of legislation, constraining at once successive legislatures and those charged to execute the law, would soon teach us “how little the rights of a feeble government are to be respected, even by its own constituents,” let alone foreign enemies.

The Congress, when it chooses to do so, is constituted to act with deliberation and reflection, even (one would hope) in times of imminent danger. But the executive is so constituted to act with quickness and command. Accordingly, among the desiderata of the single executive, as argued by Alexander Hamilton, are “decision, activity, secrecy, and dispatch.” These can only be effectuated by competent powers, at once broad enough to demonstratively respond to emergency, and yet not so liberated from principled bounds as to be unrestrained. Perhaps the most competent power, and greatest trust, granted to the President is that of commander-in-chief of the Armed Forces. A most solid conclusion “drawn from the natural and necessary progress of human affairs” makes it clear that the most immediate care of government is providing “safety from external danger.” Moreover, “of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand.” With this in mind, it appears that the executive is distinctively empowered and intended to respond to security threats, or “external danger.”

With awesome power comes great responsibility. The President is charged not only to faithfully execute the law but also to “preserve, protect, and defend the Constitution of the United States.” Other duties include giving “to the Congress information of the State of the Union” and “[in] extraordinary occasions, conven[ing] both Houses, or either of them.” Just what constitutes “extraordinary occasions” may be difficult to define. Categorically, despite its perpetual recurrence, the nature of war and the burdens it places on governments and citizens could not be properly called ‘ordinary.’ Instances wherein the United States military is called into action ought not be so considered. Moreover, however broad the President’s powers may be, the classic maxim that the Legislature makes the laws while the Executive enacts them must stand for something.

Whereas the President is vested with executive power, he is charged with “taking care that the laws be faithfully executed.” The positive laws of the United States come from Congress. The supreme laws of the land are declared in the Constitution. The presumption in the former case is that the People of the United States, through their representation in Congress, shall control the laws that will control them. The presumption in the latter case is that the Constitution, recognizing natural rights and “secur[ing] the blessings of liberty,” shall be the ultimate law, acting both as the fountain and limit of the powers of government.

It is the Constitution, in fact, that the President takes an oath to “preserve, protect, and defend.” And, just as overweening prerogative, enervation in the executive is a sure path to ruin. Article II is therefore constituted so as not to unwisely or artificially hinder actions taken by the President that are essential to good administration or necessary to preserver the charter. It provides the ingredients for effective energy and salutary independence. These ingredients are unity, duration, provisions for adequate support, and competent powers: unity for responsibility; re-eligibility for duration; power of appointment for support; and a qualified negative to protect the powers of the office from usurpation as well as to restrain ill-designed laws. Hamilton says in Federalist 70 that “energy in the executive is a leading character in the definition of good government.” Energy, we are told, “…is essential to the protection of the community against attacks; it is not less essential to the steady administration of the laws; to the protection of property… [for] the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy.” In Federalist 25, Hamilton remarks that occasions will arise in which a standing army is needed to preserve order and security of society. He states, therefore, the impracticability of too greatly circumscribing the legislative discretion over the military, which would limit also the executive’s conduct and ability to administer to the laws. An army, perpetually needed, ought not be neglected; an army, once created, needs a perpetual and constitutional commander. The President, as commander-in-chief, necessarily has the duty to insure the order and tranquility of the country, and may need to do so from time to time without direct sanction from Congress. This could not mean in any regular fashion that upon creation of an army, the President would have singular initiative to pursue foreign or offensive adventure. It does mean, however, that as threats to domestic security are impossible to completely provide against, and by nature limitless, a certain degree of latitude must be left to the executive to act in emergency. Hamilton says it best: “Wise politicians will be cautious about fettering the government with restrictions that cannot be observed, because they know that every breach of the fundamental law, though dictated by necessity, impairs the sacred reverence which ought to be maintained in the breast of rulers towards the constitution of a country, and forms a precedent for other breaches where the same plea of necessity does not exist at all, or is less urgent and palpable.”

In terms of the President’s authority to conduct foreign relations and make treaties, “it cannot be doubted that his participation in [these] would materially add to the safety of the society.” First of all, the desiderata of the single executive, i.e. decision, activity, secrecy, and dispatch, “point out the executive as the most fit agent in those transactions; while the vast importance of the trust and the operations of the treaties as laws plead strongly for the participation of the whole or a portion of the legislative body in the office of making them.” As convenient as the President is as the organ for communications with foreign governments and treaty making, still he “can have no pretensions, from the nature of the powers in question compared with the nature of the executive trust, to that essential agency which gives validity to such determinations.” I take this “essential agency” to be that of the deliberative sort, entrusted to the Legislature and confirmed by the reason and consent, the responsibility and responsiveness, and the nature and structure of the Constitution that secure the natural rights of man from government excess.
It should be obvious that personal ability makes for very different Presidencies, yes. But it is the Constitution that contains the man within the law. It sets the threshold both low and high. Charisma, or lack thereof, cannot be the underpinning foundation of energetic and effective government. Identifying the extremely rare politician/patrician needed to direct the common weal through (and with) the grains of history must be near impossible. And there is no guarantee that such a rare politician shall be President if ever he is identified. Instead, as the Founders foresaw, the generations create very different men, and not all of them shall be Washingtons.

It is the Constitution, then, that maintains a stable order in America. Note these ideas. Even the unscrupulous find it necessary to defend their actions or policies in the Constitution, and this has been the continuing rule since we started this whole thing. This constant referral to the Constitution creates the impetus for examinations of rights and powers, perpetually. The Constitution forms the possible everyday.

The institutions and branches themselves, structured as they are, empowered as they are, responsible as they are to the deliberate sense of the community, create the conditions in which our governors, officers, and representatives exercise their power. The power of our governors is directed to the duty of a free government, fundamentally, and to the duties outlined in the Constitution primarily, and to the duties, the offices, of ensuring order and tranquility. Duty is the end, power is the means. Because the duty inherent in any office is at the forefront of the understanding of our system, even those lacking wisdom, virtue, or intelligence, who shall no doubt find their way into office (this is real life, after all), shall be contained in a system of explicit powers, explicit limits, explicit duties, and a climate of ideas that raises those officers found wanting to better (more powerful) levels, while restraining the too ambitious.

In considering the CinC Clause, it is important to note that the President has no internal checks placed upon him but a sense of personal duty. In the Constitutional Convention it was hotly debated and eventually decided against whether or not to append to the President an advisory board or council of revision. Rather than this, it was decided to remove any difficulties in ascribing sole responsibility for action to the President. This shouldn’t be casually brushed aside as of no consequence. Indeed, it is vitally important and farseeing to have tied a person’s self-interest to their sense of duty as the Founders so did in the Constitution’s structure of forms and powers. But it cannot be fathomed, as I see it, to read the CinC Clause as empowering the President to direct the armed forces as he sees fit without sanction or without a due sense of emergency. The sense of duty as a check only goes so far. In fact, a sense of duty is often as pernicious as it is beneficent. The experience of mankind has taught the necessity of auxiliary precautions. His power must be checked, then, effectually by the outside, from Congress primarily or from the Courts. These checks come in the form of four year elections, the Congressional power of the purse, and reactionary response of the Congress to Presidential initiative.

Congressional assertiveness usually puts a ceiling on Presidential power. Ideas and customs may do this when Congress cannot or will not. Let the climate of ideas change too greatly and the Congress will be ineffective in its duty to protect rights and policy considerations will dominate, creating poor and transient laws that address ephemeral, politically motivated concerns. If this happens, principle is lost and the ceiling, as well as the floor, of Presidential power will be set by the President. The Constitution can only contain what its parameters are understood to be, in principle.

Emergency powers, while being ordinarily outside the Constitution or prohibited by statute, might be necessarily lawful in extraordinary times or circumstances. And, as Lincoln showed us, the Congress and the Courts and the People would have the ability to judge of any actions taken by the President after her took them. The presumption, then, is not in favor of presidential initiative so much as it in favor of individual liberty, Constitutional reason, and effectual government. If this requires independent executive action, so be it. For there definitely exists Constitutional war-making. Indeed, the characteristics of the Executive office strongly support his sole energy, dispatch and discretion. At the same time, these qualities strongly suggest against the notion that the President ought to be considered as the sole initiator and prime mover of the forces, military or otherwise, of our government.

We would do well not to give too much prominence to the idea that the President is an elected monarch (which is the worst kind as the Founders saw it). The tension of the ideas behind the need for an energetic executive and the need for deliberative and representative councils cannot be too easily ignored. They are not incompatible; they are not, either, comfortable with the other. Locke has much to say about this, and Jefferson really liked Locke.


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