An Imperial Presidency
My freshman year of college at Denison University in 1974, I had the opportunity to immerse myself in politics. I took courses like “Advanced Legislative Process” and “Foreign Policy in the Twentieth Century.” I got to delve into government, structure, and history; all combined to explain where we are and where we came from. That might sound like a sentence to the depths of Hell to some, but for me it was a dream-come-true.
It was the year that Nixon resigned, after two full years of Watergate hearings and crisis. During that fall, I read a book by Arthur Schlesinger, an historian and advisor to President Kennedy. It wasn’t part of any course, just another swim in the political pond. It was called “The Imperial Presidency.”
Schlesinger described the growth of the Executive Branch and the office of the Presidency, particularly the growth since Roosevelt’s New Deal era. For example, during the Civil War, Lincoln’s “White House Staff” consisted of two secretaries and five other assorted personnel. Today that number is three hundred and seventy-seven, backed up by four thousand employees in the Executive Office.
I marveled that Schlesinger foresaw the overreach of the last year of Nixon’s tenure. And I also recognized the inherent contradictions that liberals like me were faced with: while the executive branch gaining increased power helped in areas like improving civil rights and reducing poverty, it also brought us the excesses of the Vietnam War and Watergate.
Neither Korean nor Vietnam were ever “declared” wars by Congress. Vietnam was managed by Presidents as an “executive action”; they were given war-making authority by Congress through the Gulf of Tonkin resolution. Congress gave up its ability to control the war and gave the Presidency a blank check.
In some ways, that made sense in the nuclear age. Beginning with Russia’s detonation of an atomic bomb in 1949, war was no longer a “six week to mobilize” process. The joke: “…Moscow in flames, bombs on the way, film at eleven,” was more than dark comedy, it was a real possibility. With the advent of Intercontinental Ballistic Missiles, the launch-to-strike time came down to thirty minutes. Presidents had to act, they couldn’t wait for a session of Congress to debate a war resolution.
And yet, that became a long term Presidential power. The Gulf of Tonkin resolution turned into the War Powers Act; it allowed the invasion of Granada, the Balkans, and Iraq. That was succeeded by the War on Terrorism authorization after 9-11, justifying the invasions of Afghanistan, Iraq again, and ultimately Syria. Though Congress debated and discussed from time to time, the President waged war literally on his own authority.
Congress has transmitted its authority to the President in other areas as well. Setting tariffs, dealing with natural disasters; in fact Congress created a law in 1974 called the “National Emergencies Act” giving the President extra-ordinary power simply by his declaring an “emergency.” Once declared, a “national emergency” and the authority that comes with it doesn’t go away. There are currently TWENTY EIGHT declared emergencies ranging from Iran, Narcotics Trafficking, the Balkans, Terrorism, to Venezuela (CNN).
Democracy is messy and time consuming. Presidents and the Congress have wanted to streamline more than just military actions: but to get that speed, Congress has ceded much of its authority to the executive. They wanted, to use the slogan of Musollini, “…the trains to run on time.” More recently, the partisan deadlock in the Congress has encouraged Presidents to find “executive” means of furthering their agendas. A recent example was President Obama’s DACA orders given children of illegal immigrants legal status. He couldn’t get Congress to act, so he did it himself.
So here we are, with a Congress that has tied itself in knots, and a President anxious to further his agenda, or as Trump would say, keep his campaign promises. Congress has essentially given him the authority to legislate through “emergency” declaration and executive orders. If you liked what President Obama did with DACA, it will be hard to argue against a President Trump “emergency.” The “check and balance” for both has been given away.
Don’t expect the Courts to be the ultimate protector of Congressional authority either. It would be hard to blame even the Federalist Society majority on the Supreme Court, if they said “…Congress gave him the power, Congress is the only one that can take it back.” If this is an inter-branch fight, why should the Supreme Court intervene when one side has already conceded.
It’s an Imperial Presidency, and we’ve let it happen. When Donald Trump declares an “emergency” at the Southern border, and proceeds to build “WALL,” he may well get his way and a victory in the current shutdown crisis. The House of Representatives can scream, but the McConnell led Senate will likely be silenced, giving away even more authority. It takes both House and Senate to defend the power of the Congress, and the 116thisn’t likely to do so.
In the years after Watergate, Congress legislated against the excesses Nixonian extremes in campaigning and executive influence. Whatever comes of our current crisis with President Trump; when it’s all over, Congress should look at the larger issue of Presidential authority, and take back the power they have so easily given away. We need our President to be less Imperial, and more bound by law. It may prove to be cumbersome and inconvenient, but it will safeguard real democracy.
