The Return of the ?

One lesson of American politics since September 11 is that some tensions between presidents and Congress spring from a deeper source than the partisan passions of the moment.

by Donald R. Wolfensberger

oments after President George W. nine months earlier Beschloss had described MBush finished his stirring antiterrorism Bush as “the first post-imperial president” speech before Congress last September, presi- because, for the first time since the Great dential historian Michael Beschloss enthusias- Depression, “we were not electing a president tically declared on national television that “the under the shadow of an international emer- imperial presidency is back. We just saw it.” gency like the or World War II or an As someone who began his career as a economic crisis.” Then came September 11. Republican congressional staff aide during the Still, it’s hard to join in such a warm welcome turbulence of and Watergate in the late for the return of an idea that was heavily bur- 1960s and early 1970s, I was startled by the dened just a generation ago with negative asso- buoyant tone of Beschloss’s pronouncement. ciations and cautionary experiences. Presi- To me, “imperial presidency” carries a pejora- dential scholars understandably become tive connotation closely tied to those twin admirers of strong presidents and their presi- nightmares. Indeed, Webster’s Unabridged Dic- dencies. But a focus on executive power can tionary bluntly defines imperial presidency as “a become so narrow as to cause one to lose sight U.S. presidency that is characterized by greater of the larger governmental system, with its power than the Constitution allows.” checks and balances. To invest the idea of the Was Beschloss suggesting that President imperial presidency with an aura of legitimacy Bush was already operating outside the Consti- and approbation would be a serious blow to tution in prosecuting the war against terrorism, America’s constitutional design and the intent or did he have a more benign definition in of the Framers. mind? Apparently it was the latter. As Beschloss It was historian Arthur M. Schlesinger, Jr., went on to explain, during World War II and the who popularized the term imperial presidency Cold War, Congress deferred to presidents, not in his 1973 book by that title. Schlesinger, who just on questions of foreign policy and defense, had earlier chronicled the strong presidencies but on domestic issues as well. Whether it was of Andrew Jackson and Franklin D. Roosevelt President Dwight D. Eisenhower asking for an in admiring terms, admits in The Imperial interstate highway system or President John F. Presidency his own culpability in perpetuating Kennedy pledging to land a man on the moon, over the years “an exalted conception of presi- Congress said, “If you ask us, we will.” Without dential power”: such a galvanizing crisis, the president would not be able to define the national interest so com- American historians and political scientists, pletely. “Now,” continued Beschloss, “George this writer among them, labored to give the Bush is at the center of the American solar sys- expansive theory of the Presidency historical tem; that was not true 10 days ago.” In fact, just sanction. Overgeneralizing from the [pre-

36 Wilson Quarterly “A Senator Fulbright to see you Sire. Seems he can’t reconcile himself to your infallibility,” reads the caption of this -era cartoon.

World War II] contrast between a President foreign policy soon began to pervade and who was right and a Congress which was embolden the domestic presidency.” wrong, scholars developed an uncritical cult The growth of was of the activist Presidency. gradual, and occurred “usually under the demand or pretext of an emergency,” Schle- The view of the presidency as “the great singer observes. Further, “it was as much a mat- engine of democracy” and the “American peo- ter of congressional abdication as of presidential ple’s one authentic trumpet,” writes Schle- usurpation.” The seeds of the imperial presidency singer, passed into the textbooks and helped were sown early. Schlesinger cites as examples shape the national outlook after 1945. This ’s 1861 imposition of martial faith of the American people in the presidency, law and his suspension of , and coupled with their doubts about the ability of William McKinley’s decision to send 5,000 democracy to respond adequately to the totali- American troops to China to help suppress the tarian challenge abroad, are what gave the post- of 1900. It is a measure of how war presidency its pretensions and powers. much things have changed that Theodore “By the early 1970s,” Schlesinger writes, “the Roosevelt’s 1907 decision to dispatch America’s American President had become on issues of war Great White Fleet on a tour around the world and peace the most absolute monarch (with was controversial because he failed to seek con- the possible exception of Mao Tse Tung of gressional approval. Then came Woodrow China) among the great powers of the world.” Wilson’s forays into revolutionary Mexico, Moreover, “the claims of unilateral authority in FDR’s unilateral declaration of an “unlimited

Spring 2002 37 The Imperial Presidency

national emergency” six months before Pearl actions as one of several causes of the Harbor, and Harry Truman’s commitment of decline. U.S. troops to the in 1950, without As one who worked in the House of congressional authorization, and his 1952 Representatives from 1969 to 1997, I have long seizure of strike-threatened steel mills. been puzzled by such complaints. They have never rung true. What I witnessed during those n 1973, the year The Imperial Presidency years was the continuing decline of the legisla- Iwas published, Congress moved to reassert tive branch, not its ascendancy. Even Congress’s its war-making prerogatives during non- post-Watergate efforts to reassert its authority declared wars by enacting the War Powers look rather feeble in the harsh light of reality. The Resolution over President Nixon’s veto. The War Powers Resolution has been all but ignored following year, prior to Nixon’s resignation by every president since Nixon as unconstitu- under the imminent threat of impeachment, tional. They have abided by its reporting Congress enacted two more laws aimed at clip- requirements, but presidential military forays ping the wings of the imperial presidency and abroad without explicit congressional authority restoring the balance of power between the two continue unabated. Bosnia, Kosovo, Haiti, branches. The Congressional Budget and Somalia, and Serbia come readily to mind. Impoundment Control Act of 1974 was The congressional budget act has been used designed to enable Congress to set its own by every president since to spending priorities and prohibit the president leverage the administration’s priorities by using from impounding funds it had appropriated. budget summits with Congress to negotiate the The Federal Election Campaign Act of 1974 was terms of massive reconciliation bills on taxes and supposed to eliminate the taint of big money entitlements. The independent counsel act has from presidential politics. Subsequent years been allowed to expire twice—though, in light witnessed a spate of other statutes designed to of the unbridled power it gives counsels and the right the balance between the branches. The potential for abuse, this may have been wise. (1976) abolished Federal funding of presidential campaigns has scores of existing presidential emergency pow- not stopped campaign finance abuses. And ers. The Ethics in Government Act (1978) congressional oversight of perceived executive authorized, among other things, the appointment abuses has met with mixed results at best. of special prosecutors to investigate high-rank- In the meantime, presidents have been rely- ing executive branch officials. The Senate, in ing more heavily than before on executive 1976, and the House, in 1977, established agreements to avoid the treaty ratification intelligence committees in the wake of hearings process, and on executive orders (or memo- in 1975 revealing widespread abuses; and in randums) of dubious statutory grounding in 1980 the Intelligence Oversight Act increased other areas. Administrations have defied Congress’s monitoring demands on intelli- Congress’s requests for information with gence agencies and their covert operations. increasing frequency, dismissing the requests Since those Watergate-era enactments, pres- as politically motivated. And they have often idential scholars have decried the way invoked in areas not previ- Congress has emasculated the presidency. ously sanctioned by judicial judgments. As recently as January of last year, political sci- entist Richard E. Neustadt, author of the he most recent example is Vice President classic Presidential Power (1964), lamented TRichard Cheney’s refusal, on grounds of that “the U.S. presidency has been progres- executive privilege, to turn over to the General sively weakened over the past three decades Accounting Office (GAO), an arm of Con- to the point where it is probably weaker gress, information about meetings between the today than at almost any time in the preced- president’s energy task force and energy execu- ing century.” Neustadt cited congressional tives. The controversy took on added interest with

>Donald R. Wolfensberger is director of the Congress Project at the Wilson Center and the author of Congress and the People: Deliberative Democracy on Trial (2000). He retired as chief of staff of the House Rules Committee in 1997 after a 28-year career on the staff of the U.S. House of Representatives. Copyright © 2002 by Donald R. Wolfensberger.

38 Wilson Quarterly Uniforms redolent of imperial pomp briefly appeared on guards in the Nixon administration, only to vanish after a public outcry. the collapse of Enron, one of the energy com- the South and West, which has given a more pop- panies that provided advice to the task force. Vice ulist and propresidential cast to the GOP mem- President Cheney, who served as President bership on Capitol Hill. Gerald R. Ford’s White House chief of staff, Even with recent promises by Speaker of the said his action was aimed at reversing “an ero- House Dennis Hastert (R-Ill.) and Senate sion of the powers” of the presidency over the last Majority Leader Tom Daschle (D-S.D.) to 30 to 35 years resulting from “unwise compro- “return to the regular order” by giving commit- mises” made by past Administrations. President tees greater flexibility and discretion in agenda Bush backed Cheney’s claim of executive priv- setting and bill drafting, Congress is hamstrung ilege, citing the need to maintain confidential- by self-inflicted staff cuts and three-day legisla- ity in the advice given to a president. tive workweeks that make deliberative lawmak- It is revealing in this case that the congressional ing and careful oversight nearly impossible. The requests for information came not through for- “permanent campaign” has spilled over into mal committee action or subpoenas but more governing, diminishing the value members see indirectly from the GAO, at the prompting of two in committee work and encouraging partisan posi- ranking minority committee Democrats in the tion taking and posturing. (It also makes mem- House, even though their Senate party coun- bers eager to get back to their districts for the seri- terparts are committee chairmen with authori- ous work of campaigning, which explains the ty to force a vote on subpoenas. The committee three-day work week in Washington.) It is easi- system, which should be the bulwark of con- er to take a popular campaign stand on an unre- gressional policymaking and oversight of the solved issue than make a painful policy choice executive branch, has been in steady decline and explain it to the voters. since the mid-1970s. Not the least of the caus- Is it any wonder that even before the current es is the weakening of committee prerogatives emergency the executive was in a stronger posi- and powers by Congress itself, as a response to tion than Congress? Such power alone is not nec- members’ demands for a more participatory essarily a sign of an imperial presidency. But test- policy process than the traditional committee sys- ing the limits of power seems to be an inborn trait tem allowed. Party leaders eventually replaced of political man, and presidents are no exception. committee leaders as the locus of power in the Even presidential power proponent Richard House, a shift that was not altered by the Neustadt, who sees the presidency at the begin- change in party control of Congress in 1995. ning of this 21st century as the weakest it’s been Another contributing factor has been the in three decades, concedes that none of the for- shift in the Republican Party’s base of power to mal limits on presidential powers by Congress

Spring 2002 39 The Imperial Presidency or the courts have managed to eliminate those Byrd was concerned in part about the way in powers of greatest consequence, including the which language relating to the controversy over “plentitude of prerogative power” (a Lockean adhering to the 1972 antiballistic missile treaty concept of acting outside the constitutional box had been jettisoned from a pending defense to save the nation) that Lincoln assumed during authorization bill in the interest of “unity” after the Civil War. the terrorist attacks. But he was also disturbed by Both presidents George H. W. Bush and the haste with which the Senate had approved George W. Bush, to their credit, sought autho- the use-of-force resolution “to avoid the specter rization from Congress for the use of force of acrimonious debate at a time of national cri- against Iraq and international terrorists, respec- sis.” Byrd added that he was not advocating tively, before committing troops to combat. Yet unlimited debate, but why, he asked, “do we have both also claimed they had inherent powers as to put a zipper on our lips and have no debate president to do so to protect the national inter- at all?” Because of the “paucity of debate” in both est. (The younger Bush was on firmer ground houses, Byrd added, there was no discussion since even the Framers explicitly agreed that the laying a foundation for the resolution, and in the president has authority to repel foreign inva- future “it would be difficult to glean from the sions and respond to direct attacks on the record the specific intent of Congress.” .) A review of the Congressional Record supports Byrd’s complaint. Only Majority Leader he presidency is at its strongest at the out- Daschle and Minority Leader Trent Lott (R- Tset of a national crisis or war. Just as Miss.) spoke briefly before the Senate passed the President Franklin D. Roosevelt was encoun- emergency spending bill and the use-of-force res- tering public and congressional wariness over his olution. The discussion was truncated chiefly depression-era policies in the late 1930s, along because buses were waiting to take senators and came World War II and a whole new lease on House members to a memorial service at the the throne. Presidential power tends to increase National Cathedral. at the expense of Congress. Alexander Hamil- The House, to its credit, did return after the ton put it succinctly in The Federalist 8: “It is of service for five hours of debate on the resolution, the nature of war to increase the executive at the which it passed 420 to 1. Some 200 members expense of the legislative authority.” spoke for about a minute each—hardly the stuff One way to gauge this balance of power is to of a great debate. At no time did any member look at the extent to which Congress deliberates raise a question about the breadth, scope, or dura- over policy matters and the extent to which it tion of the authority granted by the resolution. gives the president most of what he requests The closest some came were passing references with minimal resistance. Two weeks after to the way in which President Lyndon B. Congress passed a $40 billion emergency Johnson had used the language of the 1964 spending bill and a resolution authorizing the Gulf of Tonkin Resolution as authority to president to use force against those behind the broaden U.S. involvement in Vietnam. World Trade Center attacks, Senator Robert S. To the credit of Congress, a small, bipartisan Byrd (D-W.Va.) rose in a nearly empty Senate leadership group had earlier negotiated a com- chamber to remind his colleagues of their promise with the White House to confine the deliberative responsibilities. “In the heat of the resolution’s scope to “those nations, organizations moment, in the crush of recent events,” Byrd or persons” implicated in the September 11 observed, “I fear we may be losing sight of the attacks. The original White House proposal larger obligations of the Senate.” was much broader, extending the president’s authority “to deter and pre-empt any future acts Our responsibility as Senators is to carefully of terrorism or aggression against the United consider and fully debate major policy mat- States.” The language change is significant. If ters, to air all sides of a given issue, and to act President Bush cannot demonstrate that Iraq was after full deliberation. Yes, we want to somehow involved in the respond quickly to urgent needs, but a speedy but decides to take military action against it, he response should not be used as an excuse to will have to decide whether to seek additional trample full and free debate. authority from Congress or act without it, as

40 Wilson Quarterly President Bill Clinton did before him. In times of war or national emer- gency, presidents have always acted in what they thought to be the national interest. That is not to say that Congress simply becomes a presi- dential lap dog. While it tends to defer to the commander in chief on military matters once troops have been committed to combat, it con- tinues to exercise oversight and inde- pendence on matters not directly affecting the war’s outcome. For example, President Bush was forced to make drastic alterations in his economic stimulus package by Senate Democrats who disagreed with his tax relief and spending pri- orities. And even in the midst of the war on terrorism, the House and Senate intelligence committees launched a joint inquiry into why our intelligence services were not able to detect or thwart the September 11 terrorist plot. In the coming months, moreover, Con- gress is sure to have its own ideas on He had the common touch—and an imperial taste for send- how the federal budget can best be ing U.S. troops abroad without congressional approval. allocated to meet the competing demands for defense, homeland security, and essential to the preservation of liberty.” The domestic social-welfare programs. “great security against a gradual concentration of power in the same department,” he went on, s the imperial presidency back? While at is to provide each department with the “neces- Ithis writing the White House has not overt- sary constitutional means and personal motives ly exercised any extraconstitutional powers, the to resist. . . . Ambition must be made to coun- imperial presidency has been with us since teract ambition.” World War II, and it is most likely to be re-ener- The Constitution’s system of separated pow- gized during times of national crisis. Every pres- ers and checks and balances is not a self-regu- ident tends to test the limits of his power during lating machine. Arthur M. Schlesinger, Jr., such periods in order to do what he deems nec- observed in The Imperial Presidency, that what essary to protect . To the extent kept a strong presidency constitutional, in addi- that Congress does not push back and the pub- tion to the president’s own appreciation of the lic does not protest, the armor of the imperial Framers’ wisdom, was the vigilance of the presidency is further fortified by precedent and nation. “If the people had come to an uncon- popular support against future attacks. scious acceptance of the imperial presidency,” What is the danger in a set of powers that have, he wrote, “the Constitution could not hold the after all, evolved over several decades into a nation to ideals it was determined to betray.” The widely recognized reality without calamitous only deterrent to the imperial presidency is for consequences for the Republic? As James the great institutions of our society—Congress, Madison put in The Federalist 51, “The separate the courts, the press, public opinion, the uni- and distinct exercise of the different powers of versities, “to reclaim their own dignity and meet government . . . is admitted on all hands to be their own responsibilities.” ❏

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