Originalism is a form of legal positivism and as such is devoid of moral force, except as a covert method of subverting a dominant left-liberal tradition.
The historians who have written about the presidency of Gerald Ford acknowledged that Ford “restored public trust in the government” but “often missed the important constitutional implications of his term,” writes Alex E. Hindman. Hindman, visiting professor of political science at the College of the Holy Cross, traces those implications in Gerald Ford and the Separation of Powers: Preserving the Constitutional Presidency in the Post-Watergate Period. More precisely, his guiding theme is that Ford’s constitutional presidency confirms the resilience and continuing relevance of the Founders’ Constitution for understanding and shaping American governance.
Recall that Ford assumed the presidency in the most inauspicious of circumstances. Congress, supported by public opinion but without seriously reckoning the political and moral costs, was abandoning South Vietnam. The war in Vietnam and the abuses of power surrounding the Watergate break-in undermined trust in the “imperial presidency” and called into question America’s place in the world, despite continuing Soviet hostility. The economy was weak, as reflected in a tenfold increase in the price of oil and the emergence of “stagflation.” President Nixon’s abuse of his powers undermined the legitimate authority of the chief executive, making the office suspect in the eyes of the public. The Democratic-controlled Congress, making use of this distrust, aspired to preeminence by diminishing the authority of the Ford presidency.
Recall, too, that Gerald Ford had been appointed, not elected, to the vice presidency from which he rose to the highest office in the land when President Nixon resigned in August of 1974. He thus could not claim the democratic legitimacy that is gained through a victorious national election. A competent, respected, and well-liked congressional leader, Ford had modest rhetorical skills, was not very effective on television, and, since he represented a safe Michigan district and had not endured a national election, was content to hold conventionally Midwestern, Republican views. How was this admirable, politically experienced, but somewhat limited man, placed in these unfavorable political circumstances, to fend off congressional encroachments and restore the President’s proper authority to govern?
Professor Hindman argues that Ford largely accomplished this by coming to understand the importance of, and actively asserting, the formal constitutional powers of the presidency. Less than one month after he took office declaring “our national nightmare is over,” he pledged to seek “a good marriage with Congress.” Then he pardoned President Nixon. Gone was the initial good will of his erstwhile congressional colleagues. Opposition hardened on the part of a Congress that had “appointed itself the champion of the people against executive excess.”
Ford’s personal limitations and political weakness foreclosed efforts to revive his political power through the power-seeking, “political persuasion” tactics advocated by Richard Neustadt or by means of more rhetorical or populist appeals. Congressional and public disaffection threw the politically weak president back on the constitutional powers inherent in his office. The Constitution’s separation of powers gave him a measure of independence, and its Article II powers gave him the authority to resist the administration’s adversaries.
The Founders viewed this separation as the best institutional means to prevent the concentration of governmental power and, thereby, to protect liberty. They also believed this separation would promote competent, efficient government by placing the three different functions of government in distinct governmental branches. The constitutional separation, Hindman notes, supports the independent executive who, in turn, is constitutionally and in practice the primary protector of the Constitution.
Two Views of the Presidency
The Founding charter established that the President was to be drawn from the general citizenry, who would participate in his selection indirectly. But the executive’s governing authority was understood to derive largely from the Constitution rather than from ongoing popular approval, although the Constitution and its amendments were, of course, popularly approved. The President’s significant aloofness from public opinion was intended to facilitate his capacity to restrain Congress (the popular, democratic, and therefore the most powerful branch) from intruding on the other branches or adopting ill-advised legislation.
This original, constitutional view of the presidency has given way to a much more democratic, and occasionally populist, view. The President is seen as deriving political legitimacy largely from public opinion rather than from his constitutional office. In our plebiscitary understanding of the office, the constitutional presidency has been superseded by the democratic, rhetorical presidency in which the President is expected to move the country forward by leading public opinion. This closer connection to popular opinion fosters expectations and opportunities of strong presidential leadership. But it also fosters unrealistic expectations of what its occupant might accomplish. And it opens the office to demagogic appeals or, at the other extreme, can undermine the President’s authority by making it too dependent on ill-informed or constitutionally destructive opinion.
Popular leadership was not a viable option for Gerald Ford, and he was not prepared to allow a resurgent Congress to significantly curtail the President’s constitutional powers. He was thus led to govern by relying on the Founders’ constitutional understanding of the office. What his presidency shows, suggests Hindman, is that in fact the popular presidency rests on the foundation of the less democratic, constitutional presidency, which is a reliable source of support for occupants of the White House in times of crisis, foreign and domestic. It shows, furthermore, that the foundational and operational views of presidential authority can exist concurrently—the popular layered on the constitutional—and thereby attests to the enduring resilience of the Founders’ constitutional design.
In line with his aspiration for a “good marriage with Congress,” Ford initially did what he had done as a legislative leader. His efforts to build consensus through bargaining and personal persuasion, however, exposed his political weakness and put him on the defensive. He needed to develop a governing strategy appropriate to his new office and capable of dealing with a Democratic Congress distrustful of the executive and determined to reduce its governing authority. The new strategy that evolved was to build “floating coalitions” that would vary according to the issue to be addressed and thus would take advantage of Ford’s detailed knowledge of the House of Representatives and its constituencies.
Properly Justifying the Use of the Veto
Most significantly, this strategy was to be backed up by frequent recourse to the President’s most significant constitutional weapon: the veto. Ford used it “to defend against Congressional intrusions on his office and to strengthen his part in the development of public policy.” As a practical politician, Ford was comfortable with political and policy considerations for sustaining a veto. But something more was needed, to counter the view that frequent vetoes were an ominous continuation of the imperial presidency. The President himself—a man not heavily schooled in political history or political thought—also needed to be convinced that employing the veto was his constitutional duty. This persuasive effort, explains Hindman, was undertaken by one of Ford’s special assistants, the political theorist Robert Goldwin.
Goldwin introduced the President and his staff to Alexander Hamilton’s arguments in Federalist 73 explaining and defending the President’s constitutional power to veto congressional legislation. Goldwin “convinced Ford” that not only were his policy objections deserving of consideration, but that his “principled opposition to legislation was constitutionally justified and required.” Further, he contended that Ford should “explicitly state” to Congress and the public that in employing his veto he “was relying on the constitutional powers of his office.” This would connect the veto to a general public reverence for the Constitution and respond to the contention that it was but “the personal fiat of an imperial president.” Goldwin “repeatedly pushed for Ford” to declare, when a veto was controversial, that “Today’s veto is a constitutional use of a constitutional power for a constitutional purpose.”
Hindman concludes that Goldwin’s “early coaching” regarding the chief executive’s constitutional powers had “a lasting effect.” On the other hand, Ford never employed the exact words Goldwin advocated and only gradually came to ground his opposition to Congress directly on his constitutional presidential powers. Near the end of his administration, he became “more comfortable citing the Constitution to publically support his positions,” but Hindman is ambiguous regarding the extent to which Ford earlier referred publically to such constitutional support. Thus in commenting on a Ford veto message, he observes that “the constitutional argument is never far beneath the surface” or, in another instance, that the reasons for opposition “have a constitutional character at their core”; and he later acknowledges that Ford “discovered a Hamiltonian understanding of the veto by the end of his term.”
This ambiguity reflects the fact that Ford only gradually grasped that, because he lacked public support, the Constitution was his primary, almost his sole, source of support. Ford was a serious, decent, dutiful man. The experience of trying to govern in accordance with the Constitution in a hostile environment gradually brought home to him that the Constitution not only pointed to his responsibilities, it also empowered him to more boldly assert his veto power to meet them. If he had come to that understanding sooner, he might have been a more effective educator of the public regarding the enduring constitutional basis of the Founders’ presidency.
The author concludes his discussion of the veto by defending Ford’s reluctance publically to ground his veto on his constitutional power: “Presidents cannot simply argue their constitutional position to a public unaccustomed to constitutional law . . . What the Constitution does for the public rather than what the Constitution is in its essential form is more important for presidents to articulate.” In the short run this may be true, but can constitutional government survive if there is not widespread, informed reverence for the Constitution? And is not just relying upon but also fostering this reverence one of the highest duties of a constitutional President?
The constitutional powers to address foreign and military affairs are blended between the two political branches. These different constitutionally grounded perspectives—for example, the rule of law versus national security—often generate public disagreements between the branches. These disputes illustrate, Hindman observes, the tendency of the separation of powers to promote public deliberation. He touches on Ford’s political and constitutional struggles with Congress regarding critical developments in Cyprus, Vietnam, the rescue of the personnel on the S.S. Mayaguez, and the War Powers Resolution, which sought to regulate the President’s authority to commit the armed forces to foreign combat.
Backlash Against the War in Vietnam
The Commander-in-Chief Clause is the “baseline” of the President’s authority in foreign/military affairs. Ford viewed the War Powers Resolution as both an unconstitutional intrusion on his Commander-in-Chief powers and as “unworkable” due to congressional unwillingness to share responsibility to act in uncertain, dangerous situations, particularly if such actions were unpopular. This was brought home to him as he sought to evacuate American troops from Vietnam. His efforts were met with congressional “silence” and an irresponsible refusal to provide any further funding as the “political toxicity of Vietnam made Congress run from responsibility.” The episode demonstrated that, in the face of hostile public opinion, the President’s constitutional power could be frustrated when its execution depended on the positive action by Congress.
Ford’s successful struggle with Congress over policy toward the civil war in Cyprus taught him that without the President’s leadership, “foreign policy made by Congress can be short-sighted, fickle, and prone to domestic faction.” Relying on his constitutional authority to conduct foreign affairs, he frustrated unwise efforts by congressional supporters of Greece to take sides in the Cypriot civil war by favoring the Greek Cypriots.
Finally, concerned about American credibility following the fall of South Vietnam, President Ford concluded that he must rescue the hostages seized on the American freighter, Mayaguez, by the Cambodian Khmer Rouge. In this situation he “fully expressed himself as Commander-in-Chief,” overcoming Defense Department reservations and, out of a concern for secrecy and dispatch, foregoing consultation with Congress. Hindman argues that the Mayaguez rescue had a “defining effect on President Ford’s term in office” by increasing his confidence and understanding that the Constitution “gave him the power to act in the national interest . . . with or without” congressional or popular support.
Anti-executive sentiments and the Watergate break-in abuses energized the Democratic Congress to pursue aggressively reform of the intelligence community. These initial congressional efforts intruded on the President’s constitutional powers and, the administration argued, threatened national security. When other measures failed, President Ford reluctantly invoked executive privilege to protect Secretary of State Henry Kissinger from a subpoena for information by the Pike Committee. Ford failed, however, to prevent the Church Committee, investigating targeted assassinations by the CIA, from unilaterally declassifying documents, including the names of American agents, one of whom was subsequently assassinated.
With the subsequent moderation of distrust of and hostility toward the executive, President Ford transitioned from his partially successful efforts to restrain Congress to a more proactive pursuit of reform of the American intelligence community. Drawing on the recommendations of his recently appointed Rockefeller Commission, Ford focused on reform of warrantless wiretaps, those sanctioned solely at the discretion of the Attorney General. In February 1976, the administration initially reformed this procedure by executive order. But to solidify the government’s wiretapping authority in the volatile post-Watergate political climate, it subsequently sought to work with Congress so as to confirm its policies in legislation: “Only a legislatively ordained procedure could maintain the president’s wiretapping authority in the wake of Watergate,” argued Attorney General Edward Levi.
The resulting FISA Court legislation, Professor Hindman notes, took account of two constitutional purposes—preserving civil liberties and national security—predominantly defended, respectively, by Congress and the administration. But in allowing Article III FISA Court judges a significant part in intelligence operations, and in compromising with Congress, did President Ford adequately protect, or did he imprudently compromise, the constitutional powers of his office? Hindman concludes that in his efforts to frustrate dangerous demands but also address the real need for intelligence reform, the President “did not abdicate his constitutional powers, but protected them against adverse public opinion and the intrusion of the other branches.”
Hindman concludes with an account of Ford’s struggle with Congress over the legislative vetoes which it repeatedly (295 in 1975) attached to legislation. The legislative veto granted Congress by concurrent resolution, and without presidential participation, the legal authority to nullify an executive interpretation or administration of a law. Congress sought to employ these vetoes to limit executive discretion in administering its laws.
The Ford administration viewed these vetoes as an intrusion on its constitutional power to execute the laws; Congress was moving from “vigorous legislative oversight” to an unconstitutional claim of “shared administration” with the executive, to an effective claim of legislative supremacy. Further, lawmakers were acting without presenting their laws to the President for his approval. The Ford administration did not directly challenge the legislative veto in the courts because they feared the Supreme Court would not declare the veto unconstitutional. Instead President Ford “confronted legislative encroachments as they arose” and opposed the vetoes in his signing statements of laws containing them, thereby “foreshadowing “ the Court’s later ruling in the case of Immigration and Nationalization Service v. Chadha (1983). In this as in other areas, the author concludes that President Ford grew in office “as a constitutional officer” as his “understanding of executive power” increased and his increased “political strength” enabled him to more actively assert his constitutional powers.
Self-Interest and the Nation’s Interest
Hindman concludes that Gerald Ford was a reasonably successful caretaker President. He was able to “survive politically” because he “learned to effectively wield the formal constitutional powers of his office.” But in the face of public and congressional hostility and his own limited grasp of the constitutional foundations of his office, what led him even early in his presidency to risk assertion of his constitutional powers such as the veto? Personal self-interest supported by the essential desire to do his job well. Paraphrasing Federalist 51, Hindman observes that Ford’s own interests became connected to the requirements of the constitutional order: “The Constitution forms the interests of officeholders and his constitutional responsibilities explain his education” and his emerging, if incomplete, understanding of the constitutional foundation of his office.
But even Alexander Hamilton, who stressed the constitutional grounding of the government’s authority, acknowledged that in a popular government the President can stand for the public interest only for a time against the contrary inclinations of the people. Relying on his presidential powers, President Ford could modify or negate congressional intrusions and policies but struggled to foster its positive cooperation. Later in his term his more robust assertion of presidential authority was the result not just of his greater understanding of his office, but of the emergence of a less hostile public and Congress. Thus the Ford presidency illustrates the enduring importance of the office’s constitutional powers but also the diminished authority of those powers given the much more democratic understanding of the office that has prevailed in the modern era.