Calls for stricter regulation on home rental companies like Airbnb are about protecting the hotel industry, not the consumer or communities.
Are we all Wilsonians now?
Neoconservatives, it should be said in fairness, brought the 28th President’s ideology through the front door in the plain light of day in the form of a moralized and expeditionary foreign policy. What few noticed is what got simultaneously smuggled in the back: a constitutional philosophy that suppresses Congress, elevates the Presidency and replaces deliberation and an awareness of human frailty—once staples of conservative thought—with moral certitude and an emphasis on power concentrated in the daring man of decisive action. Those who prefer simpler political pleasures—liberty is one, prudence another—have reason for concern. For them, this is a season for a reassertion of legislative prerogatives, of the not merely equal but paramount role the Framers assigned to the most—indeed, the only—deliberative branch of government: Congress.
There are several reasons for partisans of liberty to resist the creeping Caesarism of the contemporary Presidency. One is that Publius’ principal concern is with power per se: its “encroaching nature,” as he says in Federalist 48. Power’s source is irrelevant to that inquiry: Danger attaches to wherever it is strongest, the legislatures in his day; the Presidency in ours. It has become commonplace for advocates of a strong executive to argue that extraordinary power can safely be lodged in the Presidency because the occupant of that office is accountable to the people. Yet in Federalist 51 Publius considers and explicitly rejects “responsibility” as an adequate safeguard against the tyranny of arbitrary rulers: “experience has taught mankind the need for auxiliary precautions.” Indeed, the fact that Presidential power proceeds from such a gushing font would be, for Publius, reason for caution, not carte blanche.
This brief for restraining power by accountability alone is offered by those who also make rhetorical obeisance to the Constitution, but it is not the Framers’ argument; it is their opponents’. The anti-Federalist Centinel made it: Government should not be too complicated; elect leaders for limited terms, he wrote, keep them accountable, call it a day. So did President Wilson. His assault on constitutional forms in his classic tract Congressional Government was focused on accountability as the only necessary prophylactic to abusive power, arguments that echo today in the claim that the President is answerable for abuses of his office not to Congress but only to the people directly through the mechanism of election. Thus Wilson, arguing that power was to be welcomed, not suspected:
If there be one principle clearer than another, it is this: that in any business, whether of government or of mere merchandising, somebody must be trusted, in order that when things go wrong it may be quite plain who should be punished. … Power and strict accountability for its use are the essential constituents of good government. … It is, therefore, manifestly a radical defect in our federal system that it parcels out power and confuses responsibility as it does. The main purpose of the Convention of 1787 seems to have been to accomplish this grievous mistake. … [T]he only fruit of dividing power has been to make it irresponsible.
Wilson ultimately found a strong Presidency useful for Progressive aims; contemporary neoconservatives have tended to find it hospitable to their goals in national security and foreign affairs. But they would do well to remember that the power inheres in the office, not the function. It is difficult to quarantine it to a single purpose. If Congress is emasculated on matters of foreign policy it can hardly assert itself on issues of domestic affairs, just as a President who possesses extraordinary powers to wage war on terror is sure to claim them to wage war on purported domestic crises too. President Obama already has, threatening Congress to its face in the State of the Union address that either it would act on climate change or he would, the two courses apparently being interchangeable.
Yet this Presidency-centric course assumes—as Wilson did—a nationalized and binary conception of public opinion, one comprised of ones and zeroes in which the American people either favor a given policy or oppose it. But public opinion—recall that ferocious fountain, and the founders’ fears thereof—is better understood as variegated and pixelated, and a body as diverse as Congress is better able to register those subtleties than one as black and white as the Presidency, a winner-take-all institution that shuts out losers entirely. Congress can handle issues with a surgical suppleness characterized by compromise and accommodation that is foreign to the up-or-down, with-us-or-against-us mentality of the Executive Branch. It can be sensitive to the relative intensity of minority views. A voter who opposes the President spends four years without so much as a chord of a voice in the Executive Branch; every voter in the mainstream always has access to a substantial and willing ear in Congress. The result is that Congress can take account of the intensity and complexity of public views in a way that the Presidency does not—indeed, explicitly resists doing.
On Willmoore Kendall’s reading, the views Congress does register are likely to be more moderate and grounded. The Executive, freed from the constraints of circumstance to indulge itself rhetorically, “is able … to put itself forward on any particular issue as the spokesman for either lofty and enlightened principle or still undiffused professional expertise, or both.” Congress, by comparison, is disadvantaged in the competition for loftiness—a chorus of 535, even were it conducted, which it is not, could not sing with the soaring clarity of one—but grounded in the common-sense views of multitudes rooted in local attachments and struggling closest to the ground with real questions of implementation.
What is sacrificed in all this, critics say, is decisive action. But this, too, is precisely the point, because decisiveness conceived in terms of speed alone is at war with what Aristotle and Burke conceived as the political virtue par excellence: prudence. Representatives deliberating together on the public good are engaged in politics in its noblest sense: as an activity that is not merely functional in character, not to be valued according to whether it leads to the best policy outcomes alone—though the assumption is that it will—but rather as a good in itself.
The problem is that the fascination with the decisive man of action that has long characterized Progressive thought—witness Wilson, Arthur Schlesinger and others—and has recently infiltrated a certain strain of conservative thinking is wholly divorced from the question of whether circumstances require such a man. Lincoln’s warning in the Lyceum Address—that the greatest threat to liberty would come from leaders seeking to reap glory when the field of greatness had already been harvested by the founding generation—deserves a renewed hearing these decades after the World War Two generation. One cannot be a Churchill without a war or a Roosevelt without a Depression; the desire for glory generates its own demand for crisis, and crisis is the handmaiden of power. Presidents cannot run for office on a platform of stasis, even if the times warrant it. They are evaluated—by historians, by journalists and, make no mistake, by voters—according to the volume of change they generate, without this being calibrated to need. James Madison called this the “multiplicity” of policymaking and regarded it as a vice. We call it a virtue.
Meanwhile, the aggrandized conception of the executive that results encourages servility among the people. The President emerges as a protector: Gene Healy’s father figure, a cultish personality with mystical powers. He comforts us in times of mourning, reassures us in moments of danger, controls on our behalf all distant and disparate events. Presidents have egged this on. Power is the reason.
Things did not start this way. Kendall and George W. Carey trace the originating symbol of the American tradition to the Mayflower Compact, a document whose signatories publicly appended their names to a framework of deliberation that promised no specific outcome but rather those laws “thought to be meet and convenient.” Emphasis, Kendall and Carey note, on “thought.” It implies awareness of human imperfection, of the limitations of our capacities, an explicit disclaiming of any special access to the mind of God despite having identified the glory of Heaven as a purpose of their undertaking. Deliberation not only accepts but embraces the fact of frailty as the essence of prudence. We cannot foresee all consequences, so we ought to proceed with caution, especially when meddling with such systems of infinite complexity as human society. Yet deliberation has emerged among partisans of a strong executive as a vice rather than a virtue. Among the reasons Chuck Hagel’s nomination for Defense Secretary was derided was the implication that he might be too deliberate about that for which deliberation would seem to be the most appropriate. “[T]he defense secretary,” wrote Eliot Cohen in but one example, “must be quite capable of sending young men and women into harm’s way. If he or she cannot do that and still sleep well at night, he or she has no business being in that job.” Decisiveness in the decisive moment, to be sure. By all means, make the plans; consider the consequences; if they warrant, pull the trigger. But not even a wink of sleep lost?
The desire here would seem to be for a politics of moral certitude that is not cognizably conservative but does bear the markings, again, of Wilsonianism. Wilson’s Olympian moralizing was legendary; Robert Nisbet relates that he cast himself as, in Nisbet’s phrase, the “Redeemer in the cause of humanity” in a conflict over the future of Princeton’s eating clubs. “If I didn’t feel that I was the personal instrument of God,” he once said, “I could never carry on.” His sanctimonious refusal to compromise even on so clear-cut a constitutional principle as Congress’ war powers cost him Senate ratification of the Treaty of Versailles. Something this grandiose is apparent in the contemporary executive: I Am the Change, in Charles Kesler’s formulation of Barack Obama’s salvific politics, which is fair enough, even as one awaits its prequel I Am the Decider.
Obama campaigned against President Bush’s expansive conception of the office but has, predictably, carried it forward. He and his predecessor alike have displayed arrogance toward the legislature that would be breathtaking were it not so predictable and outrageous were Congress not so pathetically compliant in reply. Ordered by Congress to stop torturing detainees in 2006, Bush eschewed the constitutional weapon at his disposal for defending what he believed to be his constitutional turf—his veto pen—instead using it to write this message: “The executive branch shall construe… the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power….” This was to say—undergraduates have no trouble ferreting out the message—he meant not to follow the law. But this signing statement, a device candidate Obama savaged, was indistinguishable from the one President Obama issued on a bill involving detentions of terrorist suspects: “Moving forward, my Administration will interpret and implement the provisions described below in a manner that best preserves the flexibility on which our safety depends and upholds the values on which this country was founded.” There is an implicit doctrine of presidential infallibility here. Congress mustered not even a yawn of self-defense in reply.
Advocates of strong presidential power have turned for succor to Federalist 70, which speaks of “energy” and “unity” in the executive. “Energy,” it should be specified, meant not that the President would drive the engine of state but rather that he would possess sufficient power to resist the encroachments of Congress and carry into effect its decisions: still an essentially reactive position. Execution can afford to be swift precisely because deliberation has already occurred and a decision reached in the legislative branch. None of this suggests the forward-moving, agenda-setting role of the contemporary Presidency. More important, in their headlong rush toward Federalist 70, these advocates of Presidential power tend to skip Federalist 69, which explains, illustratively, how the President differs from the King of Great Britain. His power as commander in chief, the fountainhead of the contemporary security state, is actually according to Hamilton “only the occasional command of such part of the militia of the nation as by legislative provision may be called into the actual service of the Union,” this as opposed to the King’s constant authority. The President would be “nothing more” than a first general or admiral after Congress has decided to engage in conflict. The President’s power to receive ambassadors, from which a power to recognize foreign governments and hence a plenary authority over foreign affairs has been deduced, was in fact “more a matter of dignity than authority,” one “without consequence in the administration of the government.”
Times, proponents of executive power say, have changed. The world is a big and dangerous and fast-moving place, and there is no longer room for the necessarily messy, public and slow-moving spectacle of Congressional deliberation. But the war in Iraq was debated publicly for months before President Bush ordered an invasion; the question was merely whether the prescribed Constitutional form was to be followed. If the Congressional power to declare war did not apply in this circumstance, it is difficult to see how it any longer applies in any. George F. Will observed during the run-up to the Iraq war that “some conservatives [were] construing into nonexistence the Constitution’s provision for involving Congress” in decisions regarding war and peace when they argued the President alone could launch war in Iraq.
That fighting terrorists requires adequate, and that adequate means robust, executive power is beyond dispute. Forms must adapt to change; balances ought to be struck. But there is a particular historical arrogance in the view that terrorism is so different, that the times in which we happen to live are so unique, that habeas corpus and other protections dating to the Magna Carta are ones we, in this circumstance arising suddenly in our era, can no longer abide. The fights against communism and fascism threatened far more lives, yet liberties were formally preserved even if occasionally impinged. Moreover, to adapt forms is not to jettison their foundational principles. Deliberation is one of them. Congress can and ought to retain a leading role in establishing the principles and striking the balances according to which terrorism is to be fought. Codifying standards for drone strikes would be a start. Such would not overly fetter the discretion of the executive; it would not involve Congress in identifying targets or choosing the time and place of attacks. It would simply recognize that there are underlying values that must be resolved and that a deliberate majority ought to be involved—has a responsibility to be involved—in resolving them.
To be sure, a “deliberate” majority is a considerable assumption in an era whose nearly every technological and political impulse discourages careful consideration. But the question remains which branch of government is likeliest to perform the functions for which deliberation is intended: slowing the pace of consideration, taking account of the comparative intensity of views, accommodating minority positions and involving citizens in the inherent goods of politics. The executive is virtually designed systematically to undermine these goods, operating as Hamilton said with “secrecy and despatch,” not publicity and prudence, residing wholly in the control of one ideology at a time rather than accounting for a multiplicity of them. An energetic executive delivers different goods, even attractive ones. They are the goods Wilson was after: clean, sharp angles of rationality and responsibility, efficiency, forward motion. But these goods reduce politics to instrumentality alone: Its purpose is to give us things we want, and if it is going to do so, it might as well do so quickly.
Wilson, like his predecessor Andrew Jackson and virtually each of his successors, was wont to note that he was the only elected official chosen by all the people and therefore the only agent of truly national concerns. Here again we see the binary conception of the national interest: It does not percolate upward from concrete local attachments. It has an independent and ethereal existence, and a black-and-white one at that: up or down, one or zero. Congress, by contrast, is said—perish the thought—to be mired in the morass of parochial interests. But David R. Mayhew raises the prospect that “in the long run a particularistic regime may prove more durable than an efficient bureaucratic state without local roots.” Tocqueville’s position is similar. He saw the American regime rooted in the very local attachments Wilson stigmatizes.
It can hardly be denied that these often operate at the expense of efficiency. But if efficiency is all we value, deliberation cannot compete. Neither can liberty—if, that is, we are to follow Publius in assuming that power inherently threatens it and that power therefore must be diffused. There is in this as in all good things a balance to be struck, one that captures sufficient authority for the objects of government—and certainly security ranks high among them—to be attained while preserving liberty. This is the essence of the American experiment. Its solution was a Constitutional regime of separation of powers in which the authorities to make rules and enforce them were split—including the authorities to start conflicts and prosecute them, to set policies and carry them out. Within that regime, it was natural that the authority that made laws—the authority on which all others, the authorities to execute and interpret, relied—would stand above. For liberty’s sake, it ought to again.
 Wilson, Congressional Government, 187 (emphasis in original).
 Wilson, Constitutional Government in the United States.
 Kendall, “Two Majorities,” 324, emphasis in original.
 See Schlesinger, The Age of Jackson and A Thousand Days, postures somewhat chastened in The Imperial Presidency.
 Healy, The Cult of the Presidency.
 Kendall and Carey, Basic Symbols of the American Political Tradition.
 Nisbet, The Present Age, page TK.
 Kesler, I Am the Change: Barack Obama and the Crisis of Liberalism.
 George F. Will, “Improvised War Etiquette,” Washington Post, August 29, 2002.
 Mayhew, Congress: The Electoral Connection, 163.