Justice Ginsburg repeatedly expressed her opinions about President Trump, and under similar circumstances any judge would be forced to recuse themselves.
Greg Weiner calls for reinvigorating those elements of “prudence” and “deliberation” found in the American system of separation of powers. These elements are located in the legislative branch, Weiner argues, noting that all “partisans of liberty” must “resist the creeping Caesarism of the contemporary Presidency.” Weiner rightly notes the bias toward change oriented presidents, with our so-called “great” presidents judged by their commitment to pushing the boundaries of the office in pursuit of progressive policies. While this is true, Greg’s essay is unfortunately marred by a tendency toward overstatement when he calls for dismantling our “Presidency-centric” system and “restoring” Congress to its rightful place.
Weiner’s claim that “creeping Caesarism” is a contemporary phenomenon is one example of his tendency toward overstatement. “Creeping Caesarism” has been with us since 1789, enabled in part by the vague language of article two of the Constitution, particularly the “vesting clause,” but also by the president’s Constitutionally mandated oath (the only oath required by the Constitution), by the creation of a single executive (which, by the way, enhances the prospects for the accountability that Greg mentions in his essay), by the president’s powers as Commander in Chief, and by that nebulous and potentially dangerous concept of presidential prerogative power, the latter power endorsed by an array of American statesmen, including Alexander Hamilton, Thomas Jefferson, Joseph Story, Abraham Lincoln, and Franklin Roosevelt. All of this, coupled with the argument for presidential “decision, activity, secrecy, and dispatch” found in The Federalist essays, provides formidable evidence that Weiner’s “creeping Caesarism” has been with us since 1789, and is as American as Andrew Jackson.
In Federalist #64, John Jay observed that it is incumbent on the president to capitalize on shifting tides, sometimes in secret, frequently against the tides of public opinion. “To discern and to profit by these tides in national affairs is the business of those who preside over them,” Jay noted, adding that “there are moments to be seized as they pass, and they who preside . . . should be left in capacity to improve them.” Indeed, Hamilton argued in Federalist #70 that “energy in the Executive is a leading character in the definition of good government” in part because it was “essential to the protection of the community against foreign attacks.”
George Washington and Alexander Hamilton learned from painful experience that conducting war by committee was a prescription for failure, and they acted accordingly under the new Constitution. After seeking the advice of the Senate on a treaty with the Creek Indians, Washington vowed never to repeat that mistake again. Washington refused the House of Representatives request for documents related to the Jay Treaty; unilaterally issued a neutrality proclamation; and, in his First Annual Message to Congress, called for the creation of a secret service fund – a foreign policy slush fund available for the president’s use as he saw fit, without revealing to Congress how those funds would be spent. Thomas Jefferson once noted that “the transaction of business with foreign nations is executive altogether” – not surprising coming from the architect of the Louisiana Purchase or from the man who spent unappropriated funds during the war crisis of 1807. James Madison authorized a successful covert operation to overthrow a weak Spanish colonial government in West Florida and later lied about it to protesting Spanish officials. Madison attempted a similar operation in East Florida, all the while maintaining “plausible deniability” with Congress and various foreign governments.
In the realm of national security and foreign affairs, secrecy and dispatch are essential, and not just in terms of allowing for a shrewd foreign policy, but in enhancing the security, and yes, the liberty, of the American people. Secrecy and dispatch characterized Abraham Lincoln’s covert operations to secure support for the Union from Great Britain and France, as did Franklin Roosevelt’s machinations prior to the entry of the United States in the Second World War, undertaken while Congress dithered. Richard Nixon moved in secret to alter American policy towards the People’s Republic of China. Weiner notes 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.” Thankfully so, for this permits acts of presidential statesmanship in defiance of public opinion.
Weiner laments the rise of the President as “Father Figure,” although here again he overstates his case. The president’s role as head of state puts him in a unique position to act as a spokesman for the aspirations of the nation. The plaudits directed toward Washington’s Farewell Address and Jefferson’s effort to publicize his first inaugural address indicate that even at this early date it was envisaged that the president would play an educative role. Remove Lincoln’s Gettysburg address and his second inaugural address from the American corpus, and you have a lesser nation. The assassinations of Lincoln (“Father Abraham,” as he was known to many) and James Garfield in the nineteenth century generated outpourings of grief, indicative of the emotional hold that the chief executive had on the American public well before the rise of activist twentieth century presidencies.
In addition to suggesting that there is something new in the rise of an imperially inclined executive, Greg implies that neoconservatives created this situation. He observes that “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.” While many errors in judgment can be blamed on neoconservatives, the notion that they are the architects of an imperial presidency is misguided – neoconservatives seem, in our time, to be blamed for everything from impetigo to global warming. Greg Weiner is correct to say that “fascination with the decisive man of action” has “recently infiltrated conservative thinking” – but again, one must be careful not to overstate this, in that Alexander Hamilton, Thomas Jefferson, and George Washington understood the need for a decisive man of action in times when the nation’s security was at stake. Both Washington and Hamilton had learned from their military experience that conducting war by committee was a prescription for failure. The endless congressional delays and leaks that bedeviled the American revolutionary war effort were never forgotten by either Washington or Hamilton, both of whom had an inordinate influence in constructing the executive branch.
Greg’s argument that wars tend to lead to an expansion in the size and reach of the federal government is also somewhat overstated, for just as certainly delay and risk aversion, not to mention simple unpreparedness, can be a threat to liberty as well. The notion that war is the handmaiden of tyranny is a classic Jeffersonian/Madisonian maxim, even if it was more honored in the breach than actually observed. This principle is very much a part of the American mind, and certainly predates the war on terror, and yet it is by no means guaranteed that wars abroad will generate domestic oppression and infringement of civil liberties at home. American participation in two world wars in the twentieth century bolstered the cause of civil rights for African-Americans as well as for American women. The American left is fond of recalling the oppressive state of affairs in the United States during the Cold War, with Senator Joseph McCarthy and J. Edgar Hoover targeting left-leaning academics and Hollywood screen writers. Yet at the height of this Cold War “nightmare” the United States experienced an unparalled expansion of civil rights and civil liberties.
It also must be noted that Congress does not have a monopoly on prudence and deliberation. American history is replete with examples of Congress driving misguided, hastily conceived, warlike policies. The pressure from congressional “War Hawks” contributed to the American entry into the War of 1812, as it did again in the Spanish-American War. American policy toward Native-Americans was driven at different times by the desire of the public, expressed through their congressional representatives, to seize Indian territory. Closer to our time, members of Congress lobbied for action against the Noreiga regime in Panama, with the executive acting at times as a restraining force against calls for intervention. During the Clinton presidency the loudest voices for intervention in the Balkans came from the United States Congress. Weiner also sleights the amount of deliberation that goes on within the executive branch itself – for instance, during the Cuban Missile Crisis, when President Kennedy and his advisors formulated a balanced response to the Soviet introduction of nuclear weapons in Cuba. The transcripts of those secret meetings reveal intense deliberation over the proper course of action, with a wide range of options presented to the president. It was members of Congress who, once briefed on the situation, insisted that Kennedy order an invasion of Cuba.
It is also an overstatement to claim that when “Congress is emasculated on matters of foreign policy it can hardly assert itself on issues of domestic affairs.” This was not the experience of Richard Nixon during the Vietnam War, or of George Herbert Walker Bush in the wake of “Desert Storm,” or of George W. Bush during the War on Terror. And it is simply not true that the Patriot act was “rammed” through Congress or that the Medicare prescription drug program was “muscled” through that body. President Bush’s top second term domestic priority was Social Security reform, which died in Congress while the nation was in the midst of war in Iraq and Afghanistan.
Additionally, Weiner has a heightened regard for Congress that the historical record simply does not support, especially regarding the idea that Congress is capable of “surgical suppleness.” One need only think of the suppleness of Obamacare, or of an omnibus spending bill, or of “No Child Left Behind.” A few years ago a Speaker of the House proclaimed that a major piece of legislation had to be passed before the members of the House of Representatives could understand what was in it. Suppleness aside, it is apparent that Congress retains ample power over the domestic agenda of the United States, whether in times of war or in peace.
I would also differ with Greg regarding the use of presidential signing statements, which Weiner sees as yet another example of executive “arrogance toward the legislature” and an “outrageous” example of an “implicit doctrine of presidential infallibility.” Signing statements are in fact an attempt to defend the rule of law. The INS v. Chada (1983) case struck down the practice of legislative vetoes. Yet as of 2005, more than 400 new legislative vetoes had been enacted since Chada, and signing statements are an important tool in checking this ongoing congressional defiance of the rule of law. Congress simply cannot infringe on the president’s constitutionally mandated powers – the language of the Constitution is quite precise: “the executive power shall be vested in a president of the United States of America.”
Weiner acknowledges Congress’s wounds are self-inflicted, that they are at times “pathetically compliant.” We now have the worst of both worlds: a compliant Congress that refuses to carry out its constitutional duties (see, for example, the four years that passed without the Senate producing a budget) yet it is quick to pounce on presidential missteps (see the Iraq War, for example, which had bipartisan support until the going got tough; or the use of waterboarding against al Qaeda terrorists, where members of Congress privately expressed support for these extraordinary measures until The New York Times went public with the story). Weiner overstates his case once again when he observes that “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.” There are legitimate moral and legal objections to waterboarding three high ranking members of al Qaeda, and detaining a similar number of American citizens without trial, but does this really constitute a threat to western traditions dating back to the Magna Carta? Certainly Jefferson, Lincoln, and FDR believed that the president possessed such powers in times of an emergency. While the war on terror is not equivalent to the Civil War or the Second World War it is the result of the greatest single day loss of life since the Battle of Antietam. Hindsight is always 20-20, as the cliché tells us, but when President Bush was told that al Qaeda had smuggled a nuclear weapon into the United States, Bush’s order to make sure “this [9/11] doesn’t happen again” – thus opening the door to “enhanced interrogation techniques” and other extraordinary measures – seems like a prudential act.
Greg Weiner makes a strong case for the virtues of legislative deliberation and prudence. But he overstates his case by ignoring the virtues of the Hamiltonian tradition. Americans tend to focus exclusively on Madison’s writings in Federalist 10 and 51, which emphasize the “checking” or “negative” implications of a system of divided power. They ignore Alexander Hamilton’s writings which offer a more “positive” interpretation of separation of powers, one that focuses on the strengths of each branch of government and allows its office holders “endowed with talent and virtue” to act in ways that that the constricted powers of the Articles of Confederation did not permit. In the words of Harvey C. Mansfield, Jr., separation of powers “gives opportunity to virtue” and allows for “greatness” to emerge, vital qualities in a time of war or national emergency. Presidential leadership is especially critical when one considers that the House of Representatives has inserted itself into foreign policy matters in a manner at odds with the intentions of the framers (a House Intelligence Committee on par with its Senate counterpart; a House Foreign Affairs committee with authority almost on par with its Senate counterpart). These House committees are unconstitutional, if one takes the Constitution seriously. To make matters worse, we now have a Senate that acts like the House, thanks to the direct election of US Senators and other progressive reforms.
Perhaps the healthiest step toward restoring balance in the American system and preserving liberty and security would be for Congress to begin to “heal thyself.”