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The Once and Future King

Welcome back to crown government. 

By From the April 2014 issue

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Gutzon Borglum knew what he was doing when he picked the site for the future Mount Rushmore. The area’s 1.6 billion-year-old granite is thought to erode only a single inch every ten millennia. Barring a detonation at the hands of our jihadist foes, the faces of Washington, Jefferson, Lincoln, and Teddy Roosevelt will still look serenely down at future visitors of South Dakota’s Black Hills when the America of the twentieth century is as remote as we are from the pharaoh whom built the first pyramid.

If only our Constitution had been carved out of the same sturdy material. American liberty has not been eroding so much as crumbling away these last five years. Increasingly burdensome and intrusive legislation, persecution (and sometimes prosecution) of political enemies by the executive branch, a swelling national debt: It’s been a bad few years, to say the least. But the biggest threat to the bedrock of our freedom is the presidency itself, the crown government of the almighty chief executive, which is completely at odds with the republican principles of our Founders. 

Forget what your high-school civics teacher told you: Since our founding, America has actually had three different constitutions. The first, the one that the Framers gave us, established congressional government: The House of Representatives, voting by state, would almost always choose the president, and the executive branch was exceedingly lean—starved, even. Then we had so-called Jacksonian democracy: The president, chosen by the people, enjoyed the legitimacy of the only person elected by the nation as a whole. This was the constitution of separation of powers, in which the legislative and executive branches shared the responsibility for governing, and in which a strong president might be forced to bend before an implacable Congress. 

We now live under a third constitution, one that enshrines an all-powerful executive. The president has slipped off the petty, outdated constraints of the past. He makes and unmakes laws and spends trillions of dollars without the consent of Congress. Even the gravest of decisions, whether to commit our country to war, he makes alone. His ability to reward friends and punish enemies exceeds anything we’ve seen before. He is rex quondam, rex futurus—the once and future king. And all of this seems irreversible. 

The arc of American government has bent from monarch to monarch, from George III to Obama. To be sure, I’m not the first person to detect a whiff of royal perfume amid the effluvium of our executive branch. Liberals such as Arthur M. Schlesinger, Jr., who drooled over Jack Kennedy but excoriated Richard Nixon, have always been quick to decry executive overreach by Republican presidents, even as they celebrated the assertion of presidential power when their fellow slept at 1600 Pennsylvania Avenue. And, indeed, the role of the president has been expanding, and that of Congress receding, for many years now. But we’ve seen a clear move recently toward a new conception of our nation’s highest office, and of government itself.

The president now enjoys the power to make law. Never mind that this is inconsistent with the separation of powers, that Article I, Section 1 of the Constitution specifies that “All legislative Powers herein granted shall be vested in a Congress of the United States.”

One might have expected the speaker of the House or the leaders of the Senate to defend their domain. They have not. In fact, Congress has done more than just quietly acquiesce to its own obsolescence. It has aided and abetted the expansion of presidential power by drafting major legislation in the most general terms, allowing the details to be penciled in by federal agencies under executive supervision. This can be seen as a grant to the president of legislative powers, the regal prerogative the Framers so feared. Consider the Wall Street Reform and Consumer Protection Act of 2010. Dodd-Frank, as it is known to most of us, created two brand new federal agencies, the Financial Stability Oversight Council and the Consumer Financial Protection Bureau. The former has the authority to decide which banks are Too Big to Fail (“systematically important,” in official parlance) and which lending terms are “unfair, deceptive, or abusive.” The latter, meanwhile, is effectively immune from congressional oversight because its $400 million-plus budget comes straight from the Federal Reserve. In the case of Dodd-Frank, Congress shipped its constitutional authority down the river.

The president can also rule by executive order. As Paul Begala once put it, “Stroke of the pen…law of the land. Kind of cool.” In addition, the president enjoys a broad power to decide how we’re governed by his ability to appoint his acolytes to head the regulatory agencies.

Apart from the ability to make law by diktat, a modern president enjoys the power to disregard legislation that he dislikes. The Constitution gives a president the power to veto a bill, subject to a two-thirds override by both houses of Congress. In recent years, however, presidents have devised a tactic that constitutes a form of non-reviewable veto: They might simply sign the bill into law and then decline to enforce its provisions. This practice has come to a head over the last ten years with “signing statements,” in which a president, without vetoing a bill, states that he does not consider himself bound by it.

In principle, a president’s refusal to enforce an unconstitutional act is not a shocking exercise of executive power. Were Congress to pass a law abridging free exercise of religion, for example, no one would expect the president to enforce it while waiting for the Supreme Court to strike it down. Obama, however, has begun to negate laws without asserting a constitutional basis for doing so. He has also refused to enforce laws passed by prior Congresses (as opposed to new laws, which are the subject of signing statements). For example, the administration released a policy directive that relaxed the work requirements at the heart of the 1996 welfare reform law. Legislators foresaw the possibility that future presidents might try to gut the workfare requirements, and therefore the statute was written specifically to state that they are non-waivable. But that didn’t stop Obama. His expanded veto trenched on the spirit, and seemingly the letter, of the major legislative initiative of the Clinton presidency. 

Obama also did an end run around Congress after it declined to enact the so-called DREAM Act. Unable to pass the program legislatively (which is to say, constitutionally), he issued an executive order allowing an estimated 1.7 million young undocumented immigrants to live and work in the United States. Obama did more than decline to enforce the old law; by fiat he replaced it with a new one. The president has always had a bit of wiggle room to exercise discretion when deciding how and when to enforce the law of the land. But completely disregarding legislation to create new law out of thin air, and in the face of congressional opposition, is quite another thing entirely. When, like a haughty French gourmand, the president can turn up his nose at any law he dislikes and order up something else from the executive kitchen, his veto power is virtually unlimited.

Then there are the president’s expanded spending powers. The Framers had the quaint idea that bills involving outlays would originate in the House of Representatives. But that’s so 1787! Because government has ballooned since those halcyon days, congressional appropriations have become long on generalities and short on earmarks. This conveniently allows the president to decide where the spoils go—to, say, unions and green energy companies during the TARP bailout.

The latest attempt to rein in the president’s power to unilaterally commit our armed forces, the War Powers Resolution of 1973, is largely a dead letter. On assuming office, the president is handed control of the fruits of 41 percent of the world’s military spending. This translates into immense political power, which he might abuse by, for instance, launching a war to distract attention from scandal or economic distress at home. We haven’t seen that from Obama, who has simply employed his perogative to administer a thumb in the eye of old allies such as Britain and Canada and new friends such as Poland. But America has waged “wag-the-dog” wars in the recent past. Should a president be found in bed with an intern, should the economy falter—why then, watch your step, Costa Bananas!

And don’t forget about the the criminalization of political dissent. As they say in Latin America, “For my friends, everything; for my enemies, the LAW!” If an American president wanted to strengthen his hand, his first step might be to employ the federal criminal justice system for political ends. U.S. attorneys are political appointees, and it cannot be beyond the ingenuity of a power-hungry leader to put a couple of partisan allies in office and let nature take its course. One saw a hint of this in 2012, when Obama’s deputy campaign manager suggested that Romney had committed a felony. Whether he had done so became a political issue, but the degradation of American political discourse passed mostly without remark.

It rather looks as though that Enemy of People, Mitt Romney, will escape the jail time he so richly deserves. With other thought criminals, however, Eric Holder’s Justice Department may be less forgiving. Dinesh D’Souza has long annoyed progressives, and we must applaud the felony charges brought against him for campaign finance naughtiness. Since it’s always easy, in our nightmare legal system, to find a person guilty, the only question is why this took so long.

That’s not to say future presidents will throw opposition leaders into jail, as they used to do in Ukraine—at least not anytime soon. It is not, however, beyond the realm of imagination that, say, investigative magazines, right-of-center press lords, and major donors to opposition causes will find themselves under investigation—if only because all that happens today. IRS tax audits, EPA and campaign finance prosecutions…the arm of the law is long and flexible.

How did this happen? No great mystery there. Power has been centralized around the heads of government in all modern democracies. Authority naturally gravitates from disorganized groups—Congress—to a single person. The group must struggle to get its act together; not so the single person. Recall the recent stand-offs between Obama and the House over the debt ceiling. On one side was Obama, claiming that he alone spoke for the entire country as a whole; on the other was John Boehner of West Chester, Ohio, and a fractious bunch of congressmen. It wasn’t much of a contest.

Second, the regulatory state cannot exist without a large bureaucracy, which answers primarily to the president. The legislative branch must delegate rule-making authority to regulators whose codes are so various and extensive that oversight is nigh impossible. This leaves matters to the executive, which hires the regulators, promotes and demotes them, and generally tells them what to do. 

Third, political campaigns have been transformed by the media, which makes rock stars of presidents. At one time it was thought that the rise of new media would prevent a president from amassing excessive personal power. That hasn’t happened. Instead, the White House is now a news outfit in its own right, complete with photographers and videographers. It need not rely on print newspapers or the television networks to get its message out. It need no longer put the president at the mercy of probing reporters, preferring instead teleprompters and softball questions from People magazine. The fawning reporter is rewarded with access; hostile would-be newshounds are frozen out. And so we are on the verge of what George Mason once called an “elective monarchy.”

Such concentrations of power often surround prime ministers in parliamentary governments, but they are much more dangerous in presidential regimes. For one thing, the American president is head of state as well as head of government. He is the symbol of the entire country, the figure with whom every patriot identifies, at least theoretically. A person who moves to America, as I did, must learn to suppress his gag reflex when reading a Peggy Noonan op-ed on the sublimity of a State of the Union Address, or listening to an MSNBC talking head
bloviate about our godlike president. In parliamentary regimes, politicians are comical figures. If there’s a national tragedy, we don’t wait for a speech from the prime minister. Oh sure, we get misty-eyed over jug-eared princes, but they haven’t been able to hurt us since 1832. They’re not going to spend us into bankruptcy or audit us.

Further, presidential regimes lack the means to discipline an overreaching head of government. In America, scandals are transitory. Benghazi? “What difference at this point does it make?” asked an angry Hillary Clinton. She had a point. After all, eight months had elapsed. In a parliamentary system, the prime minister is expected to meet the House on a daily basis. And the decision of what is to be debated lies, crucially, with the Opposition, which can, and frequently does, decide to prolong argument just where the government is weakest. “No better method,” observed Harold Laski, “has ever been devised for keeping administration up to the mark.” 

Thus, in a parliamentary government, a successful politician must be informed, quick on his feet, and, perhaps especially, witty. In Canada he must be all of these things in both English and French. The grandiose (Obama), the verbally clumsy (George W. Bush and Obama again), and the thin-skinned (Nixon and Obama again) find themselves either excluded or laughed at. When Obama addressed the Indian parliament, its MPs did double-takes on seeing his teleprompter.

Then there are non-confidence motions, which can turf out a parliamentary government on a simple majority in the House of Commons, and party leadership votes like the one that ended Margaret Thatcher’s career. All we have here in the United States is the Big Bertha of impeachment and removal from office—which never rears its head unless the president is from one party and the House and two-thirds of the Senate from another. Here’s a piece of trivia: Only one president in American history, Andrew Johnson in 1868, has ever faced impeachment by such a Congress. (Republicans only controlled 55 votes—not two-thirds—in the Senate in 1998, and the 45 Democrats voted in lockset to acquit Bill Clinton.) Yet even then, the ruling party could not muster the votes in the Senate to toss Johnson out of office. The requirement of a two-thirds supermajority in that chamber was snuck in at the last moment at the 1787 constitutional convention, elicited no discussion, and transformed the shape of American politics. It should not be so hard to give a president the boot. I’d like to see it done often, for high crimes and misdemeanors, for stupidity, for arrogance, or just for the spirit of the thing.

Does all this mean that American republic is headed down the road toward Argentina and the loss of our political freedom? We’ve had a pretty good run of this democracy thing of ours—225 years and counting—with its neverending cycle of campaigns, votes, initiatives, referendums, ballot measures, public meetings. If anything, we’ve been democratic to a fault these last two centuries or so. Will things be the same in forty, or even twenty, years?

If future leaders assert still more extra-Constitutional power, it’s hard to imagine the monarchists in the media having much to say about it. When George W. Bush was in office, the media’s ever-sensitive antennas bristled at the slightest hint of presidential abuse. Since then, all those policies have continued, accelerated even, with scarcely a peep from the monarchists in the media. So much for the fourth estate.

There are the courts, of course, but they’ve been largely silent on the expansion of presidential power, except at the edges (sayonara, recess appointments). Besides, strong presidents enjoy a largely unfettered power to pick judges, the more so since the filibuster has been eliminated for most appointees. Even Republican control of the Senate wouldn’t make much of a difference: There’s a strong convention to defer to the president on appointments, and Democratic appointees tend to rule in lockstep once they’re on the bench.

That leaves the voters, who in quadrennial elections provide the principal check on presidential overreach. Unlike media elites and ivory tower types (your tenured correspondent notwithstanding), the American electorate is capable of changing its mind occasionally. Would it be willing to rein in a dictatorial president? Some think not—there’s an academic literature on how ill-informed the ordinary American voter is. I might be inclined to agree with such findings did I not know how ill-informed American academics are. Besides, political parties exist to cure the information deficit. For lower taxes and public spending, vote Republican—unless the party breaches its promises, in which case vote Democratic.

But then again, the electorate has changed. There’s the barbarian invasion of millennials, who’ve been taught to hold traditional American ideals in contempt. And there are the new Democratic voters admitted under the 1965 Immigration Reform Act. These folks may have sterling personal virtues, but they appear to have brought the principles of their former constitutions with them. It’s hard to imagine that on arriving here any of them said, “Ah, finally, a separation of powers!”

When conservatives bemoan the state of our government, they’re apt to float the possibility of a “ConCon”—a constitutional convention under Article V of the Constitution. Mind you, such talk makes some uncomfortable. What kind of Frankenstein’s monster might emerge from such a laboratory? We could end up completely scrapping the Constitution, at least as we now know it.

That’s just what I’d be hoping for. Things could hardly get worse, and they might just get better—a whole lot better, in fact. If I’m going to dream, let it be in Technicolor. So here goes.

First, the vice president should be the person with the second highest number of votes in the electoral college. That’s only fair. It’s what the Framers wanted, before the Twelfth Amendment was ratified in 1804, and it would nicely eliminate future embarrassments along the lines of Joe Biden. Second, let Congress choose the president. The Framers thought that this is what would nearly always happen anyway, and it’s what Madison wanted. While we’re at it, let’s eliminate super-majority requirement to remove a president. Gouverneur Morris snuck that one past the delegates while they were snoozing. Third, get rid of the Senate. It’s not the “world’s greatest deliberative body.” It doesn’t even deliberate. All it does is license gasbags and produce gridlock. Believe me, we’re not going to miss it.

Put it all together and what have you got? An end to one-man rule and the reign of good King Obama, and a return to genuine constitutional government and the Framers’ Constitution. 

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About the Author

F.H. Buckley is Foundation Professor at the George Mason University School of Law and author of The Once and Future King: The Rise of Crown Government in America.