The Fundamental Issue of Presidential Power

president1.jpgNoah Feldman (law, NYU) has a very thoughtful essay in the New York Times Magazine about the rise of presidential power. He writes:

Not since Watergate has the question of presidential power been as salient as it is today. The recent revelation that President George W. Bush ordered secret wiretaps in the United States without judicial approval has set off the latest round of arguments over what the president can and cannot do in the name of his office. Over the past few years, the war on terror has led to the use of executive orders to authorize renditions and the detention of enemy combatants without trial. . . . The limits of presidential power will almost surely be a major topic of discussion during Samuel A. Alito Jr.’s Supreme Court confirmation hearings, which are scheduled to begin this week.

The stakes of the debate could hardly be higher: nothing is more basic to the operation of a constitutional government than the way it allocates power. Yet in an important sense, the debate is already long over. By historical standards, even the Bush administration’s critics subscribe to the idea of a pre-eminent president. Administrative agencies at the president’s command are widely understood to be responsible for everything from disaster relief to drug approval to imposing clean-air standards; and the president can unleash shock and awe on his own initiative. Such “presidentialism” seems completely normal to most Americans, since it is the only arrangement most of us have ever known.

For better or worse, though, this is not the system envisioned by the framers of the Constitution. The framers meant for the legislative branch to be the most important actor in the federal government: Congress was to make the laws and the president was empowered only to execute them. The very essence of a republic was that it would be governed through a deliberative legislature, composed carefully to reflect both popular will and elite limits on that will. The framers would no sooner have been governed by a democratically elected president than by a king who got his job through royal succession.

Feldman goes on to describe how this growth in the power of the president occurred:

The transformation of the United States from a traditional republic to a democratic nation run in large measure by a single executive took a couple of hundred years. Constitutional evolution, like its counterpart in the natural world, has occurred sometimes gradually and sometimes in catastrophic jolts, like those brought about by war or economic crisis. The process has not been entirely linear: presidential power grabs have often been followed by a Congressional backlash, as in the wake of Richard Nixon’s presidency. But the overall winner has unquestionably been the president, who has reached heights of power that the framers would scarcely have imagined.

However, Feldman notes that the Bush Administration has pushed even further beyond these heights. What can be done to keep presidential power in check? That depends upon Congress and the courts. Feldman notes:

For the last four years, a Republican Congress has done almost nothing to rein in the expansion of presidential power. This abdication of responsibility has been even more remarkable than the president’s assumption of new powers.

The issue of presidential power goes to the heart of what kind of nation we will be, what kind of government we want to have. Far too often, I’ve heard discussions of the NSA surveillance issue define the harm as a threat to civil liberties. While it is true that civil liberties are threatened, this isn’t the primary reason why the NSA surveillance is problematic. The NSA surveillance is problematic even if no civil liberties have been violated. The issue is about whether the President can engage in activities that contravene the laws of the nation. It is about whether we should allow the President to do so in secrecy, without any accountability to the people and without any oversight by the other branches of government. The Bush Administration’s theory of presidential power appears to have little articulable limit. In trotting out a theory of presidential power broad enough to encompass the NSA surveillance, the Administration has yet to state how that power is limited, if at all, under its theory.

The Bush Administration has already pushed the fronteirs of presidential power — and has, in my opinion, far exceeded those fronteirs. But what the Administration is claiming it has the power to do goes much further beyond.

The pressing issue, therefore, that we face as a nation is whether we want to maintain some balance between the branches of government or continue to allow the Executive branch to aggrandize power. This is an issue of constitutional magnitude and one that should be of concern to everyone, whether Democrat or Republican. As James Madison wrote in Federalist #51:

In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.

Related Posts:

1. Solove, Hypothetical: What If President Bush Were Correct About His Surveillance Powers?

2. Solove, Beyond His Power: Bush’s Authorization of Warrantless NSA Surveillance

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5 Responses

  1. Dan Solove on the FISA violations

    Great post by GW Law School prof Dan Solove on President Bush’s violations of FISA. He’s quite right: the civil-liberties violations here are

    actually less worrisome than the President’s vision of his own infallibility and

    the executive

  2. Francis Fuller says:

    I argue that Bush needs to assume imperial presidential power, not in order to fight terrorism, but to inhibit any review of his competence. It was not until the week immmediately prior to 9/11 that there was a formal review of the threat from bin Ladin; this review had been requested by Clarke at the time of the inaugauration. Bush has supressed the threat notification contained in the Presidential Daily Brief of August 8th 2001 and the fact that Tenant, and others, sought adminstrative action on this threat.

    Futher to this, there is evidence that Bush was planning for a war in Iraq prior to 9/11. Hussein’s Iraq has no documented connection with bin Laden or Al Queda and 9/11 provides no justification for the Iraqi invasion and occupation.

    My belief is that Iraq constitues an illegal war, one that runs against the conventions of principled states, a war that could only be justified through presidential deception of the American people. Bush has greatly compromised the national security of the United States, has involved the military in “nation building” contrary to his own position pre-election and shows absolute and complete contempt for the constitution he was sworn to uphold.

    Clinton comitted a faux pas and was impeached. Bush constitutes a threat to the American nation. He was re-elected.

  3. Garrett says:

    A very interesting read. Being a youth, I’m only just beginning to question how the world functions. This was very interesting for me read. I’d be interested to read a study of how that gradual change took place.

  4. Bruce says:

    Good points Dan. The Administration’s “inherent authority” argument is almost Jacobean in its scope. Compared with James I, George III wasn’t nearly so extreme, as the Framers were well aware — and yet they still thought him (or, more accurately, the “King-in-Parliament”) dangerous.

    There is another feature of modern society the Framers didn’t anticipate, which is the press as an institutional check on government. Of course, that only works if the information is available, which rigorous enforcement of secrecy laws could thwart.

  5. Herman says:

    Any of you see Professor Laurence Tribe’s great letter to Congressman Conyers about whether Bush’s spying program is legal? It can be found here:

    In addition Professor Tribe and 13 other legal experts (including one former FBI director, Professors Epstein & Stone of the University of Chicago, and Marty Lederman) wrote a much longer letter showing that Bush’s warrantless spying is indeed without warrant. This letter can be found here: