Eleven Reasons Why Presidential Power Inevitably Expands and Why IT Matters

ELEVEN REASONS WHY PRESIDENTIAL POWER INEVITABLY EXPANDS AND WHY IT MATTERS INTRODUCTION When I teach presidential power, the first thing I ask my students is to imagine a different President in office. If they support the current President and believe those who oppose him are doing so for partisan or otherwise illegitimate reasons, they should visualize a President whom they completely distrust. Conversely, if they dislike the current President, they should conceive of the President in power as someone they support and that those opposing him are acting illegitimately. This exercise is helpful, I believe, for focusing attention on the underlying constitutional issues rather than upon the wisdom, or lack thereof, of a particular President’s policies. Nevertheless, the exercise may be harder than it seems. Views as to whether or not an exercise of presidential power is legitimate tend to be based less upon legal abstractions than upon perceptions of the particular President in power. Someone supporting a particular President, for example, is likely to believe that Congress should not have the power to interfere with the President’s unilateral decision to send troops into armed conflict or that Congress should not have the authority to demand the President turn over documents to an oversight committee. Conversely, someone who believes a President’s agenda is improperly motivated or ill-advised is more likely to support constitutional principles that provide significant checks and balances upon the President’s exercise of power. In this way, views on presidential power tend to be more variable than views on other constitutional issues because they intuitively relate to who is in power in a way that views on other controversial constitutional issues – such as abortion, free speech, or freedom of religion – do not.1 There was, for example, a remarkable sea change in Washington, D.C., on January 20, 2001, as to who supported, and who opposed, a broad constitutional definition of presidential power.2 And if party control of the Presidency changes in the next election, I suspect we will witness a similar sea change on January 20, 2009. For this reason, the subject of this Symposium on presidential power is well timed. Because the question of who will hold the Presidency after the next election is so much in doubt, this is the perfect opportunity to examine the nature of presidential power as an abstract matter, rather than as a criticism or as an apologia of a specific President’s actions. This is what I intend to do in the following Essay. Specifically, I contend that the power of the Presidency has been expanding since the Founding, and that we need to consider the implications of this expansion within the constitutional structure of separation of powers, no matter which party controls the White House. Part I of this Essay makes the descriptive case by briefly canvassing a series of factors that have had, and continue to have, the effect of expanding presidential power. Part II suggests this expansion in presidential power has created a constitutional imbalance between the executive and legislative branches, calling into doubt the continued efficacy of the structure of separation of powers set forth by the Framers. Part III then offers some suggestions as to how this power imbalance can be alleviated, but it does not present a silver bullet solution. Because many, if not all, the factors that have led to increased presidential power are the products of inevitable social and technological change, they are not easily remedied.3 Thus, the Essay ends with only the modest conclusion that regardless of who wins the Presidency, it is critical that those on both sides of the aisle work to assure that the growth in presidential power is at least checked, if not reversed. I. A. THE EXPANSION IN PRESIDENTIAL POWER Background The notion that presidential power has expanded exponentially since the time of the framing is, of course, uncontestable.4 The extent of that growth, however, is not always fully appreciated. At the time of the framing, for example, Madison, among others, believed the legislature was the most powerful branch,5 and for that reason he supported the creation of a bicameral legislature.6 Congress needed to be divided into two branches so that it would not overwhelm the other branches.7 Correspondingly, the executive needed to be unitary so that it would not be weakened in its battles with the legislature.8 Two hundred years later, any suggestion that Congress is twice as powerful as the executive would be deemed ludicrous.9 Particularly in the areas of national security and foreign affairs,10 the Presidency has become the far more powerful branch. 11 In 2006, for example, a new Congress was elected based in large part on the desire of the American people to get out of an unpopular war.12 Yet, the President was able to use his authority to continually out maneuver the newly-elected Congress and pursue a war that even many of those in his own party opposed.13 It would be a mistake, however, to assume that the expansion of presidential power vis-à-vis the other branches is only a recent development.14 Justice Jackson recognized this trend over fifty years ago when he wrote in Youngstown Sheet & Tube Co. v. Sawyer:15 [I]t is relevant to note the gap that exists between the President’s paper powers and his real powers. The Constitution does not disclose the measure of the actual controls wielded by the modern presidential office. That instrument must be understood as an Eighteenth-Century sketch of a government hoped for, not as a blueprint of the Government that is. Vast accretions of federal power, eroded from that reserved by the States, have magnified the scope of presidential activity. Subtle shifts take place in the centers of real power that do not show on the face of the Constitution. Executive power has the advantage of concentration in a single head in whose choice the whole Nation has a part, making him the focus of public hopes and expectations. In drama, magnitude and finality his decisions so far overshadow any others that almost alone he fills the public eye and ear. No other personality in public life can begin to compete with him in access to the public mind through modern methods of communications. By his prestige as head of state and his influence upon public opinion he exerts a leverage upon those who are supposed to check and balance his power which often cancels their effectiveness.16 Notably, the reasons Justice Jackson offered as to why power has concentrated in the executive go far beyond the ambitions and personalities of those who have held the office.17 Rather, they are the inevitable results of technological, social, and legal changes encompassing a variety of factors.18 These factors include: 1) the constitutional indeterminacy of presidential power, 2) the precedential effects of executive branch action, 3) the role of executive-branch lawyering 4) the expansion of the federal executive branch, 5) presidential control of the administrative state, 6) presidential access to and control of information, 7) the inter-relationship between the media and the Presidency, 8) the role of the Presidency in popular culture, 9) military and intelligence capabilities, 10) the need for the government to act quickly, and 11) the rise of a strong two-party system in which party loyalty trumps institutional prerogative. I shall discuss each of these factors in turn. B. Reasons Why Presidential Power Continues to Expand 1. The Constitutional Indeterminacy of the Presidency The first and perhaps overarching reason underlying the growth of presidential power is that the constitutional text on the subject is notoriously unspecific, allowing as one writer maintains, for the office “to grow with the developing nation.”19 Unlike Article I, which sets forth the specific powers granted to Congress,20 the key provisions of Article II that grant authority to the President are written in indeterminate terms such as “executive power,”21 or the duty “to take care that the laws be faithfully executed.”22 Moreover, unlike the other branches, the Presidency has consistently been deemed to possess significant inherent powers.23 Thus, many of the President’s recognized powers, such as the authority to act in times of national emergency24 or the right to keep advice from subordinates confidential,25 are nowhere mentioned in the Constitution itself. In addition, case law on presidential power is underdeveloped. Unlike the many precedents addressing Congressional26 or federal judicial27 power, there are remarkably few Supreme Court cases analyzing presidential power. And the leading case on the subject, Youngstown Sheet & Tube Co. v. Sawyer,28 is known less for its majority opinion than for its concurrence by Justice Jackson, an opinion primarily celebrated for its rather less-than-definitive announcement that much of presidential power exists in a “zone of twilight.”29 Accordingly, the question whether a President has exceeded her authority is seldom immediately obvious because the powers of the office are so openended.30 This fluidity in definition, in turn, allows presidential power to readily expand when factors such as national crisis, military action, or other matters of expedience call for its exercise.31 Additionally, such fluidity allows political expectations to affect public perceptions of the presidential office in a manner that can lead to expanded notions of the office’s power.32 This perception of expanded powers, in turn, can then lead to the perceived legitimacy of the President actually exercising those powers. Without direct prohibitions to the contrary, expectations easily translate into political reality.33 2. The Precedential Effects of Executive Branch Action Presidential power also inevitably expands because of the way executive branch precedent is used to support later exercises of power.34 Many of the defenders of broad presidential power cite historical examples, such as President Lincoln’s suspension of habeas corpus, as authority for the position that Presidents have considerable powers in times of war and national emergency.35 Their position is straight-forward. The use of such powers by previous Presidents stands as authority for a current or future President to engage in similar actions.36 Such arguments have considerable force, but they also create a one-way ratchet in favor of expanding the power of the presidency. The fact is that every President but Lincoln did not suspend habeas corpus. But it is a President’s action in using power, rather than forsaking its use, that has the precedential significance.37 In this manner, every extraordinary use of power by one President expands the availability of executive branch power for use by future Presidents. 3. The Role of Executive Branch Lawyering The expansion of presidential power is also a product of executive branch lawyering. Because of justiciability limitations, many of the questions surrounding the scope of presidential power, such as war powers,38 never reach the courts.39 In these circumstances, the Department of Justice (DOJ) and its Office of Legal Counsel (OLC), the division that is charged with advising the President as to the scope of his or her powers, are the final legal authorities opining on these issues.40 This means, in effect, that the executive branch is the final judge of its own authority. Not surprisingly, this dynamic leads to broad interpretations of executive power for a variety of reasons.41 To begin with, the President, simply by his power of appointment, can assure that his Attorney General views the primary duty of the office is to empower the administration and not to some abstract, dispassionate view of the law.42 President Kennedy selected his brother to be Attorney General, President Nixon his campaign manager. Neither appointment, I suspect, was based on the desire to have a recalcitrant DOJ. Moreover, even when the President chooses a person renowned for her independence, the pressures to bend to the President’s will are considerable. Not only does the Attorney General act under the threat of removal, but she is likely to feel beholden to the President and bound, at least in part, by personal loyalty.43 Some might argue that even if the Attorney General may be overly susceptible to the influence of the President who appointed her, the same should not be true of the career legal staff of the DOJ, many of whom see their role as upholding the Constitution rather than implementing any President’s specific agenda. But the ability of the line lawyers at DOJ to effectively check executive branch power may be more illusory than real. First, the lawyers in the DOJ are likely to have some disposition in favor of the government if only because their clients are the President and the executive branch.44 Second, those DOJ lawyers who are hired for their ideological and political support of the President will likely have little inclination to oppose the President’s position in any case. Third, as a recent instance at DOJ demonstrates, the President’s political appointees can always remove or redeploy staff attorneys if they find them too independent.45 Fourth, even if some staff lawyers have initial resistance to the President’s position, the internal pressures created by so-called “group-think” may eventually take over.46 The ability of a staff attorney to withstand the pressures of her peers in adhering to legal principle in the face of arguments based on public safety or national security can often be tenuous, particularly when the result of nay-saying may lead the lawyer to exile in a less attractive assignment. To be sure, the DOJ has, at times, viewed itself as a truly independent voice. Attorney General Edward Bates, appointed by Lincoln reportedly stated that it was his duty “to uphold the Law and to resist all encroachments, from whatever quarter of mere will and power.”47 Robert H. Jackson, in contrast, looking back from the perch of a Supreme Court Justice, saw his role as the Attorney General during the Roosevelt Administration otherwise, describing in one case the opinion he offered as Attorney General as “partisan advocacy.”48 But whatever the views of those individuals holding the position of Attorney General, those views are, at best, only of secondary importance. Far more important are the views of the Presidents who appoint the Attorneys General, and in this respect the positions of the occupants of the White House have been consistent. As one study states, “[t]he President expects his Attorney General . . . to be his advocate rather than an impartial arbiter, a judge of the legality of his action.”49 Under such a system, the pressure for DOJ to develop expansive interpretations of presidential power is inexorable. 4. The Growth of the Executive Branch A further reason for the growth of presidential power relates to the expansion of the federal executive branch. The massive federal bureaucracy existing today extends far beyond what the framers likely imagined.50 And significantly, for our purposes, the head of that bureaucracy is the President who thereby has all the capabilities and powers of the administrative state at his disposal.51 The substantive scope of his authority, moreover, is breathtaking.52 The President leads a federal bureaucracy that, among other powers, sets pollution standards for private industry, regulates labor relations, creates food and product safety standards, manages the nation’s lands and natural resources, enforces the federal criminal law, oversees the banking industry, and governs a host of other activities too numerous to mention.53 This may not have been the way it was intended. As Gary Lawson has written, it is questionable whether the delegation of powers to the executive, upon which the administrative state is based, is consistent with the original understanding.54 Yet whether consistent with the Framers’ design or not, the expansion of the federal bureaucracy necessarily invests the Presidency with enormous powers.55 And as the federal bureaucracy continues to expand, so does the power of the Presidency.56 Indeed, even if Congress were able to limit the President’s direct control over the administrative state (a matter that will be discussed in the next Subsection), the President’s powers stemming from an expanded federal bureaucracy would still increase, if only through his powers of appointment. 5. Presidential Control of the Administrative State Related to the expansion of the federal administrative bureaucracy is the increased ability of the president to control that bureaucracy. For many years, the federal bureaucracy stood literally as a “fourth branch of government,” enjoying considerable independence from both Congress and the Presidency.57 Recently, however, as Deans Harold Krent58 and Elena Kagan have stated,59 Presidents are beginning to control the federal bureaucracy for their own political agendas in a manner that has not occurred previously. Krent demonstrates how President George W. Bush has been able to circumvent congressional efforts to delegate decision making to office holders and to retain such authority for himself,60 while Kagan shows how President Clinton was able to use directives and other measures to more effectively control and claim ownership of agency action.61 The Clinton and Bush Presidencies will likely serve as lessons to future administrations, suggesting that increased control of the federal bureaucracy is yet another way that presidential power will continue to expand. 6. Presidential Access to and Control of Information If, “[i]n the information age, information is power”62 then most of that power rests with the executive. Because of its vast resources, the executive branch has far greater access to information than do the co-branches of government.63 In addition, the executive branch has far greater ability and expertise to gather, examine, and cull that information than do the transitory legislative staffs in the Congress. Congress, for example, does not have at its disposal the information gathering capabilities of the intelligence agencies or the technical expertise of the military in determining when there is a threat to national security.64 Instead, it must rely on the executive for that appraisal and therefore must continually negotiate with the executive from a position of weakness and dependence.65 Moreover, this disparity in access and control of information is only likely to worsen as the world becomes more complex, because complexity necessarily requires increasingly sophisticated methods of information collection, analysis, distillation, and dissemination. And because only the executive branch is likely to have the expertise and the resources to perform these functions, its relative powers will again increase. 7. The Media and the Presidency As Justice Jackson recognized in Youngstown, the power of the Presidency has also been magnified by the nature of media coverage. This coverage, which focuses on the President as the center of national power,66 has only increased since Jackson’s day as the dominance of television has increasingly identified the image of the nation with the image of the particular President holding office.67 The effects of this image are substantial. Because the President is seen as speaking for the nation, the Presidency is imbued with a unique credibility. The President thereby holds an immediate and substantial advantage in any political confrontation.68 Additionally, unlike the Congress or the Court, the President is uniquely able to demand the attention of the media and, in that way, can influence the Nation’s political agenda to an extent that no other individual, or institution, can even approximate. 8. The Presidency in Popular Culture Relatedly, the role of the institution of the President in popular culture also enhances presidential power. As numerous commentators have noted, the public often perceives national power as directly related to the power of the incumbent President.69 For that reason, the citizenry tends to rally behind the President because he is seen as standing for the country.70 This is why the citizenry tends to become invested in a President as soon as he is elected, and is why his popularity always rises immediately after an election.71 Of course, it may be true that the perception of the President as all-powerful can work to his detriment in that he can be held responsible, sometimes unfairly, for matters that are beyond his control.72 But the fact that the President is held responsible in these circumstances is a testament to his perceived power and authority. To be sure, the role of public culture in enhancing the power of the presidency is not exclusively a modern phenomenon. Efforts were made to create a popular mythology surrounding the President as far back as President Washington.73 But as the political and popular culture surrounding the Presidency continue to coalesce, a sitting President’s ability to use popular culture for political benefit is seemingly enhanced as well.74 9. Military and Intelligence Capabilities The President’s power is also enhanced by the vast military and intelligence capabilities under his command. In his roles as Commander-in-Chief and head of the Executive Branch, the President directly controls the most powerful military in the world and directs clandestine agencies such as the Central Intelligence Agency and National Security Agency.75 That control provides the President with immensely effective, non-transparent capabilities to further his political agenda and/or diminish the political abilities of his opponents. 76 Whether a President would cynically use such power solely for his political advantage has, of course, been the subject of political thrillers and the occasional political attack. President Clinton, for one, was accused of ordering the bombing of terrorist bases in Afghanistan to distract the nation from the Lewinsky scandal,77 and President Nixon purportedly used the Federal Bureau of Investigation to investigate his political enemies.78 But regardless whether such abuses actually occurred, there is no doubt that control of covert agencies provides ample opportunity for political mischief, particularly since the inherently secretive nature of these agencies means their actions often are hidden from public view. And as the capabilities of these agencies increase through technological advances in surveillance and other methods of investigation, so does the power of the President. 10. The Need for Government To Act Quickly Presidential power also has increased because of the exigencies of decision making in the modern world. At the time of the founding, it would take weeks, if not months, for a foreign government to attack American soil. In the twentyfirst century, the weapons of war take only seconds to arrive. The increased speed of warfare necessarily vests power in the institution that is able to respond the fastest – the presidency, not the Congress.79 Consequently, the President has unparalleled ability to direct the nation’s political agenda.80 The power that comes with being the first to act, moreover, does not end when the immediate emergency is over. Decisions made in times of emergency are not easily reversed; this is particularly true in the context of armed conflict. The President’s commitment of troops inevitably creates a “rally round the flag” reaction that reinforces the initial decision.81 As Vietnam and now Iraq have shown, Congress is likely to be very slow in second guessing a President’s decision that places soldiers’ lives in harm’s way. That Congress would use its powers (as opposed to its rhetoric) to directly confront the President by cutting off military appropriations seems fanciful. 11. The Inceasingly Polarized Two-Party System The final reason why presidential power has increased relates to the rise of a highly polarized two-party system in which party loyalty trumps institutional concerns. The beginnings of this polarization can be traced to the enactment of the Civil Rights Act of 1964.82 The passage of that Act ended an era that had effectively been a three-party system in the United States: the northern Democrats, the southern Democrats, and the Republicans. During this “threeparty” era, members of Congress needed to work across party lines to develop working majorities on particular issues.83 Their political fortunes and reputations, therefore, were closely tied to the success of Congress as an institution. In contrast, in the highly polarized two-party system currently dominating national politics, a member’s political success depends more on the fortunes of her particular party than on the stature of Congress. This means members of Congress have a greater personal interest in the President’s success as leader of their party than they have in Congress as an institution. Correspondingly, because the President is the leader of his or her political party, the President can expect greater loyalty and discipline from party members than occurred in previous eras. The result of this is that when the President’s party controls the Congress, he or she can proceed virtually uncontested.84 Consequently, in an era of highly polarized parties, there no longer exists the constitutional balance purportedly fostered by separation of powers. Rather, the constitutional balance becomes what Daryl Levinson and Richard Pildes term a “separation of parties.”85 The problem, of course, is that separation of parties serves as no balance at all when both the Presidency and the Congress are controlled by the same party. In those circumstances, the power of the Presidency is effectively unchecked. II. A CONSTITUTIONAL IMBALANCE? The expansion of presidential power is only part of the story. Because the constitutional commitment to separation of powers depends on a balance between the executive and legislative branches,86 the related question that must be addressed is how the expansion of presidential power relates to the powers of the Congress. In this respect, it does not appear that any expansion in the powers of Congress have kept pace with the increasing power of the President.87 At least two significant changes since the Founding have worked to Congress’s advantage in its battles with the Presidency. First, the Supreme Court has recognized Congress’s non-textual power to investigate and oversee the executive branch.88 This power is significant and, indeed, has at times been enormously effective in uncovering executive branch malfeasance.89 But the power to investigate has not, and likely cannot, fully compensate for the power the Presidency enjoys in controlling information. After all, Congress’s oversight authority is not self-executing, and, as the experience of both the Clinton and Bush II presidencies have shown, frequently can be frustrated by a combative President. Moreover, even if Congress has the political will to force a recalcitrant administration to turn over information, the President’s control over information may be so absolute that Congress does not even know what to ask for.90 How can Congress, for example, request materials relating to a domestic surveillance program if it does not know that such a program exists? Second, Congress’s power vis-à-vis the President has arguably increased because the President is subject to term limits91 while members of Congress are not.92 However, the extent to which this factor significantly alters the balance of powers between the two branches is unclear. After all, a weakened, lame-duck presidency occurs only in the second term and even then can be mitigated by the presence of a Vice President or other obvious heir-apparent. More significantly, outside the Congressional oversight and term limits examples, the other developments affecting inter-branch relationships are either neutral in their effects or favor the Presidency. For example, although Congress also benefits from the expansion of federal power – because it can enact programs that serve member’s constituencies and bring funding to members’ home districts – these benefits do not empower Congress in relation to the Presidency. And while Congress can, as Neal Devins argues, use its funding authority to exert pressure on the President to try and force him or her to run the agencies in accord with its political goals,93 it is still the President who, at the end of the day, controls what the federal bureaucracy does.94 Meanwhile, many of the other factors discussed in the previous Section serve to benefit only the presidency and do so largely at Congress’s expense. The President’s ability to respond quickly to emergencies, for example, leaves Congress out of the decision-making process and makes any subsequent actions by Congress seem untimely and ineffectual.95 The military and covert agencies’ increased capabilities benefit only the President who directs them. The fact that the President can demand media attention and use the public culture to his advantage diminishes the visibility, and therefore the effectiveness, of a Congress that does not have similar tools. The result of all this, I would suggest, is that the system of checks and balances that the Framers envisioned now lacks effective checks and is no longer in balance. The implications of this are serious. The Framers designed a system of separation of powers to combat government excess and abuse and to curb incompetence.96 They also believed that, in the absence of an effective separation-of-powers structure, such ills would inevitably follow. Unfortunately, however, power once taken is not easily surrendered. Regardless of which party nominee wins the 2008 presidential election, therefore, it is unlikely that the imbalance of power that has developed in recent years will be easily remedied. Not using all available power requires a principled restraint that likely extends beyond the capabilities of most politicians. III. RECALIBRATING THE BALANCE: SOME MODEST SUGGESTIONS What then, if anything, can be done to recalibrate the balance of power? After all, short of constitutional amendment,97 it is not clear how powers once exercised can be taken away or seriously constrained. Nevertheless, although the challenge is considerable, let me at least offer a few modest suggestions to start the dialogue. First, I suggest we rethink the role of executive branch precedent. While the actions of previous Presidents might provide some precedential authority for the legality of those actions, executive branch precedents should not be seen as conclusive or even necessarily persuasive in establishing constitutionality. Moreover, other Administrations’ forbearance in not taking similar actions in comparable circumstances also should be considered precedential authority. In this manner, the precedential value accorded previous executive branch actions will no longer favor only expansive notions of presidential power. Second, greater effort should be made to promote DOJ independence. The Senate, regardless of which party is in power, should aggressively exercise its confirmation powers to assure the persons taking the reigns at the DOJ and the OLC are committed to the “arms-length” and not the “client” model of executive branch lawyering.98 Similarly, those assuming key legal positions in the next administration should strive, as much as possible, to be independent by maintaining distance between their legal conclusions and a President’s political agenda.99 Third, greater efforts must be made to combat executive branch secrecy. If a major check on the Presidency is political accountability to the citizenry,100 such accountability cannot occur without transparency. Accordingly, if presidential power is to be curbed, reforms that would minimize secrecy and impose more accountability on the executive branch should be seriously considered. Equally important, executive branch arguments that such reforms are categorically unconstitutional should be rejected.101 Fourth, Congress should pursue its institutional obligations even if so doing might conflict with the political demands of the majority political party. Thus, for example, efforts should be made to ensure vibrant congressional oversight of executive branch action, even when the Presidency and the Congress are in the same party’s control.102 Finally, we all need to resist the temptation, alluded to in the introduction of this Essay, to reflexively support as constitutional the actions of Presidents whom we support. With presidential power still relatively undefined in the case law, the present time may provide the best, if not the last, opportunity to set constitutional limits on the exercise of this power. Achieving this goal should be the responsibility of a President’s allies, as well as her opponents.103 After all, one does not have to be an originalist to accept the proposition that the Framers, having just gone through a revolutionary war to depose a monarch, did not create a constitution that, in the name of national security or foreign policy, would vest unchecked power in the hands of a single individual.