Executive Overreach And Its Effect On The Constitution’s Structural Safeguards Of Liberty – Guest Essayist: Professor Joerg Knipprath
A t-shirt I saw recently embodies the ultimate justification for parental authority, “I’m the Dad, That’s Why.” Of course, substituting “Mom” works, as well. President Obama’s claims of executive authority to act when Congress fails to enact his vision about immigration matters, Obamacare, or the environment, similarly appears to be, “I’m the President, that’s why.” As a t-shirt slogan, it works; as constitutional doctrine, not so much.
The Constitution gives the President considerable potential to wield broadly discretionary power, from the oath by which he swears to “preserve, protect, and defend the Constitution,” to the clause that vests the “executive power” in the President, to his constitutional position as “commander-in-chief” of the armed forces, to his power to “take Care that the Laws be faithfully executed.” There are few, if any, formal constitutional limits to constrain an impatient President in calling on these powers to act unilaterally when, in his view, Congress has failed to accord him his political due. Perhaps no President did so more expansively than Lincoln 150 years ago.
Woodrow Wilson and other early-20th Century Progressives viewed these reservoirs of discretion as a feature of the Constitution. It may have been the only one in what those of his ideology otherwise saw as a Rube Goldberg-contraption that frustrates, rather than facilitates, managerial government. Latter-day Progressives, such as President and Mrs. Obama, who are ideologically driven to transform society fundamentally, yet find themselves hampered in that quest by the mechanics of the constitutional structure, would see great attractiveness in Wilson’s assertion that “[the President’s] office is anything he has the sagacity and force to make it.”
Necessity is said to make its own law, which explains Lincoln’s expansive and, until then, unprecedented use of these executive powers. The Civil War was the costliest conflict in American history, one that represented an existential challenge to the entity wrought in the struggle for independence from Great Britain less than a century earlier. It is not a precedent to resolve ordinary political contests. Providing access to health insurance coverage to a small percentage of involuntarily uninsured Americans, or allowing some number of individuals present in the United States in violation of established law to gain legal status, is different in kind from the unresolvable constitutional issues resolved by blood and iron–to borrow from Otto von Bismarck–at Antietam, Gettysburg, and, finally, Appomattox.
There are, of course, ways that Congress can try to stop presidential overreach. The power over spending comes to mind. The refusal by the Senate to confirm appointments of nominees who hold extreme and dangerous views on constitutional matters is another. However, the past several years have shown—and none more than this year—that a President determined to rule “by pen or by phone” will find a sufficient number of congressional supporters who will place short-term political gains over long-term constitutional damage and prevent effective resistance to his usurpations.
Another potential source of resistance to executive power is the Supreme Court. There are certainly precedents in which that institution stood against the President. A recent example is the unanimous decision last year in N.L.R.B. v. Noel Canning, in which the Court rejected the President’s claim that he could determine when the Senate was “in recess” so as to make appointments without the need for senatorial confirmation. Perhaps the courts will stand fast in the current challenge to the President’s controversial unilateral immigration orders.
Unfortunately, bitter experience has shown that the courts cannot be counted on consistently to pull constitutional chestnuts out of executive fire. The growth of executive powers since their germination in the Washington administration as often has occurred despite Supreme Court decisions as because of them. In the end, all that counts is that this growth has happened.
Ultimately, then, it is the character of the American people and their political leaders that will determine the role of government. Constitutional custom, the way that the relationship between the governed and the governors has incrementally evolved and been accepted, controls the actual practice of government more than do formal constitutional rules. The accretion of executive power has occurred in fits and starts, with President Obama simply the latest enthusiast, though also one of the more ideologically committed to the goal. Moreover, the growth of executive power would be inconsequential, were it not for the bigger problem of the growth of government, especially the federal government, at the expense of individual liberty.
Republics are the most difficult form of government to maintain, as political theorists since Plato have explained. Benjamin Franklin’s response to Mrs. Powel’s query about the form of government the Philadelphia Convention produced succinctly states the point, “A republic, madam, if you can keep it.” “American exceptionalism” was not a conceit that Americans were biologically, psychologically, or intellectually superior to others. It simply meant that a form of government was instituted that was different from the conventional wisdom of the age, and that such a form could provide a foundation for human flourishing.
No one had any illusions about the task, however, and most republicans then believed, as had ancient republicans, that the success of the experiment required a virtuous people and virtuous rulers. Sole reliance on their virtue might not be enough to vouchsafe liberty, as Madison explained in Federalist 51 in defense of the structural safeguards in the Constitution. Yet, formal structural designs would not withstand assaults on liberty without a culturally virtuous people. Madison was blunt, “To suppose that any form of [republican] government will secure liberty or happiness without any virtue in the people, is a chimerical idea.” As federal Judge Learned Hand observed in 1944 in a speech on “I Am an American Day,” “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it….”
George Washington declared in his farewell address, “Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports…Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principles.” Benjamin Franklin warned, “Only a virtuous people are capable of freedom. As nations become more corrupt and vicious, they have more need of masters.” John Adams, whose writings throughout his life display the urgency of his concerns about public and private virtue, summarized the point: “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” A whole book can be filled with similarly insistent warnings by those in the founding generation.
The virtues needed for a republic were self-evident to Americans of the founding era. They were the classical virtues, combined with religious faith. Pre-eminent among those virtues was “temperance,” sometimes described as self-control or self-discipline. Justice Felix Frankfurter made the point in the Supreme Court’s classic limitation on executive power, Youngstown Sheet & Tube v. Sawyer, “Our scheme of government is more dependent than any other form of government on knowledge and wisdom and self-discipline for the achievement of its aims.”
It would be the height of arrogance to dismiss the connection between self-control or temperance and successful self-government that writers on politic, ancient and modern, have described. They wrote with a keen sense of appreciation of human nature and the lessons of experience. Yet, it seems that, today, as in too many other things, we believe we know better. There is a narcissism and solipsism in our culture that slashes at our civic culture. Among the governed, this is reflected in the culture of entitlement, the belief one is entitled to individual fulfillment paid for by others. Nancy Pelosi’s statement that, with the advent of Obamacare, people could quit their jobs and follow their dreams to become writers is an example. Never mind that “Dependence begets subservience and venality, suffocates the germ of virtue, and prepares fit tools for the designs of ambition,” as Jefferson warned. There is the concomitant belief that certain groups’ rights are absolute, to the point that all others’ rights seen to stand in their way must yield.
Among the political elites, there is the striving for monuments and personal legacies. The naming of public buildings, parks, thoroughfares, and other taxpayer-funded projects after living persons, especially politicians, has the same monarchical scent as the portrayal of such persons on coins and stamps would have. The latter is prohibited by law. Yet, West Virginia might as well have been named Robert Byrd by the plethora of public works named after him while he was still walking among us. A foreign policy driven by the narcissistic desire for a personal legacy and perhaps a Nobel Peace Prize, rather than by the national security and interest of the country, further demonstrates the abandonment of republican ideals.
In short, it is not at all clear that enough of the culture of republican self-control survives to put a brake on the trend to executive government and its dangers for self-government and liberty. We may yet get a president who possesses that virtue. If not, if the people lack those classic cultural virtues, to expect Congress or the Supreme Court to limit a President who considers unilateral executive action the normal constitutional order and Congress as merely a pliant tool to accomplish his personal policy preferences, is a pipedream. After all, as the French philosopher Joseph De Maistre acidly observed, “Every nation gets the government it deserves.”
Few people know the second stanza of “America, the Beautiful.” It calls on God’s assistance, and then urges America, “Confirm thy soul in self-control, Thy liberty in law.” A republican message for the governors and the governed alike.
An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums. Read more from Professor Knipprath at: http://www.tokenconservative.com/.
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