The Imperial Presidency
O'Lessker, Karl
"The Imperial Presidency" "THE PRESIDENT of the United States," said President Nixon at a news conference in early 1973, has a "constitutional right .. . to impound funds . . . when the spending of money would mean either...
...So he chooses the )xamples that most strongly support his case and demolishes counter-arguments to insubstantial that one wonders how hey ever could have been made...
...Ford will often find himself...
...But can he really draw them in...
...But in the last analysis our birthright o freedom is ours alone to defend...
...This is not to say that we should cringe in anticipation of his imposing all sorts of wildly radical policies (of the Left or Right) upon the nation...
...Congress will retain only a kind of item veto, and even that will become more and more narrowly circumscribed in time...
...Still, the book is no more scholarly than t needs to be...
...the strictest constructionist of the First Amendment is likely to be the loosest constructionist of the Commerce Clause...
...THE PRESIDENT of the United States," said President Nixon at a news conference in early 1973, has a "constitutional right .. . to impound funds . . . when the spending of money would mean either increasing prices or increasing taxes...
...And our society is probably still pluralistic enough to serve as an external check on radicalism in a President...
...If anyone would undertake such a defense, he would be performing the greatest service since the Marx Brothers made A Night at the Opera...
...And no, he probably won't, at least not for very long...
...That is not likely to happen soon o often...
...But over a broad range of policy options both foreign and domestic, future Presidents may be expected to act with all the latitude which Nixon enjoyed, and then some, because none of his successors is likely to be quite so brutally arrogant in his neglect of Congressionalsensibilities...
...Not that Mr...
...But the day of Congress as an independent power in American government has passed...
...Instead we are letting them emerge however they might from each succeeding day's combat, because we're too frightened or too hypocritical to concede that our constitutional system is a shambles...
...At any rate we can look forward with some relish to the scene that is sure to take place if Mr...
...But the policy results will be the same...
...Many of us are capable of self-denial when we know what we are denying ourselves is evil, or at least discreditable...
...Schlesinger's analysis of Nixon's "revolutionary presidency" is as good as anything in the book, showing point by point the precise ways in which Nixon went beyond any of his predecessors in the extension of presidential power...
...And to expect him to yield to constitutional scruples and not use the full existing power of his office is to expect an exhibition not of character but of saintliness...
...In any case, it is a safe bet that he will do nothing to expand the bounds of presidential power...
...Nixon's claim was upheld in either the courts or in Congress...
...He showed that a President will seize whatever power he can in order to carry out his policy goals...
...Throughout twenty-five years as a Congressman he apparently remained immune from the kind of virulence that infects the whole noisome crowd of would-be Presidents, in both parties, who lust after the office as a heroin addict lusts after his next fix—tormented, driven men, each one confident that he alone can really run the show the way it should be run...
...WE shall have to rely largely on intuition...
...We must resign ourselves to a system in which every four years we elect a President who can pretty much run the Federal government as he likes...
...Genuine Whigs are only slight': more numerous on these shores than fei vent Royalists...
...By contrast, Gerald Ford not only escaped that awful contagion but remains, to the date of present writing, fully conscious of his own mortal fallibility...
...And it may even be—I hardly dare express the hope—that he is too old to change...
...See, 'or example, his effortless dispatch in Thapter Three of Senator Goldwater's votesque claim that this nation has 'ought 204 wars in its history, only five )f which have been declared by Congress...
...And now hat conservatives, too, have discovered hat no constitutional practice must be llowed to stand in the way of whatever tappens to be the policy imperative of the our, now that both liberals and conservaives are once more milling about in the enter of the field, edging their way to-yard each other's traditional seats, it light be time once and for all to divest urselves of our hypocritical scruples and dmit that we have no intention of being uided, restrained, or confined by rules aid down nearly two hundred years go and altered over time by politicians o wiser, no more prescient than our wn...
...Those who vant to argue that a President has a ight to impound funds at will, to abolsh duly constituted agencies on his own notion, to wage not only undeclared but ;ecret wars against neutral nations, are iot going to be dissuaded by constitutionII-historical arguments...
...So, putting aside guesses and hopes as to how Mr...
...But how many of us could resist doing what we badly want to do when we are persuaded that it is in the best interests of the nation—nay, of the world—and that it is only wickedness or folly on the part of weaker men that leads them to oppose us...
...Yes, he does...
...Liberals no less than conservatives turn out to be stunningly flexible theorists when the policy occasion demands...
...Its abject failure for more than four years to rein in a runaway Executive shows that...
...Tc the extent it is possible to do so, we shoulc choose character above ideology, humar decency above intelligence...
...To be sure, the policy goal in pursuance of which the President made his claim is especially dear to conservatives, who, once upon a time, used to see the defense of the Constitution as their special charge...
...He also understands, I think, that what distinguishes one constitutional heory from another is not its validity (in my scientific sense) but its artistry—how ;uileful the scholarship, how ingenious the argument, how graceful the writing...
...The next President probably won't be as obvious as Nixon has been about showing his contempt...
...Which branch of government should have the final say on fiscal and monetary policy...
...Celebrants at the altar of the omnipotent )residency are going to have to find a far pore accomplished champion than Sena-or Goldwater (or whatever staff assistant vrites his constitutional theory for him) f they don't want their ideal to appear ,wen more tawdry than it is...
...Ah yes," say you Nixon-haters, "but that was only Nixon doing all those awful things...
...Surely President Ford intends to return to the old system of living within decent bounds of power...
...and an increasingly supine, almost paralytic, Congress can do little or nothing to stop him...
...So it will take someone with far better Whig credentials than mini to sound superior about Schlesinger's con fession of error...
...Only Nixon...
...Mei and women of character can serve a; some restraining influence on th( President, if only by making him uneasy...
...For when the logic of their appeal came close to working itself out in the "revolutionary" presidency of Richard Nixon, they were not at all pleased with the results...
...It was that hard-line strict-constructionist Richard M. Nixon who stripped away the last layers of sentimental gauze to reveal an utterly naked power struggle where once a constitutional system had seemed to stand...
...Are we quite sure that such a President—having observed all that Nixon got away with prior to Watergate—will comport himself with the becoming modesty, the Whiggish self-restraint of an Eisenhower or a first-term Ford...
...Concede, at long last, hat the respective powers of the instituions of the Federal government are to be refined by contemporary need rather than ty past practice—that what President 'olk, for instance, may or may not have hought about executive privilege is all 'ery interesting but not in any way rele'ant to what Presidents ought to be doing n the last quarter of the twentieth cenury...
...I don't mean to sound snide about this The fact is, my own views on the proper scope of presidential power were, and are very little different from Schlesinger's And if I began to grow alarmed a bi earlier than he did, it was only because was viewing the scene from the perspec tive of Capitol Hill while he was still fond ly recalling his thousand days in the Ken nedy White House...
...C) the opposition party controlled both houses of Congress by comfortable margins during his entire presidency...
...Either that tr shift the grounds of combat away from he constitutional...
...By hese tests The Imperial Presidency leserves high marks indeed...
...Ford plants just one more full-blooded conservative on the Court to replace Douglas, Brennan, or Marshall...
...Let me propound a more general proposition: we fashion our constitutional theory to fit our policy preferences...
...Perhaps only a John Ehrlichman or a James St...
...In the general Watergate-is-behind-us euphoria we can too easily lose sight of the following facts: (A) throughout his career Richard Nixon enjoyed very little personal popularity...
...The wonder was that thousands_ didn't get trampled in the rush of liberals and conservatives to claim the seats each had just vacated...
...Clair would attempt to justify so latitudinarian a view of presidential rights...
...Schlesinger, an accomplished polemicist, understands his...
...Another point worth considering is this...
...Houghton Mifflin $10 who among us graybeards is ever likely to forget the tidal shift of support for the Supreme Court that occurred from 1938 to 1958...
...Andby Arthur M. Schlesinger, Jr...
...Let Nixon's most ardent defender read that account and then try to justify, in constitutional terms, the President's actions...
...Ford is a very special President in more than just the obvious Twenty-fifth Amendment respect...
...No one any longer will be bound by whatever answers may be found there...
...Schlesinger doesn't say that—it may not even have occurred to him—but that is the clear upshot of the historical and contemporary record he lays out for us...
...Thy only impassable barrier is us...
...As a result, where Schlesinger concludes with a set of recommendations amounting to little more than a plea to Presidents to be more solicitous of Congress, I concludethat our only hope to avoid the worst consequences of constitutionally unfetterec power is through the electoral process...
...think we have to be extraordinarily care ful—and extraordinarily lucky—in choos ing men to invest with imperial power...
...To the best of anyone's knowledge, he never in his whole public life wanted to be President...
...But that, I believe, is a subject for pathology, not political science...
...Cynics may mutter that conservatives thought the Constitution worth defending only so long as it could be used to defend profit margins...
...For my own part, having come in middle age to believe that we suffer from too much rather than too little government, and viewing the original Constitution as an inspired device for keeping government as restricted as possible, I greatly regret the rise of the plebiscitary presidency...
...Whatever its merits as theory, it has great value as a signpost to show how far we have traveled toward that "plebiscitary presidency" which Professor Schlesinger warns us against in his new book...
...Now comes Professor Schlesinger, a small rueful smile at the corners of his mouth, to concede that, well, yes, he and other liberal academics and publicists might have spoken a bit too vehemently in favor of the strong presidency...
...And who but a mossbac' old Whig has consistently held that th presidency was growing too powerful fo the health of the constitutional system Today it is the liberals who raise that cr3 yesterday it was the conservatives...
...That seems to me to be what we are oing, more and more explicitly, as we ome careening up to the Bicentennial...
...The Decline of the Constitution The Imperial Presidency is less a wor of history than of polemics...
...B) he was elected in 1968 by only a hairbreadth margin against one of the most pathetic opposition campaigns ever seen...
...No dout Schlesinger himself—a superb historia when he wants to be—would concede tha Though it is quite a thick book by today standards, it would have to be man times thicker to do scholarly justice t the mountainrange of materials bea ng on the growth of the Presidency hroughout 185 years...
...That is the situation in which Mr...
...But there wil almost never be sufficient evidence or which to make that sort of choice...
...Surely the most inexplicable of all of Nixon's self-destructive kinds of behavior was his frequent and public display of contempt for even senior Republicans, men who had given him every support in his ascent to the White House...
...Who after all doesn't know he general lineaments of this history of ncreasingly powerful Presidents and increasingly feeble Congresses...
...Ford is likely to behave during the remainder of his present term, think what will happen the next time we elect a personally popular President, by a comfortable plurality, and give him a majority of Congress grateful to him for the pull of his coattails...
...Today it can do little more than to block a President's requests, and even that would be highly improbable if there were a popular President with majorities in both houses...
...Only Congress might once have been able to call a President to account and to make him behave more or less in accordance with the constitutional system of the time...
...It is no a very long step from an imperial presi dency to a totalitarian presidency...
...Despite some scattered individual excellence among its members, Congress as an institution is contemptible...
...Karl O'Lessker...
...But who after all could have imagined, back in the headiest days of the New Deal and Fair Deal and New Frontier, that an imperiously activist President could become the agent for effecting the fondest policy dreams of Senator Robert A. Taft, Sr...
...But to regret it is not to deny its existence...
...What makes it so glaring a signpost is that he even dared to say it, in the most public of forums, and that he provoked no firestorm of outrage and protest...
...SE too in our selections for Congress...
...So to day's conservatives ought to be chortling and applauding the liberals' discomfiture Except that, for the past several year: conservatives have been too busy cheerin the President on to new prodigies of at grandizement...
...Greater wonder still that so few of the rival ideologues paused to consider that something might be amiss with the analytic process itself to have produced so bizarre a spectacle, so massive a turnabout in constitutional theory mongering...
...This is the approach that liberals ised to take—to the rage and horror of all ight-thinking conservatives—in the Rooevelt-Truman days, especially on cam-Rises, where professors could afford to ound a great deal more cavalier about he dusty old Constitution than liberal politicians could out in public...
...How much latitude should a President have in handling foreign affairs...
...The greatest virtue of Schlesinger's book is that it forces us to recognize that this is going on and, by doing so, invites us to step back a little and think about new shapes...
...Infortunately, however, we have given ery little advance thought to the new hape we should like our institutions toassume...
...It is no use looking to the Constitution for answers, nor to the Federalist Papers, nor to the debates in the early Congresses...
...and yet despite all that (D) he pulled off the most astonishing expansion of presidential power in American history...
...All of which leaves us just where Professor Schlesinger ardently hopes we can avoid going—the "plebiscitary presidency...
...the political screening process is still fairly successful in reserving the upper reaches of power for conventional-minded politicians...
Vol. 8 • November 1974 • No. 2
