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...
...Ford plants just one more full-blooded conservative on the Court to replace Douglas, Brennan, or Marshall...
...Andby Arthur M. Schlesinger, Jr...
...Genuine Whigs are only slight': more numerous on these shores than fei vent Royalists...
...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...
...But in the last analysis our birthright o freedom is ours alone to defend...
...That is the situation in which Mr...
...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...
...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...
...Let me propound a more general proposition: we fashion our constitutional theory to fit our policy preferences...
...The wonder was that thousands_ didn't get trampled in the rush of liberals and conservatives to claim the seats each had just vacated...
...He showed that a President will seize whatever power he can in order to carry out his policy goals...
...WE shall have to rely largely on intuition...
...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...
...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...
...But the policy results will be the same...
...Clair would attempt to justify so latitudinarian a view of presidential rights...
...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...
...It is no a very long step from an imperial presi dency to a totalitarian presidency...
...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...
...But that, I believe, is a subject for pathology, not political science...
...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...
...Tc the extent it is possible to do so, we shoulc choose character above ideology, humar decency above intelligence...
...By hese tests The Imperial Presidency leserves high marks indeed...
...Perhaps only a John Ehrlichman or a James St...
...It is no use looking to the Constitution for answers, nor to the Federalist Papers, nor to the debates in the early Congresses...
...think we have to be extraordinarily care ful—and extraordinarily lucky—in choos ing men to invest with imperial power...
...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...
...And it may even be—I hardly dare express the hope—that he is too old to change...
...Either that tr shift the grounds of combat away from he constitutional...
...Mei and women of character can serve a; some restraining influence on th( President, if only by making him uneasy...
...Infortunately, however, we have given ery little advance thought to the new hape we should like our institutions toassume...
...Only Nixon...
...Surely President Ford intends to return to the old system of living within decent bounds of power...
...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 can he really draw them in...
...Yes, he does...
...Its abject failure for more than four years to rein in a runaway Executive shows that...
...Karl O'Lessker...
...In any case, it is a safe bet that he will do nothing to expand the bounds of presidential power...
...The Decline of the Constitution The Imperial Presidency is less a wor of history than of polemics...
...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...
...If anyone would undertake such a defense, he would be performing the greatest service since the Marx Brothers made A Night at the Opera...
...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...
...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...
...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...
...SE too in our selections for Congress...
...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...
...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...
...Thy only impassable barrier is us...
...Cynics may mutter that conservatives thought the Constitution worth defending only so long as it could be used to defend profit margins...
...So, putting aside guesses and hopes as to how Mr...
...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...
...Which branch of government should have the final say on fiscal and monetary policy...
...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...
...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...
...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...
...And no, he probably won't, at least not for very long...
...and yet despite all that (D) he pulled off the most astonishing expansion of presidential power in American history...
...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...
...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...
...B) he was elected in 1968 by only a hairbreadth margin against one of the most pathetic opposition campaigns ever seen...
...Nixon's claim was upheld in either the courts or in Congress...
...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...
...No one any longer will be bound by whatever answers may be found there...
...How much latitude should a President have in handling foreign affairs...
...At any rate we can look forward with some relish to the scene that is sure to take place if Mr...
...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...
...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...
...Many of us are capable of self-denial when we know what we are denying ourselves is evil, or at least discreditable...
...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...
...Not that Mr...
...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...
...That seems to me to be what we are oing, more and more explicitly, as we ome careening up to the Bicentennial...
...Ah yes," say you Nixon-haters, "but that was only Nixon doing all those awful things...
...C) the opposition party controlled both houses of Congress by comfortable margins during his entire 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...
...But to regret it is not to deny its existence...
...But there wil almost never be sufficient evidence or which to make that sort of choice...
...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...
...Who after all doesn't know he general lineaments of this history of ncreasingly powerful Presidents and increasingly feeble Congresses...
...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...
...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...
...To the best of anyone's knowledge, he never in his whole public life wanted to be President...
...Liberals no less than conservatives turn out to be stunningly flexible theorists when the policy occasion demands...
...The next President probably won't be as obvious as Nixon has been about showing his contempt...
...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...
...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...
...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...
...Schlesinger, an accomplished polemicist, understands his...
...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...
...Ford will often find himself...
...Another point worth considering is this...
...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...
...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...
...Let Nixon's most ardent defender read that account and then try to justify, in constitutional terms, the President's actions...
...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...
...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...
...Despite some scattered individual excellence among its members, Congress as an institution is contemptible...
...So it will take someone with far better Whig credentials than mini to sound superior about Schlesinger's con fession of error...
...the strictest constructionist of the First Amendment is likely to be the loosest constructionist of the Commerce Clause...
...That is not likely to happen soon o often...
...the political screening process is still fairly successful in reserving the upper reaches of power for conventional-minded politicians...
...Congress will retain only a kind of item veto, and even that will become more and more narrowly circumscribed in time...
...and an increasingly supine, almost paralytic, Congress can do little or nothing to stop him...
...All of which leaves us just where Professor Schlesinger ardently hopes we can avoid going—the "plebiscitary presidency...
...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...
...Still, the book is no more scholarly than t needs to be...
...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...
...But the day of Congress as an independent power in American government has passed...
...Ford is a very special President in more than just the obvious Twenty-fifth Amendment respect...
Vol. 8 • November 1974 • No. 2
