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October 2, 2012

The Expanding Power of the Presidency

Jay Cost on The President’s Czars: Undermining Congress and the Constitution by Mitchel A. Sollenberger and Mark J. Rozell

Mitchel A . Sollenberger and Mark J. Rozell. The President’s Czars: Undermining Congress and the Constitution. University Press of Kansas. 356 Pages. $39.95.

Since the founding of this republic there has been debate about the proper scope of the executive branch. Chastened by the tyranny of George III, the first independent state governments emphasized weak executives, and the Articles of Confederation prescribed none whatsoever. But the social and political turmoil of the 1780s taught the earliest generation that they had swung too far in the opposite direction — and the Constitution was basically a compromise between the extremes of no executives and a totalitarian monarchy. It called for an executive that would have vast powers in foreign affairs, great limits in both managing domestic policy and initiating war, and above all a dependence on both the Congress and the sovereign states (and, eventually, the whole people).

The debate over a strong executive branch would not end with the ratification of the Constitution, as vigorous presidents like George Washington and above all Andrew Jackson induced fears among ardent republicans that a creeping monarchism was afoot in the New World. Indeed, the extent of executive power became a focal point of the so-called “Second Party System” of 1824–60, as the National Republicans (later the Whigs) blanched at the strong executive leadership of Jackson — King Andrew I, as he was derisively known — as well as James K. Polk.

The Abraham Lincoln presidency during the Civil War was the strongest executive the country had seen to date, but after Reconstruction the executive fell into the background for the next generation. Civil service reform took from the president a major source of his political power — namely, patronage; the closeness of elections from 1876 through 1892 meant that no chief executive could really claim a governing mandate; and anyway the federal government had not yet claimed the kind of regulatory and redistributive powers needed to address the problems of industrialization, urbanization, and overexpansion into the West. In other words, the politics of the period were small, and so therefore was the executive branch.

The progressive era brought a lasting change to this state of affairs. Presidents Theodore Roosevelt and Woodrow Wilson had a fundamentally different vision of the executive branch than their immediate predecessors, and indeed really any prior president going back to at least Jackson. They envisioned the presidency as the mediator of the national interest — something quite distinct from what our Congress-centered Constitution prescribes — and thus saw the occupant of the White House as a ceaseless source of activity: communicating to the public about what the national interest requires, placing pressure on recalcitrant legislators, taking an active lead as head of a national political party, and generally rallying the nation to whatever cause he deems important.

Enterprising chief executives innovate new pathways of power, are met with little resistance, and thus the innovations soon become norms. Most presidents since TR have contributed to this process, regardless of party or ideology.

With the exception of the presidencies of Warren Harding and Calvin Coolidge from 1921 through 1929, this view of the presidency has more or less obtained ever since. Republicans and Democrats, conservatives and liberals, have all ascribed to it — at least when their side resides at 1600 Pennsylvania Avenue. What’s more, this view has taken hold as a normative ideal both in the academy and the public at large.

The standard text for any presidential history class remains Richard Neustadt’s Presidential Power, which unabashedly celebrates this modern presidency over the mere “clerkship” of the late 19th century. What’s more, presidential rankings by historians inevitably favor those commanders in chief who acted in a “modern” way — fdr, tr, Wilson, etc. — while leaders like Grover Cleveland and Coolidge are regularly dismissed as forgettable.

How do we explain this change, in light of a written Constitution? After all, the very purpose of writing down the organizing principles of the government was to prevent slow alterations to the way politics is conducted. And yet, that is exactly what we have seen with the presidency. If anything, the only amendments to the Constitution since the 1700s have actually limited the power of the chief executive, formally limiting him to two terms, and yet the power of a Barack Obama is vastly superior to, say, Benjamin Harrison. What to make of this?

An interesting quirk of our constitutional system is how it can be altered without amendment. If a leader — usually the president — takes power for himself that is not strictly within the boundaries established by the Constitution, and the people do not complain loudly and long enough, then the founding document is effectively amended, as a new precedent is established. This is the primary way that the country has developed an immensely powerful commander in chief, despite the fact that the Constitution dedicates less than 1,000 words to the executive branch.

It has been in this manner that, over the last 100 years, the scope of the presidency has grown: Enterprising chief executives innovate new pathways of power, are met with little resistance, and thus the innovations soon become norms. Most presidents since tr have contributed to this process, regardless of party or ideology. No president or political movement has ever reversed the trend, nor really ever tried.

It is undeniable that this expansion of presidential power has disrupted the traditional relationship between the executive and legislative branches. We can see this in a number of different dimensions. The Framers, for instance, carefully separated the power to declare war and execute a war between the Congress and the president, but today the president has power to do both and Congress merely ratifies the decision after the fact. Similarly, the power to make domestic policy and execute it was intentionally divided between the two branches, but today Congress regularly issues directives so broad that the executive is tasked with formulating and executing policy. (In a similar vein, the Congress has agreed to an effective end-run around the constitutional provision that all tax bills must originate in the House. The Senate regularly constructs such bills, and places them as an amendment to some otherwise mundane piece of legislation passed by the House.)

Additionally, presidents often engage in extra-legislative policymaking through the use of executive orders. Even though their authority does not trace back to the Constitution, executive orders from Lyndon Johnson and Richard Nixon actually established the highly contentious principle of affirmative action in federal contracting. There is also the broader and broader invocation of “executive privilege,” which is not to be found in the Constitution either but is now commonly cited for purely political purposes. Another extra-constitutional innovation, known as “signing statements,” have effectively granted the president a line-item veto, something the Supreme Court has explicitly rejected as unconstitutional. Nevertheless, presidents use signing statements as legal cover not to implement portions of laws that they find unacceptable.

Perhaps most disconcerting of all these extra-constitutional innovations is the rise of the “czars,” the subject of an excellent new study by Mitchel Sollenberger and Mark Rozell. The two authors explicitly reject the “utilitarian” approach of presidential scholarship — embodied in the works of researchers like Neustadt or Charles O. Jones, who focused on what works or doesn’t work for the presidential agenda — and instead adopt a “public law” frame to analyze the rise of czars. In other words, they are primarily interested in the extent to which czars are compatible with the traditional notions of republicanism, or rule by the people, as well as the system of checks and balances that give Congress oversight of many executive activities.

They then define a czar as an executive branch official not confirmed by the Senate but possessing power to impose rules and regulations, oversee budgets, or coordinate executive policy responses. They find that czars exercise substantial power outside the traditional constraints imposed by the Constitution. Perhaps no better example can be found in the person of Steve Rattner — President Obama’s “auto czar” — who set the terms of the bailouts of Chrysler and gm , based upon a rather tendentious reading of the tarp legislation, in ways that were contrary to longstanding rules in bankruptcy court and highly preferential to the United Auto Workers, a vital constituency of the Democratic Party.

Though the czars have become an easy target of conservative criticism during the Obama years, it is a fact that presidents of both parties have made use of them. Indeed, it makes a great deal of sense because, unlike cabinet heads and other executive officers, czars operate independently of the Congress.

Employing a very precise methodology for determining who really is a czar and who is mislabeled as such by the media, they find the first czars emanating (unsurprisingly) out of the Woodrow Wilson administration, and in particular the national response to World War I. fdr used czars to deal with the emergencies of the Great Depression and World War II, but in time czars transformed from an extraordinary position to deal with an extraordinary situation to a common appointment. Ronald Reagan had three czar positions, George H.W. Bush and Bill Clinton both had two, George W. Bush had eight, and Barack Obama — who as a candidate complained about the executive excesses of his predecessor — has a whopping twenty czars running around the West Wing, all of whom exercise substantial power independent of the Congress and, by extension, the people themselves.

These czars — like signing statements, executive orders, and the breakdown of clear lines of authority between congressional and executive war-making and domestic policymaking — trace back to the progressive innovation of the vigorous executive. We should not be surprised that occupants of the three branches search everywhere and anywhere to expand their power at the expense of their constitutional rivals. The public pressure of the exuberant presidency has induced the occupants of the White House to push harder than ever, as they know full well that they will be evaluated at the ballot box and then by history not by how well they have executed their duties under Article II but how they have managed the entire country. Put another way, if the public is going to praise or blame the president for the quarterly Gross Domestic Product report, then it should come as no surprise that he will do anything and everything he can get away with to make sure the numbers are good.

This should trouble those who cherish our constitutional regime, one that envisioned a republic in which the Congress would take the lead in public policy and that prized checks and bal- ances above the utility of a vigorous executive. And it is for such readers that Sollenberger and Rozell provide an additional service. Going against the 60-year trend in scholarship that celebrates — implicitly or explicitly — the active and energetic model of presidential action, the authors offer a stark warning about the republic’s czarist regime:

We are deeply troubled by these developments. Czars are a constitutional aberration, a direct violation of the core principles of a system of separation of powers and government accountability. Presidents may find some utility in having czars. Many members of Congress may even be content to defer to the executive branch to undertake complex policy problems and the responsibility for any outcomes. Organized groups and many concerned citizens may also appreciate the seriousness that a president attaches to their issues when he appoints one person to solve them. None of that should override the rule of law. The constitutional framers did not create this delicately balanced system of separated powers for the convenience of officeholders or to achieve efficiency or immediate gratification of citizens. Different forms of government can better achieve those ends; ours should stay true to the principles of balanced and constrained powers. Czars do severe damage to our principles and the practice of creating and appointing them should be stopped.

Unfortunately, the authors stop short of how to remedy this situation, and perhaps with good reason. In Chapter Five, they note that the congressional response to the so-called “imperial presidency” of the Nixon administration was much heavier on the smoke than the fire, and after a few years of respite, we have seen the executive branch begin to encroach more and more, with little pushback from the other branches.

That congressional inaction is worth considering in some detail. After all, the Constitution is what it is — regardless of the informal innovations that have been heaped upon it in the last 100 years — meaning that Congress could, in theory, restore its primacy quite easily, if it were so inclined. Clearly, it is not — as evidenced by the tepid response to Watergate as well as the widespread acceptance of the vast expansions of the executive under George W. Bush and Barack Obama. Why has Congress been so loathe to assert itself?

The answer is as obvious as it is troublesome: The people do not want it to. Despite the bad publicity that has recently surrounded the czars, signing statements, presumptuous executive orders, and the like, the great majority of the people are sufficiently content with an active executive branch that they are willing to tolerate these excesses.

Thus the rise of the czars, as well as other troubling aspects of the modern presidency, connect inevitably to the quantitative and qualitative growth of the federal government. Indeed, one cannot escape the warnings offered by Alexis de Tocqueville at the end of Democracy in America, when he conceived what a democratic tyranny would look like:

Our contemporaries are constantly excited by two conflicting passions: They want to be led, and they wish to remain free. As they cannot destroy either the one or the other of these contrary propensities, they strive to satisfy them both at once. They devise a sole, tutelary, and all-powerful form of government, but elected by the people. They combine the principle of centralization and that of popular sovereignty; this gives them a respite: They console themselves for being in tutelage by the reflection that they have chosen their own guardians. Every man allows himself to be put in leading-strings, because he sees that it is not a person or a class of persons, but the people at large who hold the end of his chain.

This is a fair description of the modern, federal welfare state, which provides each citizen with a panoply of resources from birth until death. It is not practical for the United States Congress — so often unruly, divided, and undisciplined — to offer such a comprehensive program of entitlements. Instead, the most sensible place to vest this power is in the presidency — that fulfills Tocqueville’s condition of apparent freedom but comforting servitude.

Viewed from this perspective, the imperial presidency and the weak congressional response to it make much more sense. The people have made a rational, cost-benefit calculation: Sure, a broadly powerful executive branch imposes upon areas constitutionally owned by the Congress, but it also makes sure Social Security checks are cut on time, Medicare pays the doctors, and the Head Start programs stay open. All the while a false sense of individual liberty is retained.

At the close of the Constitutional Convention in 1787, Benjamin Franklin was asked, “Well, Doctor, what have we got — a Republic or a Monarchy?” He responded, “A Republic, if you can keep it.” Maybe the rise of the imperial presidency — including the troubling creation of this czarist regime — is a sign that, somewhere along the way, we’ve lost the republican character of our government, and instead, as Tocqueville worried, embraced a kind of soft despotism that provides cradle-to-grave amenities along with the illusion of popular control.


Jay Cost is a staff writer for the Weekly Standard and the author of the new book Spoiled Rotten. He lives in Pennsylvania.