POTUS-phobia

by Eric A. Posner | December 23, 2010

The Decline and Fall of the American Republic
By Bruce Ackerman
(Belknap Press, 270 pp., $25.95)

Bruce Ackerman, a professor at Yale University Law School, does not mean that the United States has collapsed like the Roman Empire, or that it will. His title refers to the American constitutional traditions of limited government—what the Founders and some modern legal scholars call the “republican” form of government. Ackerman thinks that the presidency has burst these limits: it has become too powerful, and eventually it will be seized by an ideological zealot who will abuse executive powers. Ackerman does not predict what this zealot will do, nor when he will take power. The title and much of the text imply that the end times are here, or are inevitable unless we take strong actions today, but Ackerman commits himself only to the proposition that a zealot will take control in the foreseeable future with a probability greater than zero.

Ackerman’s best but least original argument is diagnostic. In 1973, Arthur M. Schlesinger Jr. published a book titled The Imperial Presidency, which argued that the American presidency had obtained powers far beyond those dreamed of by the Founders, and that this expansion of executive power at the expense of Congress and the judiciary threatened American freedoms. Schlesinger’s argument was nothing new, but his book was lucid and comprehensive, and in the aftermath of Watergate it struck a nerve. Clinton’s impeachment dealt a setback to the thesis, leading Schlesinger himself to write that the executive had become too weak. But George W. Bush’s presidency gave new life to it (causing Schlesinger to reverse himself yet again), and Ackerman is one of dozens of academics who have been inspired to extend Schlesinger’s argument.

The story is familiar. Americans began the Revolution by citing (and exaggerating) the executive tyranny of the British king, but by the time of the Constitutional Convention their experience with state legislatures had convinced them that it was legislative tyranny that posed the major threat. The Founders thus created elaborate checks and balances constraining the national legislature, but they left the executive office ambiguous, in this way papering over disagreement about the proper scope of executive power. A group of strong executives in the eighteenth and nineteenth centuries—Washington, Jefferson, Jackson, Polk, Lincoln—set the foundation for the imperial presidency of the twentieth; but for most of the nineteenth century the presidency was not a powerful office. Congress played the central role in the national government, and the state governments remained, in most domains, the primary loci of political power.

All this changed in the twentieth century, when the imperial presidency was institutionalized. Congress, the federal judiciary, state governments, and other institutions gradually acquiesced in the expansion of the national executive. The growth in executive power was partly driven by crises—in particular, the economic crisis of the Depression and the military crisis of the Cold War. Both events made clear to the public what sophisticated observers, and especially reformers, had already realized: that the major issues of the day were national and could not be addressed by the states. They were complex and rapidly changing in a way that drew on the institutional advantages of the president, who, unlike Congress and the judiciary, can order about cadres of specialized administrators, police, and soldiers as problems emerge and recede. Advances in technology—communications, transportation, information processing—also favored the executive by giving it the power to appeal to the public and making it the focus of developing national media.

In retelling this story, Ackerman dwells on recent technological and institutional developments that create dangers beyond those identified by Schlesinger in 1973. He believes that presidents use modern polling techniques and the social scientist’s bag of tricks to manipulate public opinion. Journalism and traditions of journalistic objectivity have eroded. Joining the technology panic du jour, Ackerman argues that the Internet polarizes the masses, creating conditions in which a large segment of the public could lose its senses and vote an extremist into office—a possibility enhanced by the Electoral College system, which permits a popular minority to elect the president. And thanks to the replacement of old-style party conventions with the modern primary system, political professionals no longer exercise the moderating influence on the public that they did at an earlier time.

Meanwhile, the president increasingly issues signing statements when he signs legislation, which say that a statute will be interpreted so as to avoid violating the executive’s constitutional powers. He relies on the Office of Legal Counsel to provide legal rationalizations for his actions, and in those rare instances when the loyalists in the OLC refuse, he can always turn to his super-loyalists in the Office of White House Counsel to supply the legal rubber stamp.

As a result of these changes in technology, institutions, and public sentiment, the modern president has a great deal more power than presidents in the past to implement his policy preferences, unchecked by other agents. In addition, ordinary people have more direct control of who is elected to the presidency. This latter development might sound good, but in Ackerman’s view it is not good at all: people can easily be swept up in a populist frenzy and elect a charismatic extremist rather than a middle-of-the-road professional politician.

But if Ackerman is right that people have more direct control of who is elected, then his worries that the executive has become more powerful are less persuasive. In several places he argues that the modern executive is “lawless,” citing Watergate, Iran-Contra, and the Bush administration’s counter-terrorism policies. But this is just to repeat the descriptive thesis in a negative register. Lawyers who defended Bush’s counter-terrorism policies did not believe that he acted lawlessly; they believed that he derived authority from the Constitution that permitted him to ignore statutes inconsistent with national security. The complaint about lawlessness just begs the question of what the Constitution means—and Ackerman’s own account supports a “living Constitution” - style argument that the executive has evolved beyond the boundaries imagined by the Founders.

Ackerman also claims that American political institutions were designed to ensure that political change occurs at a slow pace. Policy change must take place piecemeal, as staggered elections gradually populate the presidency, the House, and the Senate with like-minded people, and then, after further delay, the judiciary with presidential appointees. A powerful executive can effect change rapidly, in violation of this tradition. Yet Ackerman does not try to prove that slow political change is better than fast political change. Indeed, he praises the British parliamentary system where policy can change on a dime because (typically, although not always) the head of government and the legislative majority are controlled by the same party. Thatcherism was a revolution because Thatcher’s party controlled parliament. Reagan had to contend with a hostile Congress, and so his revolution was not nearly as radical.

 

Perhaps, for this reason, the dominant worry in Ackerman’s book is the fear of extremism—that an extremist will seize the presidency and stay in power by manipulating public opinion and exploiting the institutional powers of the modern executive. But Ackerman provides no evidence that this will happen. He does not claim that any president in the last forty years—or ever—has been an extremist. Ackerman worries that under the modern system for electing presidents, sitting governors and senators cannot run for election because they are too busy, leaving the field open to crazies who do not have a job. Yet in our last election, most of the major candidates—Obama, Biden, Clinton, McCain, and Palin—were sitting governors or senators.

The arguments about Internet polarization on which Ackerman relies have recently provoked a backlash, with the latest social science evidence suggesting a more complex story. People sample an ideologically diverse array of websites. They are exposed to a far greater range of opinion than existed in an era in which people received their ideas from the nightly news, the daily newspaper, and face-to-face interaction with neighbors and office-mates. Thanks to the Internet and the modern educational system, Americans are more informed than they were during the Founding era and the New Deal. Journalism has suffered reversals in the last thirty years, but it is far more objective, sophisticated, and skeptical than at any earlier time in American history.

While it is true that presidents try to manipulate public opinion, they do not do a good job at it. New technology can be manipulated by the opposition as well as by the incumbent. And the very ease with which the president commands communicative resources has, in jujitsu fashion, heightened public suspicion about his intentions. Our current president cannot convince one-quarter of the population that he was born in the United States! Presidential popularity ratings go up and down like those of anyone else; and the presidency does not do as well in polls as the Supreme Court, which does not rely on pollsters, image-makers, and political consultants in order to mold public opinion.

Signing statements, the Office of Legal Counsel, and the White House Counsel’s Office are fairly recent innovations, but they are also small beans—vastly less important than the other sources of executive power, such as control over the Army and the regulatory apparatus. Hardly anyone takes signing statements seriously—they have no formal legal effect; and the Office of Legal Counsel and the White House Counsel’s Office are tiny advice-giving institutions that derive their limited authority from other parts of the government (the OLC from the attorney general’s office, to which it gives advice, and the White House Counsel’s Office from the president himself). They are the result of rearguard actions undertaken by a series of presidents in response to Congress’s efforts to impose legal constraints on the presidency. Before the post-Watergate reform statutes of the 1970s, presidents were under fewer legal constraints; their weaknesses derived from political expectations. As political expectations for the president increased and Congress imposed greater restrictions on the president (or, more often, gave the president new powers that were subject to legal limitations), it became necessary for the president to hire numerous lawyers to guide him through the intricate legal maze in which he had been placed.

Another target of Ackerman’s ire is the much-praised Goldwater-Nichols Act of 1986, which greatly reduced the problems of inter-service rivalry by concentrating military authority in the chairman of the Joint Chiefs of Staff. Ackerman argues that the replacement of squabbling service chiefs with a single military leader has given the military a stronger influence on American policy. He claims without evidence that generals exercised malign influence over Bush’s Iraq policy and Obama’s Afghanistan policy, and even warns of something like a military coup—a “constitutional crisis” in which the military defies the government or intervenes inappropriately, even the reduction of the president to a “figurehead.” This “Seven Days in May” argument may strike some readers as paranoid. Bush and Rumsfeld pushed the military around; Ackerman claims that the military retaliated by publicly criticizing Rumsfeld, but Rumsfeld’s ouster after his disastrous performance was a foregone conclusion. And although Ackerman wrote his book before Obama effortlessly destroyed the career of the highly regarded General Stanley McChrystal, whose disrespectful comments about the Obama administration received the support of no serious person inside or outside the military, this episode reflects poorly on Ackerman’s predictive powers.

On the other hand, Ackerman himself says that “the prospect of presidential push-back will itself serve as a powerful deterrent, reducing the likelihood of some of the darkest scenarios to near-zero,” so maybe Ackerman does not believe his own thesis. And for good reason. During the two most stressful periods of American history—the Civil War and the Great Depression—no one believed there would be a military coup. Roosevelt’s scariest rivals—Huey Long, for example-were all civilians. Some historians speculate that a military coup was imminent when the hugely popular General Douglas MacArthur was fired by the hugely unpopular President Harry Truman. Yet after the parades, MacArthur was quickly revealed to be unfit for presidential office, and the episode ended in farce. The Founders worried about military takeovers by charismatic generals because of Julius Caesar and Oliver Cromwell. But two centuries and more of subsequent experience on American soil must count for something. Americans admire the military, but they have never turned to the military for governance, unlike people in most other countries.

In discussing civilian-military relations, Ackerman’s real worry emerges as the fear of excessive influence by the military on politics—akin to Eisenhower’s warning about the military-industrial complex. He may well be right, but this has little to do with extremism and the decline of limited government. Indeed, the prospect that the president might become a figurehead for the military suggests the opposite concern—that the presidency is too weak, not too strong. A similar tension appears elsewhere in the book, when Ackerman frets about the filibuster and Senate holds, which prevent the president from implementing his legislative program and making appointments. These institutional obstacles weaken the president; the elimination of them would strengthen an executive that, in Ackerman’s view, already has too much power.

Even if Ackerman is right that there is a greater chance that an extremist will become president today than in the past, he needs to show that the risk is great enough to justify a restructuring of the government that would weaken the executive’s power to do good. Surely the executive has become a powerful institution because Americans want an activist government and Congress has usually been passive. Presidents have been on the right side of history more often than Congress has; and they also stand up well against the Supreme Court. With great power to do good comes great power to engage in abuse, of course. But there is no way to reduce the risk of abuse to zero without depriving the executive branch of all effectiveness. Should the president be stripped of important powers so that the “near-zero” risk of a military coup will be reduced to nearer-zero? Ackerman scoffs at this question but does not answer it.

Instead he moves on to proposals for reform. You would think that the “decline and fall” of republican institutions would call for radical reform, but Ackerman rules out what he regards as politically infeasible, regretfully commenting that it would be impossible to abolish the presidency and replace the American system with a parliamentary system. He thus confines himself to mostly small-bore reform proposals, which tumble out like an avalanche. All major White House staffers will be subject to Senate confirmation so as to limit the power of toadies, partisans, and ideologues. A Presidential Commission on Civil-Military Relations will establish new canons of ethics that will discourage military officers from meddling in politics. The chairman of the Joint Chiefs of Staff will no longer be permitted to attend National Security Council meetings, except with the permission of the secretary of defense. A new statute will give the president the power to declare emergencies and act unilaterally to counter a threat, but the emergency will end unless Congress periodically renews it in a system that requires larger majorities as time passes. A Supreme Executive Tribunal, composed of independent judges, will evaluate the president’s assertions of executive authority when they are challenged by members of Congress. A National Endowment for Journalism, financed by the government, will transfer funds to news organizations that publish articles on the Internet that readers electronically vote for. On Deliberation Day, which will be held two weeks before presidential elections, groups of citizens will meet and deliberate about the merits of presidential candidates. States will agree to cast their electoral votes for the presidential candidate who wins the national popular vote.

This eccentric jumble of proposals is too ambitious and not ambitious enough. Few if any of them seem politically realistic, yet even if all of them were implemented, they hardly seem adequate to halt the decline and fall of the American Republic. The United States faces many problems today, and the public continues to look to the president for solutions. They do not want to abolish or to restrict the office; they want it occupied by a competent person with access to its full powers. Watergate, Iran-Contra, and Bush’s war on terrorism—which are pretty much all that Ackerman offers as evidence of a dysfunctional presidency—just do not add up to a case against a system of executive primacy that is the best hope for addressing the massive economic, environmental, and military problems that beset us. Ackerman’s fear that an extremist will seize the presidency has no political resonance—not even in our undeniably inflamed era—because nothing like that has ever happened in the United States. And the fact that the presidency used to be a weaker office is a matter of indifference to a practical-minded public that reveres the Founders but disregards their antique political trepidations.

The executive has evolved to its present state because it is the one political institution that can address modern problems. The clumsy, many-headed Congress is hampered by its over-elaborate structure and its senatorial half, where the threshold for action is so high and senators from small states have excessive power. The courts are too weak, passive, and decentralized. State governments are too small. The military lacks people’s trust, at least as far as civilian governance is concerned, because it is not a democratic institution. Precisely because the Founders created an executive office with ill-defined powers, this office could rise to meet modern challenges. James Madison’s vision of checks and balances has given way to a system of executive primacy, but rather than leading to tyranny, as he feared, democratic politics has-so far—kept the American president, sometimes for better and sometimes for worse, under control.

Eric A. Posner is a professor at the University of Chicago Law School. This article ran in the November 11, 2010, issue of the magazine.

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