The problem of the imperial presidency

Modern Age, Fall, 2007 by George W. Carey

The Philadelphia Constitution may be dead, (1) but the basic problems which troubled the Framers--e.g., preserving the rule of law, preventing oppressive government--are still relevant, albeit in the new and different context. For instance, by way of introduction to what follows, the marked changes in relative powers of the branches of government since the time of the founding, though they may have drastically altered the character of the constitutional order, in no way diminish the Founders' basic apprehensions associated with a concentration of powers.

As I will endeavor to show in this respect, the enormous growth of presidential powers should be, at least for those who share our Founders' concerns, cause for alarm. True enough, the proponents of the Constitution, if we are to judge from the ratification debates and the relevant essays of The Federalist, did not regard the presidency as a likely source of oppression. Yet, by extrapolating from the assumptions and beliefs underlying their justification for the constitutional provisions for separated powers, there can be no question that today they would perceive substantial dangers associated with presidential powers. Moreover, to anticipate a matter I take up later, by examining how the Framers sought to prevent a dangerous concentration of power, we come to appreciate how difficult this task would be in today's altered political environment. In sum, by setting forth the concerns of the Founders surrounding the constitutional distribution of powers, we gain a fuller awareness of the perils associated with the expansion of presidential powers and the obstacles that must be overcome in efforts to curb them.

I

We can profitably begin our inquiry by briefly examining Federalist essay no. 48 where we find critically important parameters that seemed to have guided the Founders in their efforts to avoid oppressive government and preserve the rule of law. Having defined "tyranny" in the previous essay as the concentration of legislative, executive, and judicial powers in the same hands, Madison turns in essay no. 48 to a major concern, namely, which branch poses the greatest threat to the constitutional separation. (2)

Now, in answering this question, he recognizes an imperative need to reorient the prevailing views about where the greatest threat of tyranny resides. "The Founders of our republics," he notes, have persisted in equating the executive office with "the overgrown and all-grasping prerogative of an hereditary magistrate, supported and fortified by an hereditary branch of the legislative authority" (257). What they fail to perceive, he remarks, is that "The legislative department is every where ... drawing all power into its impetuous vortex" (256-57). He warns in no uncertain terms that in a "representative republic," such as that envisioned in the proposed Constitution, the legislature bears watching since it can grasp all powers unto itself, thereby establishing "the same tyranny as is threatened by executive usurpations." "It is," he insists, "against the enterprising ambition" of the legislature "that the people ought to indulge all their jealousy, and exhaust all their precautions" (257).

The reason for this reorientation in focus is clear enough: to guard against tyranny, the people should concentrate their attention on power and the institutions that wield it. Under British rule, their concern with King George III was justified, but under the forms of the Constitution, Congress is the institution most to be feared. In spelling this out, Madison also indicates the degree to which republicanism is associated with legislative predominance. The legislature's (i.e., Congress's) "constitutional powers," he points out, are "more extensive" than those of the other branches and "less susceptible of precise limit," which enables it to mask "encroachments" on the "co-ordinate departments." Moreover, he adds, it, alone, has "access to the pockets of the people." On the other hand, he notes, "the executive power," which is "more simple in its nature," is "restrained within a narrower compass," while the judicial power is defined "by land-marks still less uncertain" (257-58). On this score, we should also emphasize, the essays immediately following underscore in no uncertain terms the enormous influence the legislature would exercise over the people, a theme reiterated later in essays dealing with the presidency. In short, given the picture of legislative power drawn in these essays, there can be no gainsaying that Madison firmly believed, as he observes in essay no. 51, "In republican government, the legislative authority necessarily predominates" (269).

Madison's analysis and commentary also provide a backdrop against which we can appreciate the degree to which the legislative branch has lost its preeminent status. One indicator of this decline can be derived from essay no. 49 in which Madison critiques Jefferson's proposal that recourse be had to the people when disputes arise between the branches over their respective powers. Madison answers by noting that the branch most likely to aggrandize would be the legislature and that, in addition, the people would most likely side with the legislature if the issue were submitted to them. "The members of the legislative department," he notes, "are numerous ... distributed among the people at large" with "connexions of blood, of friendship, and of acquaintance" that "embrace a great proportion of the most influential part of the society." "The nature of their public trust," he continues, "implies a personal influence among the people, and that they are more immediately the confidential guardians of their rights and liberties." Neither the executive nor judiciary, he contends, could match these legislative advantages: the judiciary would be too distant and removed from the people, whereas executive officers were "generally objects of jealousy" and "their administration ... always liable to be discoulored and rendered unpopular" (263). In effect, the legislature would be judge of its own cause. Yet, and a significant measure of Congress's decline, is that it no longer enjoys these inherent advantages. On the contrary, there is good reason to believe that today in any such showdown, the executive, and even the judiciary, might well prove to be an overmatch for Congress.