The problem of the imperial presidency

Modern Age, Fall, 2007 by George W. Carey

III

If we follow the injunction of the Founders, namely, to keep our eyes riveted on the locus of power, then it is evident that we are now obliged to guard "against the enterprising ambitions of" the executive "department." But beyond this rather obvious conclusion is another not quite so obvious one: Given the character of the American political landscape, the presidency promises to be the institution that will permanently pose the greatest threat to liberty and self-government. Thus, whether or not President Bush's restoration effort falls short of its goal or not, we can expect to see a continuous growth of presidential power so long as the Constitution and the political culture surrounding it endure.

The reasons for this are multiple, but the most basic is a critical dissolution of the motives or impulses that the Framers believed would preserve the intended constitutional separation. Returning to The Federalist, we see from that brace of essays dealing specifically with the separation of powers that they believed institutional interest would ultimately serve to preserve separation. We gather as much from Madison's analysis in Federalist no. 51 where he maintains that "the great security against a gradual concentration of powers ... consists in giving to those who administer each department, the necessary constitutional means, and personal motive, to resist the encroachment of the others" (268). As far as the "constitutional means" are concerned, they relate to strengthening the weak (vesting the president with a qualified veto) and weakening the strong (dividing the Congress into two chambers). These constitutional means are necessary but not sufficient for maintaining separation; they must be united, as he points out, with an institutional interest so that the office holders will, when necessary, act to defend their "turf" against encroachments. To this end, as Madison maintained, "The interest of the man must be connected with the constitutional rights of the place" (268). He even describes this solution in terms of "supplying, by opposite and rival interests, the defect of better motives" (269).

In light of this, we may ask: Does institutional interest play the role that Madison, and presumably the Framers, believed it would? I think the answer to this question is both "yes" and "no." In my judgment, institutional interest is alive and well within the presidency and the Court, but dormant, if not dead, within Congress. The reason for this is to be found largely in the conjunction and inter-play of two factors: the enormous growth of presidential powers and the president's role as leader of his political party. What we have witnessed, increasingly in modern times, is that when the same party controls Congress and the presidency, Congress is more or less compliant with presidential requests, even those involving institutional prerogatives. In short, in this circumstance, party considerations trump institutional interest. This, it should be noted in passing, is not all surprising. Suffice it to say, sublimating institutional interest to partisan considerations serves the individual interests of the members of Congress. (19) By the same token, when Congress resists executive encroachments--and this, usually, only when there is divided government, i.e., where one party does not control the presidency and both legislative chambers--partisanship, not institutional interest, would clearly seem to be the motivation. (20)