More on presidential dictatorship

Sandy Levinson

I have gotten into hot water before by suggesting that our vaunted (and highly defective) Constitution in effect creates a partial presidential dictatorship. Some people, wrongly I believe, assume that the notion of "a partial...dictatorship" is an oxymoron. I will address that point more below. Others, just as wrongly, say that we can't describe the President as a dictator because, after all, he (and I won't bother adding the usual "or she" in this particular posting) is "accountable" to We the People, unlike "real" dictators.

So let me explain: First, as to the "partial" nature of the dictatorship. No one would argue that the president has anything approaching dictatorial power with regard to making changes happen on the domestic side. Indeed, presidents traditionally learn early on in their terms that we have a constitutional system geared for gridlock and that they can achieve little, if any, of their more ambitious agendas, such a medical care reform for Clinton or privatizing social security for Bush. To be sure, as Elena Kagan explained in a brilliant article on the Clinton Administration's version of the administrative state, aggressive presidents can try to capture control of some of the executive agencies and use their power to get compatible regulatory changes that have not (and might well not) be approved by Congress, but, at the end of the day, it would indeed be hyperbolic to describe this as "dictatorial," not least because an aroused Congress has a variety of ways of exacting revenge against administrative agencies who become clear outliers relative to congressional preferences.

Where "dictatorship" becomes somewhat less hyperbolic is with regard to the policy-based presidential veto that I have previously railed against. Here, one man, with the stroke of a pen, can negate the judgment of majorities of both houses. Yes, it's true that vetoes can theoretically be overridden, but as I demonstrate in my book (which I won't bother to name, since you can find it in the right margin), the "success" rate for presidents is approximatly 95%. So even if presidents have limited power to make things happen, with regard to domestic policy, they have close to absolute power to prevent things from happening, at least at the national level, unless the particular policy in question can survive both a partisan-gerrymandered House and a Senate that gives unconsionable power to senators representing small-population states. (States, of course, may take the lead, as is happening to an extent both with medical and environmental policy, but for all sorts of well-known reasons, policy in these areas must ultimately be made at the national (or, re the environment, international) level rather than left to smaller units of government.

One defense of the veto, as well as other exercises of presidential power (especially by "unitary executive" buffs) is that the president is "accountable" to the electorate. This may be true in the first term of a presidency, when one assumes a) that a president will wish to run for re-election and b) that a president will behave as a "rational actor" and shape actions around the prospect of appealing to voters. But this model has not apparent application to a second-term president, who knows above all that he will be out of office in a measurable number of days (currently, I believe 655) and will never be facing the electorate again. If the president is a loyal party man, then one might build in a "transferred accountability" notion, by which the altruistic president will shape actions about what will help a future candidate from his own party, but that may be a stretch, particularly when we come to the area where the term "dictatorship" is most appropriate, which is foreign and military policy.

Ironically, in these areas, it's not even crystal clear that we would want a president to be "accountable" to the public in the way described above if that meant that a president would engage in actions that he believed would be harmful to American foreign policy or security interests merely to pander to voters. Sure, this occurs--see, e.g., the idiotic boycott of Cuba because of the fortuitous power of Cuban-Americans in Miami (and, to some degree, in Jersey City)--but there are few who will defend such phenomena on "political grounds" alone. (If you think the boycott is a good idea, fine. Then the president is doing the right thing and not pandering. Don't bother sending in comments about how bad Castro is and how efficacious the boycott is.) But does anyone believe, for example, that someone so smart as Bill Clinton believed that our Cuba policy made the slightest bit of sense? And does anyone believe that Hillary Clinton is any more committed to that policy on the merits than her husband most probably was(n't)?)

And, incidentally, one might place the presidential pardon in the basket of "dictatorial powers," if presidents choose to use them that way. Just as veto can negate the solemn judgment of majorities of both houses of Congress, so can a pardon negate the conclusions of a jury and of the judiciary. Can you spell I. Lewis Libby or, for that matter, Caspar Weinberger, the beneficiary of a pardon at the very end of George H. W. Bush's administration, a far, far more serious act than Bill Clinton's presumptively indefensible pardon of Marc Rich? Pardons, of course, are directly traceable to the prerogatives of kingship. I'm actually not opposed to a presidential pardon power, but we should note that it is in fact subject to abuse, whether or not there is a legal remedy for such abuse.

In any event, second-term presidents have none of the "electoral connection," with regard to their own retention in office, that David Mayhew so memorably describes when discussing members of Congress. And even if a lame-duck president has an interest in the mid-term election, given its relevance to the potential success of his agenda, there is no such "connection" in the last two-years of an eight-year term, which is, of course, our own present situation. Let me suggest, incidentally, that one relevant difference between Clinton's request for the resignation of all 93 US Attorneys and Bush's more recent efforts, is precisely that Clinton as acting at the beginning of his first term, and if there's anything we know about Bill Clinton, it is that he was thinking from day one of his next campaign. Thus he presumably expected to be held "accountable" in the 1996 campaign, though, interestingly enough, no one seemed to care. George W. Bush, on the other hand, is acting in an extremely different context, where there is no such electoral incentive to keep him (or Karl Rove) minimally honest (and, guess what, they aren't).

Nor can one maintain that "accountability" is provided by some previous "authorization" by an electorate. Even if one believes that mass electorates can be said to "authorize" particular policies, to rely on past elections for some general decisional authority by a president is to adopt something far closer to a notion of "limited-term dictatorship" than a truly "accountable" presidency. (As I shall note below, there is no necessary contradiction in describing someone as a "limited-term" dictator.)

So, as Mr. Bush so unforgettably described himself, in certain realms he is, indeed, "the decider," with little or no accountability in any formal sense. The threat of impeachment doesn't work, for at least two reasons. One is that it is spectacularly unlikely in fact to work as a means of getting rid of a president. The second is that the Constitution forces us into an almost entirely beside-the-point debate about whether the president has committed a "high crime and misdemeanor" rather than the proper debate about whether his policies are in fact a menace to the nation and the world (not to mention the brave young (and not so young) men and women whose lives are indeed being "wasted," as was said in incautious moments by Sen. John McCain
and Sen. Barack Obama). What I believe we need, as most of you know, is some system for a vote of no-confidence, which would make a president accountable, but there's no point in rehearsing that oft-presented argument.

Most Americans have an unanalyzed picture of "dictatorship," revolving around, say, "ideal- type" dictators like Stalin, Hitler, Castro, or Saddam Hussein. But, as Clinton Rossiter pointed out almost sixty years ago in a marvelous (and scary) book, Constitutional Dictatorship, such dictatorships are only at one end of a spectrum. The notion of institutionalized (and limited) dictatorship goes back to ancient Rome. One might not be able to be partially pregnant, but one can be a "partial dictator" if there is a policy domain over which one has basically near-absolute authority, even if it's only for a specified period of time, without fearing political consequences beyond loss of popularity. (And certain "leaders," including, one suspects, Mr. Bush, to some extent luxuriates in his present unpopularity as a sign that he is indeed standing up for principles, just as did his hero Winston Churchill during theh 1930s.) Some defend the DOJ purge on ground that the US Attorneys are mere "employees at will," subject to presidential whim; would they support the right of Bush, like Caligula, to appoint his horse (named, in this case, Alberto "Fredo" Gonzales)? In any event, I believe they are adopting a theory of government akin to dictatorship. I might be unfair to them if they recognize Congress's genuine participation in the appointment process and the right to refuse to confirm some of these nominees, though I would then expect them to support the repeal of the the Administration's cleverly salted recent legislation that operated precisely to cut Congress out of the loop.

It's probably true that I wouldn't be moved to be reflecting so much on "constitutional dictatorship" if it weren't for my opposition to George W. Bush, which I know that some of you believe is over the top. Even if it is, I am offering an institutional analysis that applies to all of our contemporary presidents, particularly in their second terms after mid-term elections. And, for what it is worth, for all of my loathing of Mr. Bush, I have publicly opposed, in an essay in The Nation, impeaching him. Even I concede that there is nothing that can be done (other, for those who believe it is efficacious, than to pray that the great "decider" gains some wisdom to go along with his arrogance) about the Bush presidency. But we have another president who will take over on Jan. 20, 2009, and, regardless of our political preferences, we might have a useful conversation about whether we're entirely happy with the kinds of powers--including smothering with "executive privilege" communications from party hacks whose sole job is to aggrandize presidential power--that that man or woman will have, particularly in the second term.

Carl Sandburg once wrote that "the fog comes in on little cats feet." So can authoritarian/dictatorial governance. This is the discussion we ought to be having as we decide who shall next inhabit the White House. But, of course, one thing that prevents its taking place, besides the "horse-race" media coverage of the races, is that such a discussion requires admitting that our sacred Constitution might not be the barrier against tyranny (even if the tyrant has only a limited term) that we'd like to think it is.
Posted 2:24 PM by Sandy Levinson [link]