The Savage Presidency

Stephen Griffin

Before making some general observations about Charlie Savage’s new book Takeover, I want to say that this is one of the best journalistic accounts concerning presidential power (a topic difficult to explain to a lay audience) published in a long time. Savage appears to be a tireless reporter and he takes on many interesting issues in the book. I agree with him (or his sources) on many specific points concerning the Bush II administration’s use of power. Here are a few: trying to set up military commissions from scratch (or even use them at all) was a major error; the analysis of presidential power in the torture memos was incompetent; trying to conduct NSA domestic surveillance outside of FISA was illegal; and there is no such thing as unilateral presidential authority to ignore an otherwise valid congressional statute. Actually, that’s quite a list and I’ve left out a number of important discussions in the book – including detainee treatment, signing statements, the unusual role of the Vice President and using Supreme Court nominations to lock in expanded presidential power.

My general concern here is the historical frame in which the book is set, its assumptions about the history of presidential power, particularly in wartime and especially since WWII. You might say Savage starts from the premise that Arthur Schlesinger was right in every respect in his well-known book The Imperial Presidency. Savage’s subtitle: The Return of the Imperial Presidency and the Subversion of American Democracy. How did the presidency get imperial? There is a widely accepted historical narrative, particularly in “congressionalist” and academic writing on war powers in which FDR’s successors departed from original intent and historical practice to foist an imperial or “monarchical” presidency on an unwilling republic. I believed in this narrative for a long time and I wish it was true. If it were, it would constitute a point of consensus around which citizens could rally to work toward a new constitutional settlement.

Over the years, however, I’ve grown skeptical. Understand I’m not about to try to make you feel comfortable with the Bush II mistakes listed above. But I don’t see a way forward simply decrying the excesses of recent presidents. Surely it makes sense to try to understand how things got this way in the first place.

Start with a point I believe Schlesinger noticed. Because many of the specifics about how power is shared among the branches are a matter of historical practice rather than text, public and elite opinion about institutional performance can matter a good deal to the practical power a branch has. People develop “branch affinities,” to use a phrase employed by legal historian Ed Purcell. Prior to WWII, perhaps there was a period of relative equality, possibly congressional dominance, in matters of foreign affairs. Stridently isolationist members of Congress were famous and regarded as oracles of policy and the values of the republic by some. This sort of thinking looked irresponsible after Pearl Harbor. And the course of WWII did nothing to improve opinions (I suspect elite opinions especially) of isolationism. As more was discovered about the Nazis and their ambitions for Europe and the world, isolationism looked positively dangerous. It is often unappreciated today that the prewar Congress took a lot of blame for ignoring foreign policy threats until too late. The presidency came off well by comparison. Perhaps members of Congress in the 1940s felt abashed as well and were now willing to let the president lead the way, especially in wartime. Relative institutional performance and perceptions of performance make a difference, a constitutional difference.

So one unappreciated origin of the imperial presidency lies in the failures of Congress and the opening this gave to FDR and Truman after him. Another relatively unappreciated origin lies in public opinion. In Savage’s imperial narrative, power-hungry presidents seem to parachute in from outside the constitutional system promoting novel theories that have no true historical antecedents. But this ignores that such power would be hard to acquire and wield without the support of millions of Americans. While it may be hard for congressionalists to understand, many Americans do believe the president is head of the government and best able to respond to foreign policy crises. It also tends to ignore the different context in which presidents like Truman operated (I mention Truman because he is thought by congressionalists to have removed us from the constitutional track by deciding to intervene in Korea on his own). By 1950, the Truman doctrine had been declared, the U.S. had helped create NATO, and we had a permanent standing army. No matter what decision Truman made about Korea, he was already operating in a fundamentally different context than any prior president. This meant it was difficult for him to conform to original intent no matter what he did.

I’ll give one more example of a changed context that affects Savage’s analysis. Critics of the imperial presidency tend to be so wedded to original intent that they have a hard time with other aspects of the constitutional system that contribute to the imperial presidency, yet are nonetheless conceded to be legitimate. Like political parties. At one point Savage acknowledges the role of parties only to say that the president as party leader “can make Congress behave more like a subordinate and deferential arm of the executive branch than like the independent and coequal institution the Founders intended it to be.” After making some effort to think and write about the importance of informal constitutional change, I admit I don’t have much patience for this kind of argument. We can start from the point that many historians and political scientists think the constitutional system would have fallen apart had we respected the views of the framers and outlawed political parties. Parties helped overly separate branches work together to create public policy.

But this really doesn’t get to the heart of the matter. Given the system the framers set up, particularly with the cumbersome set of procedures for changing the Constitution in Article V, informal adaptations like parties were inevitable once we moved from being a somewhat deferential republic to a full-blown democracy. Parties are part of the constitutional system and cannot be regarded, as Savage does here, as alien. Therefore, their effects are also part of the system and hence prima facie legitimate (although certainly not beyond question). We certainly won’t get anywhere by trying to wish them away. Savage’s comment on parties is a good example of the limitations of the original intent perspective. It tends to encourage us to ignore those aspects of our system of government that are constitutional in the sense of structural but were not present in the eighteenth century. So indeed imperial presidents appear to be aliens from another world. As long as we take an eighteenth-century perspective on the post-WWII presidency, we will continue to have trouble understanding why presidents of both parties seem addicted to imperialism. And we will also be unable to find plausible responses to the kind of assertions of presidential power seen in the Bush administration.
Posted 11:00 PM by Stephen Griffin [link]