The Imperial Presidency

Author: Gary Hart
We the PeopleRecent statements by the Obama administration that the president may be considering his own policy of picking and choosing among provisions of laws passed by Congress, similar in principle to the previous Bush administration, is disturbing.  Having spent a lifetime studying the U.S. Constitution, I can find no provision in it that grants the chief executive this power.
Article I, section 1, clearly gives to Congress the sole authority to enact legislation (“All legislative Powers herein granted shall be vested in a Congress of the United States…”).  Section 7 of the same Article gives the president the power to approve or veto laws passed by Congress.  But nowhere in the Constitution is the president given the authority to decide which laws to execute and which not to.
As Congress cannot intrude on the president’s executive authority, except to disapprove it by law, so the president cannot legislate selectively.  Partisan Constitutional scholars may write learned memoranda pointing out instances, usually in time of war, where presidents have acted without authority or have by-passed or side-stepped legislative mandates.  But might does not make right.  And repetition of unconstitutional actions does not make them more Constitutional.
If President Obama proceeds down this path, out of his own sense of expediency or the urging of frustrated or power-hungry advisors, he will be adding precedent for his successors to follow, successors who may not be as scrupulous as he.  The late Arthur Schlesinger, Jr., wrote “The Imperial Presidency” in 1974, at the close of the Nixon administration.  He wrote: “When the constitutional balance [between Congress and President] is upset in favor of presidential power and at the expense of presidential accountability, the presidency can be said to become imperial.”
Partisans repeatedly wish to make exceptions to strict Constitutional construction in favor of their own favored president.  But the Constitution is not a document meant for expediency.  It survives only so long as its terms are honored and obeyed regardless of president, party, or circumstances.

21 Responses to “The Imperial Presidency”

  1. MJR Montoya Says:

    This is a very important point to make at this juncture in President Obama’s presidency. As an early supporter of the president, I am only as supportive as my deeper support of the constitution allows. Identifying when a president has overstepped his boundaries is a tricky issue. It is tricky because presidents can make the rhetorical claim that they are not selecting which legislation to follow, but instead are prioritizing the manner in which that legislation is executed. Taking into account spin and propaganda, how does one distinguish between a president whose executive agenda is complicated by a broad range of mandates and one who is explicitly seeking to ignore certain kinds of legislation?

  2. Serjik Elyasian Says:

    Very well said Senator Hart. I am a Democrat. However, whenever I have to choose between my party and constitutional principles, I end up supporting the latter. There should simply be no excuses or exceptions (even the excuses raised during the war as a rational, should be investigated by the Congress, and if those excuses are found to be more a disguise to enhance the president’s power at the expense of the Congress, then it is the Congress constitutional duty to challenge the president’s illigal encroachment in the constitution, and the Supreme Court’s duty to back up the Congress). We democrats rightly criticized president Bush for all his “signing statesment”s, where after a bill was passed, he unconstitutionally reserved the right to only apply those provisions of the bill that he deemed are compatible with his constitutional authorities as the chief executive officer. If so,then what is the purpose of all the negotiations and compromises before a bill is passed between Congress members themselves, or between the Congress and the White House?! If a president doesn’t like what has been passed, he has the constitutional option to veto it, and find out if his veto can stand the Congress 2/3 majority option to override his veto. That option apart, he should respect and faithfully execute the law (each and every provision of it), period. All Americans should put country’s interest and loyalty to the constitution above any loyalty to the president from any party. We are Americans first; Democrats, Republicans, or Independent second.

  3. nagamaki Says:

    “Nearly all men can stand adversity, but if you want to test a man’s character, give him power.”

    Abraham Lincoln (1809 – 1865)

  4. Michael Carmichael Says:

    Thanks for raising the specter of an extremely dangerous president that could be lethal to constitutional democracy in the hands of Sarah Palin or Dick Cheney.

  5. webegeeks Says:

    Modern American politicians intentionally ignore constitutional requirements and favor expediency. This has rendered our Constitution a quaint historical document and not much more. If it can be taken literally or ignored at will, it truly has very little value.

    The question is what can we do about it? The simple answer is not much! We are given the choice of who we elect from candidates approved by elites so out of touch with the average man who then set out to enact law to benefit the few at the expense of the many. Such is American democracy and no amount of complaining will change the exercise of power. We as a country have become so corrupt and self serving that our actions border on evil most of the time and frequently ARE EVIL!

    Where in our Constitution is the power to filibuster legislation in the Senate granted? If you want to correct the process, do away with the filibuster and let the majority decide. As long as the Senate has the power to block the legitimate will of the people, and the President is allowed to utilize signing statements to circumvent the will of the Congress, our country will remain a corporatocracy. It ceased being a democracy a LONG, LONG time ago!

  6. Robert Post Says:

    As a Colorado Lawyer (and a Democrat)I thought for years that President Bush’s “signing statements” were flagrantly unconstitutional. As I understood them, the signing statements were simply announcements to the world that the administration would not bother to enforce laws that it did not like. This flies in the face of the Executive’s duty to faithfully enforce the law. I was not aware that Obama or his administration were claiming similar powers. If they do, they too are wrong.

  7. Akira Bergman Says:

    The entities of influence on the president, in other words the sponsors of the state, have navigated the murky waters of secrecy for decades to impose both of their conflicting desires on the state. They want small and strong government at the same time. They want to minimize taxes and services while maximizing security and profitability of private wealth. They want to achieve this through a transformation to a police state. The front man has changed but the policies are the same. Few sweeteners may have fooled the public until they got their revised man in the office, but they are not fooling everyone in the age of information revolution.

  8. Dan Wylie-Sears Says:

    Recent? Is there news on this?

    One of the signing statements last year was bad. It occasioned the only really nasty letter I’ve sent to this administration. But the only signing statement in recent months listed at is one in November that’s just saying hooray for us for passing the bill.

    The only such “recent statements by the Obama administration” I’ve been able to find on a quick search are when the president did not issue a signing statement, but expressed an opinion while the bill was in Congress and said that was enough. Here’s one:

    “Consistent with longstanding Executive Branch concerns about similar provisions, sections 107 and 528 and language under the headings “Operations and Administration, International Trade Administration” and “Salaries and Expenses, Office of the United States Trade Representative” would interfere with the President’s constitutional authority in the area of foreign affairs by effectively directing the Executive how to proceed or not to proceed in international negotiations. The Administration looks forward to working with the Congress to address these concerns.”

    That doesn’t sound at all imperial. The White House declined to suggest that they would ignore the law, because the statement that they were looking forward to working with Congress was adequate.

  9. Gary Hart Says:

    In response to Mr. Montoya, the answer is the so-called “signing statements” themselves. Though used by previous presidents with increasing frequency, the George W. Bush administration used them extensively and often they simply singled out particular statutory provisions the president disagreed with and did not intend to implement or enforce. His lawyers provided convenient, but extra-constitutional, arguments regarding “inherent” presidential power. That word “inherent” was code for “not found in the Constitution.” They seemed to argue that our Founders could not anticipate circumstances that would require a president to exceed his Constitutional authority. They did anticipate it, deplored it, and specifically prohibited it.

  10. Michael Califra Says:

    Unfortunately, we live in a time when respect for civil liberties and adherence to the Constitution are widely regarded as something for the weak kneed or as somehow serving the interests of “those people” and not the public at large. Imagine what the founders would have to say about that.

  11. Gary Hart Says:

    Mr. Wylie has issued a cautionary note and I will, as they say in journalism, “check my sources.” If I am incorrectly informed on this issue as it regards the Obama administration, I will be the first to apologize. I must say, I found it difficult to believe that a Constitutional scholar president would take this position. (Perhaps other president with, shall we say, less understanding of the Constitution might be more easily misled by advisors. I indeed hope that I have been mis-informed.

  12. Gary Hart Says:

    A quick, but by no means exhaustive, search reveals that President Obama, contrary to a number of campaign statements, has used “signing statements” on several occasions, especially regarding provisions in authorization or appropriations legislation with which he disagreed, suggesting that he would not be controlled by Congressional mandate. He has drawn criticism from a Democratic Congress for doing so.

  13. Reed Young Says:

    With all due respect, and admitting that I’ve read only about half of David Swanson’s book ‘Daybreak: Undoing the Imperial Presidency and Restoring a More Perfect Union,’ that is the currently authoritative text on the subject of un-Constitutionally expansive assertions of Executive Branch privilege. My reading of that, and my … perhaps excessive viewing of C-SPAN the past seven years leaves me quite certain that this President is much less a threat to the balance of powers than many current members of the Congress.

    I understand that confronting former colleagues will be more unpleasant than confronting the President, but if you really want to be of service to your nation, your attention should be on the Legislative Branch members who passively enabled Cheney-Bush’s war crimes. President Obama is not perfect, but he is better than most, better than the average member of Congress, and he has more than enough critics. If you really want to get back into the arena, pressure them to strictly enforce their prerogative to declare war; enforce FISA and strengthen its protections of individual liberties, especially the right to confront one’s accusers; and take every aspect of the right to conduct war away from corporations, for a start.

  14. Gary Hart Says:

    In response to Mr. Young, may I say that I seek a confrontation neither with the President nor with members of Congress. I do resist the extra-constitutional expansion of executive powers, through selective enforcement of statutes, regardless of party or president. And I have no need to “get back into the arena.” If I did I would seek the votes of the electorate. Unlike many of my former colleagues, I choose to continue to participate in the public debate as a citizen in any way I can add value or stimulate discussion or thought. I appreciate the recommendation as to how I should try to do this. Nevertheless, I’ll probably continue to do it in the best way I can. On the merits of the argument, I’m unclear exactly how Mr. Young thinks members of Congress are trying to usurp executive power. Rather, he is arguing that they are not carrying out their statutory mandate.

  15. Reed Young Says:

    The Framers’ plan was that the Legislative Branch would *vigilantly* guard its own powers against encroachment by the Executive Branch. That means they had a responsibility to enforce their subpoena power, even against Dick Cheney and Karl Rove, *before* those two war criminals left the Executive Branch. An Imperial Presidency is only possible with the cooperation of a Congress of obliging courtiers.

  16. Gary Hart Says:

    A Congress then of Mr. Cheney’s and Mr. Rove’s obedient partisans. The mantra of the day was: “I support the President.” No member of Congress takes an oath to support the president. All take an oath to uphold the Constitution of the United States. Shame on them.

  17. Edward Goldstick Says:

    NOTE: resubmitted with typos corrected…

    I agree with you wholeheartedly, Gary Hart (esp. your concise remarks at 2:09pm on 1/20/2010), but can you elaborate further on the important distinction between an unmitigated power grab and the simple search for efficacy…

    Here are a few questions that are predicated on the notion that the executive branch, the judiciary, and perhaps the citizenry should have a mechanism by which it can proactively and formally challenge the constitutionality of specific statutes and/or practices without necessitating the equivalent of an egregious act to bring such uncertainties and misdeeds to the light of day; in particular…

    1) Should the President have the capacity (and perhaps the obligation) to formally and publicly express how the enforcement of a particular law seems inconsistent with other statutory (and perhaps constitutional) prerogatives or obligations?

    2) Is it accurate to say that the Congress does not proactively submit its actions to review by the courts for their constitutional soundness, and do we need a relatively independent and expert body equivalent to OMB that would ‘vet’ new statutes as they are crafted and voted upon?

    3) Or does the US Constitution contain inherent logical inconsistencies (not unlike many religious texts) and, as such, it is simply our ‘burden’ to pursue the constant interpretation and mitigation of those contradictions and conflicts as circumstances require and our best abilities allow?

    My central concern is that the valuable latency and unremitting dialectic that the Founders (and their supporters) built into the Constitution seems increasingly at odds with a ever-churning political culture that does not encourage the patient and relatively dispassionate (and non-partisan) examination of complex and multifaceted issues with concrete, timely, and durable resolutions in policy as an outcome.

  18. Gary Hart Says:

    In response to Mr. Goldstick:
    1) The President presently has that capacity in the form of the “bully pulpit”, his platform and megaphone, and his dealings with Congress on a daily basis. His ultimate Constitutional authority is the veto with a public message supporting it.
    2) Congress has no authority to preemptively ask for a Supreme Court ruling on the Constitutionality of its proposed actions. Matters may come before the Court only if they are actual “cases or controversies.” Congress has multiple legal advisors to opine on Constitutional issues.
    3) The Constitution is very specific about what is legislative, what is executive, and what is judicial. Recent presidents imply don’t like its restrictions on their desire to act as they please.

  19. Edward Goldstick Says:

    A belated response to Mr. Hart:

    I can offer no concrete disagreement with your argument, and acknowledge that my conjectures are more the echo of the consternation that I sense when I see the efforts of well-intentioned people like Barack Obama, Joe Biden, Russ Feingold, Ron Paul and others (present company included) stifled by so many factors both structural and circumstantial (esp. as it pertains to the media… but that’s only one element of the tale of history being told with each passing day…).

    For what it is worth, over the past few days I read the new book by Garry Wills that is entitled “Bomb Power: The Modern Presidency and the National Security State”. I learned little that I did not already know, but the synthesis in one place is powerful; however, I was unaware of the seminal, if dubious, speech that Reagan’s AG, Ed Meese, gave at Tulane in 1987 that rather formally “launched” the expanded notion of the ‘unitary executive’ that we’ve all come to know (and some of us, question).

    The only caveat that I would offer to a blanket acceptance of your critique is echoed by Wills in his concluding chapter where he states that there have been overtures toward the establishment of a formal mechanism whereby the executive could formally and proactively challenge the illogic or inconsistency of a statute with regard to other constitutional imperatives without removing in any way the obligation of the executive to fulfill the statute in question until such time that the Supreme Court or the Congress would explicitly order otherwise. In my opinion, this would preempt the ability of the executive to arbitrarily ignore those obligations so clearly set forth in the document… especially those that explicitly attribute responsibilities and powers to the Court or the Congress primarily if not exclusively.

    I am no constitutional scholar, Mr. Hart, but I would insist most respectfully that there is an imperative for us to find a way for the Congress to renew its constitutional role and for the chief executive to respect that body without prejudice (though the political cost of doing so is, of course, a central conundrum, no?)…

    In any case, thank you for your efforts and please continue with them…

  20. Bryan Says:

    Sow the storm and reap the whirlwind. High-handed, imperial approaches to exercising his office is only to be expected of any US president. After all, have not the people of the USA demanded an emperor who merely happens to be called “president”, and have they not consistently made this demand for at least 80 years? Have not both Democrats and Republicans gleefully ignored the Constitution whenever either party found it to be inconvenient? Why complain now? Every extension of government power turns into an excuse for abuse. Every attempt for government to “fix” something will later be used by government to oppress. What is the complaint about? This is nothing but the natural consequence of insisting, for decade after decade, that government “take care” of every little problem. Ultimately, nanny will decide that nanny knows best, and nanny does not need the silly little rules the children are supposed to abide by.

  21. mizuno baseball gloves Says:

    When I look back now over my life and call to mind what I might have had simply for taking and did not take, my heart is like to break. – Akhenaton

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