War
Again and again, throughout American history, it has been the specter or the actual onset of war that has compelled presidents to expand their authorities -- almost never by legal congressional decree, but simply by unconstitutional actions that remained unchallenged. In fact, one war-time president, evidently knowing what he “needed” to do, exceeded the authority given him by a strict reading of the constitution, and not only acted, but did so before his congressional overseers could even be seated.
For Lincoln delayed the convocation of Congress from April 12, 1861, when Fort Sumter was fired upon, until July 1 lest rigid constitutionalists on the Hill try to stop him from doing what he deemed necessary to save the life of the nation. In his twelve weeks of executive grace, Lincoln ignored one law and constitutional provision after another. He assembled the militia, enlarged the Army and the Navy beyond their authorized strength, called out volunteers for three years’ service, spent public money without congressional appropriation, suspended habeas corpus, arrested people “represented” as involved in “disloyal” practices and instituted a naval blockade of the Confederacy -- measures which, he later told Congress, “whether strictly legal or not, were ventured upon under what appeared to be a popular demand and a public necessity; trusting then as now that Congress would readily ratify them.”
An interesting statement -- given the fact that he delayed the seating of Congress, seemingly for the very purpose of acting without congressional sanction, and given the powers he continued to assume even as the Congress was in session.
He asserted the right to proclaim martial law behind the lines, to arrest people without warrant, to seize property, to suppress newspapers, to prevent the use of the post office for “treasonable” correspondence, to emancipate slaves, to lay out a plan of reconstruction. His proclamations, executive orders and military regulations invaded fields previously the domain of legislative action. All this took place without a declaration of war by Congress.
That last point is especially telling -- as it was Lincoln himself, as a first-term representative, who made a name for himself arguing AGAINST the presidential war-making authorities assumed by then-President Polk.
Lincoln’s attack was provoked by a letter from W. H. Herndon, his law partner back home. “Let me first state,” Lincoln wrote Herndon, “what I understand to be your position. It is, that if it shall become necessary, to repel invasion, the President may, without the violation of the Constitution, cross the line and invade the territory of another country; and that, whether such necessity exists in any given case, the President is to be the sole judge.” … “Allow the President,” Lincoln continued, “to invade a neighboring nation, whenever he shall deem it necessary to repel an invasion … and you allow him to make war at pleasure. Study to see if you can fix any limit to his power in this respect.” Mexico was the immediate instance; but suppose, Lincoln said, a President “should choose to say he thinks it necessary to invade Canada, to prevent the British from invading us, how could you stop him?” If the presidential power to wage defensive war on his own decision were once conceded, how could Congress hold him back? “You may say to him, ‘I see no probability of the British invading us’ but he will say to you ‘be silent; I see it, if you dont.’” The reason why the Constitution had given the war-making power to Congress, Lincoln added, was because Kings had always been involving and impoverishing their people in wars. “This, our [constitutional] convention understood to be the most oppressive of all Kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us. But your view destroys the whole matter, and places our President where Kings have always stood.”
Thirteen years later, as President himself, Lincoln would be waging war without a Congressional declaration, acting very much like those Kings (and Queens) of old.
In such undertakings Lincoln had the enthusiastic collaboration of his Secretary of State, William H. Seward -- the same Seward who had been castigating Buchanan a year or two earlier for executive usurpation. Seward, who took over responsibility for internal security, was understood to have bragged to the British Minister: “My lord, I can touch a bell on my right hand and order the imprisonment of a citizen of Ohio; I can touch a bell again and order the imprisonment of a citizen of New York; and no power on earth, except that of the President, can release them. Can the Queen of England do so much?”
Violating the Constitution In Order to Preserve It
So how did Lincoln (and other Presidents in American history) defend these (and similar) actions? One key rhetorical strategy often employed is the assertion that sometimes the Constitution had to be violated if it is to be preserved.
This executive war power was founded first of all, [Lincoln] believed, in the solemn presidential oath to “preserve, protect, and defend the Constitution of the United States.” Taken literally, this could be seen both as a mighty obligation and as a mighty mandate. The oath “impressed upon me the duty of preserving by every indispensable means, that government -- that nation, of which the Constitution was the organic law.” If the President were sworn to preserve and protect the Constitution to the best of his ability, what limits were there on his duty to act if the nation were in danger?
I find this almost laughable. An oath to PRESERVE the Constitution gives one the authority to VIOLATE it? And I guess I’m not the only one, because, as usually happened after the unconstitutional assertion of presidential power, the other branches of government would attempt to rein it back in. As Schlesinger well summarizes:
Thus in the first half of the nineteenth century the war-making power assigned by the Constitution to Congress began to drain away in opposite directions -- on one side where the threat seemed to trivial to require congressional consent [i.e., the War with Mexico] and on the other where the threat seemed too imperative to permit congressional consent [i.e., the Civil War]. Through the ultimate triangularity of the system, power in both cases flowed toward the Presidency. But this did not mean that the presidential prerogative was growing by steady accretion. Nearly every President who extended the reach of the White House provoked a reaction toward a more restrictive theory of the Presidency, even if the reaction never quite cut presidential power back to its earlier level.
Here we see the ratchet effect described so well by Higgs in Crisis and Leviathan. I’m taking three new powers because of this crisis! Okay, but when the crisis is over we’re taking two of them back. This time, following the Civil War, it was the Supreme Court that took the most salient corrective action.
In ex parte Milligan in 1866 the Court escalated a sensible decision in a case involving habeas corpus and martial law into a grandiloquent repudiation of Lincoln’s theory of the war power. Where Lincoln had supposed that rebellion or invasion altered the application of the Constitution, the Court firmly declared that the Constitution worked “equally in war and in peace,” protecting “all classes of men, at all times, and under all circumstances.” In an almost explicit dismissal of the Locke-Jefferson-Lincoln idea that necessity might be a higher law than the Constitution, the Court said melodramatically:
“No doctrine involving more pernicious consequences was ever invented by wit of man than that any of [the Constitution’s] provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory on which it is based is false; for the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence.”
The Court, in its zeal to rebuke the Presidency, almost reversed Lincoln’s analogy about giving a limb to save a life: “A country preserved at the sacrifice of all the cardinal principles of liberty, is not worth the cost of preserving.”
There are two key aspects to this argument that are worth understanding. The first, of course, is that a government that assumes powers not granted to it is, in fact, no longer the government it once was. But deeper in this concept is the idea that the federal government is NOT the nation -- it is, indeed, an apparatus, set up by the true sovereigns -- originally, the States and now, by legal precedent and cultural extension, the people of those States. It would be like the prisoner locked in his jail cell, arguing that he had the right to leave because the prison was on fire. It may, indeed, be the right thing to let such a prisoner leave, but it is not he who should be deciding if he was free to leave, nor even the one to determine that the prison was on fire.
Not What, But Who
This is the absolute crux, and something that is often glossed over or obscured by those wielding otherwise rational arguments against it.
In 1955, the most thoughtful commentator of them all, Walter Lippmann, delivered himself in The Public Philosophy of a gloomy inquiry into what he conceived as the decline of liberal democracy. Strategic and diplomatic decisions, he said, called for professional knowledge and seasoned judgment. But representative assemblies and mass opinion had “converged upon the modern democracies to devitalize, to enfeeble, and to eviscerate the executive powers.” When hard issues of war and peace were up for decisions, “the executive and judicial departments, with their civil servants and technicians, have lost their power to decide.” Mass opinion, the new ruler, had one supreme instinct: always to oppose changes in the existing policy, whatever that policy might be. Mass democracy could not prepare for war in time of peace, nor negotiate peace in the midst of war.
“The unhappy truth is that the prevailing public opinion has been destructively wrong at the critical junctures. The people have imposed a veto upon the judgments of informed and responsible officials. They have compelled the governments, which usually knew what would have been wiser, or was necessary, or was more expedient, to be too late with too little, or too long with too much, too pacifist in peace and too bellicose in war, too neutralist or appeasing in negotiation or too intransigent. Mass opinion has acquired mounting power in this century. It has shown itself to be a dangerous master of decisions when the stakes are life and death.”
This was a devastating proposition. Could it be that the Founding Fathers had failed in their allocation of the war-making power because of innate disabilities in popular government itself?
The undertone of this particular example is the premise that the executive officials “know” what the right thing is to do; that they are flawless arbiters of what is wiser, necessary, or more expedient. History, I think, would argue otherwise. Often, they are corrupt, or motivated by politics, or just plain wrong in their decisions. When it comes to questions of war and peace, it seems to me that the appropriate question is not “what is best?” but “who decides?”
And, as an extension, should there actually be times in which the president “needs” to act in excess of his constitutional and legal authority -- a crisis so time-sensitive and severe that no other action will possibly do -- there is always the option, that evidently Lincoln availed himself of, of usurping the necessary power.
Usurpation seemed … less dangerous, both because it was less likely to happen and, when it did happen, it created no constitutional precedents. The President who usurped power in an emergency would be “careful to see that the necessity which he pleads to excuse his act (not to justify his power) is indeed invincible.” But the President who could claim legal sanction for extreme acts would move with less caution, would be less scrupulous about weighing the necessity and would set dangerous precedents for the future. Let extreme actions, in short, stand or fall as they related to particular national crises rather than incorporate them into a legal system, where they could be applied thereafter without regard to the gravity of the crisis. Would such actions, even when not permitted by the Constitution, be in a real sense faithful to its spirit when necessary to its preservation?
In other words, if truly an emergency, then act, and history will judge you right or wrong. But if given legal powers to deal with one emergency, there is no way to stop their use in the future, even outside of emergencies. Usurpation is much less cut and dried, but certainly more friendly to liberty and counter to the expansion of the Imperial Presidency.
It’s Politics All The Way Down
One of the core lessons I’ve come to understand from my reading of history is that things are almost always done for political reasons of the moment, and not for some higher purpose, and that those motivations are almost never preserved in our collective historical understanding. Case in point, the impeachment of Andrew Johnson. The Articles of Impeachment cite his violation of the Tenure of Office Act when he fired Edwin Stanton as his Secretary of War.
The Tenure of Office Act, however, was only the pretext. The essential congressional purpose was political: it was to bring to an end Johnson’s systemic sabotage of Reconstruction. In pursuing this objective, Johnson’s opponents invoked a very broad theory of impeachment. According to this view, the demonstration that abuse of power injured the public interest or subverted some fundamental principle of government would suffice for conviction, even if there had been no violation of positive law. Johnson’s defenders put forward a correspondingly narrow theory, according to which impeachment was justified only if an indictable crime had been committed. The narrow theory had little historical warrant, and the broad theory, as expounded in Congress, was exceedingly broad indeed, opening the way to congressional removal of a President for the sin, not usually mortal, of holding views which a congressional majority disliked.
This is but one example, albeit an interesting one in the context of me just recently listening to oral arguments in the first impeachment of Donald Trump, in which one side argued that impeachment required an indictable crime, while the other argued that a more generalized abuse of power was a sufficient standard. But the point, then as now, is that the motivations are political, not principled.
Another example has to do with congressional access to executive branch documents during the Truman administration -- a subject that has a rich constitutional history that well predates Trump and even Truman.
A few days later Truman issued a general order to the executive branch to refer future congressional requests for employee loyalty records to the office of the President, where determination would be made according to “the public interest in the particular case.” The House retaliated by adopting a resolution requiring executive disclosure to House committees of all information necessary “to enable them to properly perform the duties delegated to them by the Congress.” The vote was 219 to 152. An especially ardent supporter of the resolution was Congressman Richard M. Nixon of California. Truman’s contention that the President should judge what information could be released to Congress, Nixon said, “cannot stand from a constitutional standpoint.” It would mean that “the President could have arbitrarily issued an Executive order in the Meyers case, the Teapot Dome case, or any other case denying the Congress of the United States information it needed to conduct an investigation of the executive department and the Congress would have no right to question the decision.”
This is taking place during the McCarthy era, and the dispute cuts clearly along not principled, but political lines -- with no clearer evidence needed than the ardent support of Richard Nixon who, years later, as president, would take a very different view of the same subject.
Indeed, for most people … the constitutional and institutional issues were make-believe. It was largely a matter, as Averell Harriman said, “of whose ox is getting gored: who is in or out of power, and what actions either side may want.” When Nixon was in the opposition, there had been no more earnest critic of presidential presumption. Each side dressed its argument in grand constitutional and institutional terms, but their contention was like that of the two drunken men described long ago by Lincoln who got into a fight with their greatcoats on until each fought himself out of his own coat and into the coat of the other.
Nixon and Trump
And speaking of Nixon, this book, written in 1973, does a fair job describing how that particular president began the drive towards and prefigured many of the political battles we find ourselves facing today.
The President, it could only be supposed, suffered from delusions of persecution. In three presidential elections Nixon had the support of eighty percent of the press. Truman, who endured far more savage and unrelenting criticism than Nixon had before 1973, took it as part of political life, which he correctly understood to be a high-risk occupation: “If you can’t stand the heat, stay out of the kitchen.” In 1972, as the Press Club report had it, “the national press corps was tougher on George McGovern than it was on Richard Nixon.” Nevertheless Nixon after the election complained bitterly to the head of the Associated Press bureau in Washington about “four years of the most devastating attacks on TV, in much of the media, in editorials and columns.” He saw himself as the pitiful and helpless victim of a media conspiracy -- as someone who existed, in his famous phrase of 1962, for the press to kick around.
In this regard, Nixon seems to have exhibited a narcissism similar to Trump -- a persecution complex either honestly believed or feigned -- and the two of them seem so unlike Truman. If you can’t stand the heat, stay out of the kitchen, indeed.
But Nixon represents other disturbing precedents as well.
Nixon, it was said, admired no contemporary statesman so much as [France’s plebiscite President Charles] de Gaulle. Certainly after his re-election he began what can be profitably seen as an attempt to establish a quasi-Gaullist regime in the United States. Instead of conciliating the defeated minority, he was cold and unforgiving. Instead of placating Congress, he confronted it with executive faits accomplis taken without explanation. The mandate became the source of wider power than any President had ever claimed before. Whether a conscious or unconscious revolutionary, Nixon was carrying the imperial Presidency toward its ultimate form in the plebiscitary Presidency -- with the President accountable only one every four years, shielded in the years between elections from congressional and public harassment, empowered by his mandate to make war or to make peace, to spend or to impound, to give out information or to hold it back, superseding congressional legislation by executive order, all in the name of a majority whose choice must prevail till it made another choice four years later -- unless it wished to embark on the drastic and improbable course of impeachment. Here at last was the “elective kingship” that Henry Jones Ford had foreseen three quarters of a century earlier.
I can’t count the number of times I heard President Trump’s lawyers argue in his first impeachment trial that the “Democrat Party” was trying to “undo the results of an election.” Seems like they clearly believed -- or at least took on that belief for political reasons -- that the president is answerable only to the voters every four years, and that even impeachment is somehow suspect or illegitimate.
But how is the electorate to know if the imperial president is doing good or ill if that same imperial president has the power to hide the truth from them?
And there is yet another parallel between Nixon and Trump -- this one more in the sense of the criminals who have surrounded and benefitted from each administration.
There had been scandals in the White House before; in fact, they came every half century -- the Grant scandals of 1873, the Harding scandals of 1923, the Nixon scandals of 1973. But the crookedness in the simple days of Grant and of Harding was old-fashioned graft. It was politics as defined by Ambrose Bierce in The Devil’s Dictionary -- “the conduct of public affairs for private advantage.” Repellent as it might be, stealing money for oneself was in an old American tradition. What distinguished the Nixon crowd was, in a sense, the purity of their motives. Far from being jolly rogues like the cronies of Grant and Harding, they tended to be thin-lipped, hard-eyed, crew-cut pharisaical types who did not drink or smoke or visit call girls and spent a lot of time in sanctimonious complaint about the permissive society. They were not thieves, except by the way; rather they were moralistic opportunists who had been led to understand that the Presidency was above the law and that the end justified the means “What they were seeking to steal,” said Senator Ervin, “was not the jewels, money or other property of American citizens, but something much more valuable -- their most precious heritage, the right to vote in a free election.” Fanaticism could be a greater danger than graft to a free state.
Fifty years from 1973 will be 2023, when America will be heading into a presidential election that may very well test how much that danger has grown.
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