By Kevin D. Williamson
Wednesday, November 27, 2019
‘Presidents are not kings,” Judge Ketanji Brown Jackson
wrote in the course of ordering former White House counsel Don McGahn to comply
with a congressional demand that he testify in the impeachment inquiry. Judge
Jackson is perhaps too optimistic: Absolutist rhetoric notwithstanding, few if
any kings of old ever aspired to the scope of real-world power exercised by
American presidents. There has never been a kingdom quite like this one.
The presidency is the greatest domestic threat to liberty
that this country faces today — not President Donald Trump, nor the president
who preceded him, nor the one who will succeed him, but the presidency itself.
It is right that so much attention has been given to the character of the
current president, but more important is the character of the office he
occupies. Those who see in Donald Trump a would-be strongman and autocrat owe
themselves some careful meditation upon the nature of the presidency that he
inherited from his predecessors. Many went before him to prepare the way.
John Adams was deservedly ridiculed for his desire to
invest the American executive with a grandiose title of address so that he
might stand in similar dignity to the princes of Europe. (Adams proposed “His
Highness,” and the portly politician’s enemies mocked him as “His Rotundity.”)
But the pomp and ceremony attached to the modern presidency, to say nothing of
the practical power attached to it, would have made him blush. The
aggrandizement of the presidency has been a bipartisan project in the service
of ideological and political goals both progressive and conservative.
The Right has given us the notion that the president
enjoys plenipotentiary power over foreign affairs and discretion over military
policy that is effectively imperial, a word that is derived, appropriately
enough, from the Latin word (imperator) for “commander-in-chief.” As a
constitutional question, this is rooted in the mistaken belief that the three
branches of government are “coequal,” which they manifestly are not. Under our
constitutional system, the president is empowered only to execute the laws that
Congress makes. He does not have the power to appropriate money or to make law;
he does not even enjoy independent power in the military and diplomatic
spheres, which is why Congress and not the president has the power to declare
war, ratify a treaty, etc. And, as President Trump is being taught right at the
moment, Congress has the power to impeach a president and to remove him from
office, a power that it also has over all of his appointees and all federal
judges. The Right has pushed the notion of presidential imperiality so far that
some conservative legal thinkers, including my friend Andrew C. McCarthy, have
argued that the president is effectively above the law — immune from mere
statutes — when he is engaged in his constitutional duties. Under the “unitary
executive” theory, the U.S. government is like that famous engraving of the
composite god-king on the cover of Leviathan, with the president’s
mystical immunity communicated down through the bureaucratic ranks to invest
the lowliest functionary with that “coequal” juju.
Conservatives may have had some plausible legal argument
for this understanding of the presidency — if there is one thing I know about
politics, it is that a plausible legal argument can be offered for anything,
and such motivated reasoning is of little value — but it also is the case that
conservatives have generally favored a more assertive U.S. military stance and
diplomatic policy, and they have concluded, based on good evidence, that they
are more likely to get this from a president looking to make a name for himself
than from a committee of elderly politicians concerned about what another war
might to do the price of corn, how it might play back in Peoria, what it might
cost, etc. A presidency lasts four or eight years (unless you are Franklin
Roosevelt), but a Senate career can last decades and decades.
That used to make senators a little more circumspect,
before all of them starting running for president at once. It is hard to blame
them: If Joe Biden can get as close to the presidency as he has — and may yet!
— then there is hope for every half-bright lawyer from sea to shining sea. And
it is the case that the war fever that has infected the presidency has spread
somewhat to the Senate, too. All that power is seductive: Senator Obama just
about peed himself out of fear that Dick Cheney might peek at somebody’s
library card; President Obama created a hit list of Americans he intended to
assassinate and boasted about it in the New York Times.
The Left has aggrandized the presidency because it wishes
to rule the country administratively rather than through the clunky process by
which lawmakers go about making laws in a thoroughly unscientific and
unprofessional fashion. That we might return to such a state of affairs is the
dread that currently keeps American progressives up at night: Writing in Vox,
that great dispassionate explainer, Ian Millhiser raises the alarm that Brett
Kavanaugh seems to be taking a more restrictive view of the nondelegation
doctrine, which is to say, that the Supreme Court might be poised to insist
that lawmakers go back to writing the laws instead of sending memos over to the
White House instructing the bureaucracies to write the laws and call them
“regulations.” The headline: “Brett Kavanaugh’s latest opinion should terrify
Democrats.”
(“Be terrified!” he explained.)
Various progressives have argued over the years that we
should extend presidential terms and expand presidential powers in order to
make governance more effective, which in this case is a near-synonym for
unopposable. They look longingly at the parliamentary systems under
which prime ministers enjoy both legislative and executive power, and toward
nondemocratic bureaucracies in which empowered expert managers rule by
technocratic fiat (Thomas Friedman’s “China for a Day” fantasy). This is partly
because they are confident that they will get their way more often under such
procedures — look at the nation’s universities and corporate human-resources
departments if you doubt that progressives know how to work a bureaucracy — and
partly because they maintain a delusional faith in what we are expected to call
with straight faces “political science.” They adhere to rationalism, in
Michael Oakeshott’s sense of that word, and hence must regard democratic
compromises (along with checks and balances and formal limits on state power)
as deviations from the optimum policy they believe they can deduce logically.
And so we have arrived at a practice of government in
which the executive can make war independently, refuse to comply with the law
and congressional investigations, make or break international agreements, set
the terms of service in insurance markets, destroy banks and other businesses
on a whim, and do almost anything else it might wish, with powers great and
minute, from assassinating American citizens to specifying the font size on
mandatory OSHA posters displayed in the breakroom at the XYZ Corp. of
Poughkeepsie.
The remedy for this, we are told, is “political,” meaning
that misbehaving presidents can be defeated at the polls or, if necessary,
impeached and removed from office. But surely these cannot be the only controls
on the president. Though norms and traditions are fine, we need some
hard-and-fast rules about what presidents can and cannot do and some clarity
about our legal and constitutional basis for those rules. And most of all, we
need a presidency that is reduced, one that is put back in its constitutional
box and limited to its constitutional role: seeing to the faithful execution of
the laws.
But to take the presidency down a peg, Congress has to
step up and reclaim its institutional self-respect. That is not the same thing
as self-importance — the only commodity of which Congress is running a
long-term surplus.
“Presidents are not kings,” Judge Jackson wrote. But they
will be if you let them.
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