A Question of Power: The Imperial Presidency

President_Barack_ObamaBelow is my column this week in American Legion Magazine which juxtaposed my view of the Obama presidency with the opposing view of William Howell, the Sydney Stein Professor in American Politics at the University of Chicago. Notably, a ranking member of the Administration this week wrote that more executive actions are being planned by the White House. These opposing articles capture the two very different perspectives of the evolving use of executive power in our tripartite system.

A Question of Power: The Imperial Presidency

When James Madison shaped a new constitutional system for the United States, he and his fellow framers had one overriding fear: tyranny.

They wanted to divide power between three branches and create lines of separation that prevented the concentration of power in any single branch. The framers based their ideas on an understanding of human nature – and human weakness. They tried to create a system in which ambition would check ambition. However, they knew that citizens can be distracted or deceived into giving up their very freedom. Madison warned future generations that “if Tyranny and Oppression come to this land, it will be in the guise of fighting a foreign enemy.” The framers knew how effective fear can be to induce citizens to give up their liberties. Recent years have proven them once again prophetic in their warnings.

To this day, many Americans misunderstand the separation of powers as simply a division of authority between three branches of government. In fact, it was intended as a protection not of institutional but of individual rights, by preventing any branch from assuming enough power to become tyrannical. No branch is supposed to have enough power to govern alone. Once power becomes concentrated in the hands of a president, citizens are left only with the assurance that such unchecked power will be used wisely – a Faustian bargain the framers repeatedly warned us never to accept. Benjamin Franklin said it best when he warned that “they who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”

Despite these warnings, many people have embraced largely unchecked presidential powers under the assurance that the rising security state will keep them safe. The shift of power to the presidency certainly did not start with President Barack Obama. To the contrary, this trend has been gaining ground for decades. But it has accelerated under Obama, who has succeeded to a degree that would have made Richard Nixon blush. Indeed, Obama may be the president Nixon always wanted to be.

I do not believe that Obama is (or wants to be) a tyrant. However, his unilateral actions are redrawing the lines of separation in our system in a way that I believe could prove destabilizing and even dangerous in the future.

While the “imperial presidency” has been discussed as a danger in our country since its founding, it is a term most associated with Nixon. Presidents such as Andrew Jackson and Franklin Delano Roosevelt showed similar tendencies. Often, war is cited as the reason for extraconstitutional action, such as Abraham Lincoln’s suspension of habeas corpus. “Imperial presidency” is not a term that reflects an actual royal ambition or the suspension of term limits. Rather, it refers to a model of the presidency that allows for a wide array of unilateral actions and largely unchecked powers.

What is fascinating is that Nixon was largely unsuccessful in accomplishing this dream of a presidency with robust and largely unlimited powers. Indeed, many of the unchecked powers claimed by Nixon became the basis for articles in his impeachment and led to his resignation on Aug. 9, 1974.

Four decades ago, Nixon was halted in his determined effort to create an imperial presidency with unilateral powers and privileges. But in 2013, Obama wields those very same powers openly and without serious opposition.

Surveillance. Nixon’s use of warrantless surveillance was cited as one of his greatest abuses and led to the creation of the special Foreign Intelligence Surveillance Court. Obama, however, has expanded warrantless surveillance programs to a degree that dwarfs anything Nixon imagined, including initiating a program that captured communications of virtually every U.S. citizen.

War. Nixon’s impeachment included the charge that he evaded Congress’ sole authority to declare war by invading Cambodia. Obama went even further in the Libyan war, declaring that he alone defines what is a “war” for the purposes of triggering the constitutional provisions on declarations of Congress. That position effectively converts the entire provision in Article I, Section 8 of the Constitution (“Congress shall have power to … declare War”) into a discretionary power of the president.

Kill lists. Nixon ordered a burglary to find evidence to use against Daniel Ellsberg, who leaked the Pentagon Papers, and was accused of a secret plot to have the White House “plumbers” “incapacitate” him in a physical attack. People were outraged. Yet Obama has asserted the right to kill any U.S. citizen without a charge, let alone conviction, based on his sole authority. Internal documents state that he has a right to kill a citizen even when he lacks “clear evidence (of) a specific attack” being planned.

Reporters/whistle-blowers. Nixon was known for his attacks on whistleblowers, using the Espionage Act of 1917 to bring a rare criminal case against Ellsberg. He was vilified for this abuse of the law, but Obama has brought twice as many such prosecutions as all prior presidents combined. Nixon was accused of putting a few reporters under surveillance. The Obama administration has admitted to putting Associated Press reporters, as well as a Fox reporter, under surveillance.

Obstruction of Congress. Nixon was cited for various efforts to obstruct or mislead congressional investigators. The Obama administration has repeatedly refused to give evidence sought by oversight committees in a variety of scandals. In one case, Congress voted to move forward with criminal contempt charges against Attorney General Eric Holder, which Holder’s own Justice Department blocked. In another case, Director of National Intelligence James Clapper lied before Congress on the surveillance programs, and later said that he offered the least untruthful statement he could think of. The Obama administration, however, refuses to investigate Clapper for perjury, let alone fire him. Recently, the administration was accused of searching Senate computers in an investigation of the CIA and trying to intimidate congressional investigators.

These examples are simply those connected with the growing internal security state. Other characteristics of an imperial presidency are equally evident, particularly in the repeated circumvention of Congress in ordering unilateral changes to federal law or suspending federal laws.

While many hail Obama for not taking “no” for an answer from Congress in areas such as health care and immigration reform, they may rue the day another president uses the same powers to negate environmental or anti-discrimination laws.

It has long been said that one of the scariest statements is, “Trust us, we’re from the government.” The deep American distrust for such a claim was shared by the framers, who rejected a government based on assurances of the best intentions. Madison famously warned, “If men were angels, no government would be necessary.” In other words, we have a government that refuses to accept promises of good behavior or motivations from politicians.

Time and time again, Obama has returned to the theme that there is nothing to worry about in surveillance or wars or even the killing of citizens because he promises to use the powers wisely. The administration has been particularly adept in creating internal “committees” to suggest some form of due process before citizens are vaporized or other unchecked powers are used by the president. Since the president creates these committees and appoints their members out of his own authority, he can simply ignore their recommendations. It is little more than the promise of best intentions – the very promise the framers warned us never to accept from our government.

In the end, we have accepted the lure of personality over principle in allowing the expansion of these powers. Obama will not be our last president, but these powers are unlikely to be voluntarily surrendered by his successors. There is a radical change occurring in our system, and we may be at a critical constitutional tipping point in the establishment of an imperial presidency in the coming years.

The danger of this concentration of authority is made more acute by the failure of federal courts to perform their vital function in confining the branches to their constitutional spaces. Federal courts in the past few decades have maintained an increasing position of avoidance in separation-of-powers cases, leaving it to the political branches to fight over turf. Courts now routinely block litigants, including members of Congress, from even being heard on constitutional violations. Years ago, I represented Democratic and Republican members (both conservative and liberal) challenging the Libyan war. They were denied even a hearing.
Congress has proved equally passive, if not inert. Democrats have remained silent in the face of policies that challenge core values of privacy and war, as did Republicans under George W. Bush. That interbranch tension envisioned by Madison has gradually dissipated. Individual ambition of politicians has replaced institutional ambition, leaving many to curry favor with the White House as legislative powers are drained away by an increasingly powerful president. As that power increases, there is more pressure on politicians to yield in new areas.

This downward spiral may have reached its ultimate expression this year. Framers such as Madison would have been mortified by the scene from the most recent State of the Union address. Obama appeared before a joint session of Congress (and members of the Supreme Court) to announce that he intended to go it alone in achieving his policy goals, refusing to yield to the actions of Congress. One would have expected an outcry, or at least stony silence, from a branch that was being told it would be circumvented. Instead, there was rapturous applause that bordered on a collective expression of institutional self-loathing.

Obama has made it clear that he simply will not take “no” for an answer. When Congress recently refused to pass the DREAM Act to change immigration laws to protect potentially millions of deportable individuals, he simply ordered the very same measures on his own authority. The same unilateral measures were ordered in health care, drug enforcement, online gambling and other areas. The failure of Congress to consent to executive demands was followed by the same measures being ordered on the basis of Obama’s inherent authority. Under this approach, Congress is being reduced to an almost decorative element in governance – free to approve but not to block presidential demands.

While Congress clearly retains powers, its members are increasingly finding that discretionary funds and powers blunt efforts to change government programs. Even Congress’ power of the purse has become discretionary with the president. When Congress resisted demands of the president on health care, Obama simply shifted $454 million in funds from the purpose mandated by Congress to his own purpose. When he decided not to consult with Congress on the Libyan war, he simply spent roughly a billion dollars on a war neither declared nor funded by Congress.

Such circumvention – and the new presidential powers – create a perfect storm within the Madisonian system. It raises the very prospect the framers thought they blocked through the separation of powers: a president who can effectively rule alone.
We often refer to ourselves as the “land of the free,” as if that status were self-evident. We rarely ask ourselves what those freedoms are and how they have been abridged. Our self-image can border on self-delusion when we take stock of the status of many rights.

We have learned of a massive surveillance program in which every citizen has had telephonic and email data captured by the government. Every citizen has been warned that the president may kill them on his own authority without a charge, let alone a conviction. We have a secret court that approves thousands of secret searches every year and a federal court system that increasingly allows the use of secret evidence. We have a new Obama-era law, the National Defense Authorization Act, that allows for the indefinite detention of people by the government and, while exempted from mandatory detention, allows for such detention of citizens. We still have a detention center at Guantanamo Bay, established by George W. Bush, just over our border to avoid the jurisdiction of U.S. courts. It allows the president to choose who gets a real trial, who gets a legally dubious military tribunal, or who gets no trial at all. While seeking to close the facility, Obama has continued to assert the right to send people to military tribunals on his sole authority – thereby stripping them of core legal protections.

While the erosion of freedoms in the United States has occurred with nary a whimper of regret in this country, it has not gone unnoticed abroad. The United States is now widely viewed as a hypocrite on the subject of human rights and civil liberties. This year, our nation fell to 46th in the world on press freedoms (behind the former Soviet republics of Lithuania and Latvia as well as Romania, Poland, Czechoslovakia, Ghana, South Africa and El Salvador), according to a recent study by Reporters Without Borders. Another study this year counts the United States as an “enemy of Internet freedom” with countries such as Iran, China and North Korea.

When the full mosaic of new governmental powers is considered, and the full array of rights curtailed in the United States, we are left with a disturbing question of self-identity. We more often seem to define ourselves by what we are not than by what we are.
In the summer of 1787, a telling moment occurred after a crowd gathered around Independence Hall to learn what type of government had been created for the new nation. When Benjamin Franklin walked out of the Constitutional Convention, Elizabeth Powel could wait no longer. Franklin was one of the best known of the framers working on the new U.S. Constitution. Powel ran up to Franklin and asked, “Well, Doctor, what have we got, a republic or a monarchy?” Franklin turned to her and said what are perhaps the most chilling words uttered by any framer: “A republic, Madam, if you can keep it.”

It may be that it is not the presidency that has changed. We have changed. As a nation, we seem to have grown almost bored with rights like privacy and due process. We have been passive and pedestrian in watching the rise of an uber-presidency. We no longer view ourselves as directing our government, but as merely bystanders watching matters outside our control.
Worse yet, we seem to have lost not just our identity but even our interest in governance. It was a republic when Franklin was stopped by Powel.

I am not sure that most citizens today would even have stopped him to ask. “Democracy … soon wastes, exhausts and murders itself,” John Adams once said. “There was never a democracy yet that did not commit suicide.”
What is truly sad is that if one of the greatest republics in history did die, it is not clear if anyone would even notice its passing.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and frequently appears before Congress as a witness on constitutional issues. He is the host of http://www.jonathanturley.org, an award-winning legal and policy blog.

May 20, 2014 American Legion Magazine

245 thoughts on “A Question of Power: The Imperial Presidency

  1. @Bob Esq.

    In his own words at the State of Union Speech, Obama declaring that he was going to circumvent congress(and the Constitution) amounts to outright treason.

    The POTUS took an oath to obey and defend the Constitution and laws of the US, yet in his own words he declared that he planned to “go around” the legal constitutional process of passing and implementing laws.

    Somewhere further up someone complained that JT wanted a “completely political” solution.

    THAT IS EXACTLY what our founding fathers and the Constitution intended. You may not like it because it does not pass in Congress, i.e. the will of “We the People”, but using new and re-interpreted regulations and Executive orders to change existing laws, created new laws, or declare that the Executive Branch will not enforce a particular law because they do not like it, amounts to nothing short of a dictatorship.

    If you desire the outcome, no matter how un-constitutional the methods used by the President to achieve it, then you too are guilty of treason. Plain and simple.

    The fact that Obama has had the Pentagon drawn up plans to use the military against civil unrest or revolt. Don’t believe me?

    Directive No. 3025.18, “Defense Support of Civil Authorities,” was issued Dec. 29, 2010, and states that U.S. commanders “are provided emergency authority under this directive.”

    http://www.washingtontimes.com/news/2014/may/28/inside-the-ring-directive-outlines-obamas-policy-t/?page=all

    Is this why all the Federal Agencies, such as the recent announcement by the USDA, are arming up with 30 Shot Clip Sub Machine?

    What the hell do US Government Meat inspectors need with 30 shot Sub Machine guns?

    Jim Rose

  2. “This downward spiral may have reached its ultimate expression this year. Framers such as Madison would have been mortified by the scene from the most recent State of the Union address. Obama appeared before a joint session of Congress (and members of the Supreme Court) to announce that he intended to go it alone in achieving his policy goals, refusing to yield to the actions of Congress. One would have expected an outcry, or at least stony silence, from a branch that was being told it would be circumvented. Instead, there was rapturous applause that bordered on a collective expression of institutional self-loathing.”

    Outstanding!

  3. Where do you find all this redistribution mandated in the Constitution? It does not exist. The Founders NEVER wrote of or mandated redistribution of wealth. The Founders understood self-reliance. General Welfare (not individual) and the right to private property preclude all redistribution. Sorry but you’re more than welcome to pursue your charitable interests in the private sector. Go start a charity. Stop taxing other people so you can “feel good” about yourselves. Nowhere does the Constitution say “take money from one man to give it to another.” Are you sure you didn’t espouse the Manifesto?

    From welfare and food stamps, HHS and HUD to social services, Social Security, Medicare, affirmative action and public school, etc., it’s all unconstitutional redistribution of wealth.

    You denigrate Republicans, how about understanding the “blessings of liberty” and the Constitution, including the right to private property.

    Is taxation for redistribution a “blessing of liberty?”

    That dudn’t make any sense!

  4. Paul – “pilot programs”, “in addition”, “addressing current gaps”, “reducing overlap” it all gets lost. We’ve explained it ad nauseum, but you know that there will be some who will come out with, “So, what you’re saying is that Republicans don’t want to feed black kids?” Words fail me.

  5. Feynman: I don’t the point has gotten across that this pilot program is IN ADDITION to the current summer lunch program. The pilot was specifically designed for rural kids, because that is where the gap is. So . . . obviously, it would not include urban kids. We are specifically supposed to avoid overlap in programs.

  6. Have you ever thought about publishing an ebook or guest authoring on other blogs?

    I have a blog centered on the same subjects you discuss and would really like to have you share some stories/information.
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  7. No Karen, I am not telling you that only city and suburban kids get fed, and rural kids that are spread out are just out of luck. I am telling you that the House purposely eliminated urban children from the pilot program. Further, the administration asked for $30M to fund the pilot program for all children. The House cut the request by 10% and sliced away all the urban kids.

    Somewhere Paul Ryan is smiling. Doesn’t he believe that all these programs are worse than slavery?

    I’m uncertain about your position, however. Not too long ago, you took the position that the school lunch program was fatally flawed and should be ended – not fixed, ended. The lunches had too few calories and there was no adequate monitoring of children who could afford to buy their lunch but got a free one.

  8. Rafflaw:

    The pilot program for rural kids was in ADDITION to the summer lunch program, not INSTEAD of it.

    The reason why all other kids were excluded is that the summer lunch program was already for them.

    But rural kids have a unique problem where they are spread out, and they were not getting enough nutrition.

    It figures that Republicans try to help feed hungry kids and get labelled racists.

    But how many will hear about the crucial “in addition to” phrase, versus the good ‘ole “Republicans are racists and want urban (i.e. black) kids to starve” because of the viral spread of misinformation?

  9. Feynman:

    I have very clearly addressed how Politico completely missed that the rural program was a pilot aimed at addressing a gap IN ADDITION to the summer lunch program that also fed city kids.

    I have asked you to comment on the fact that it is IN ADDITION to instead of INSTEAD of, which obviously makes a big difference.

    But you just keep reposting the blog to which you have already referred.

    The House did not INCREASE funding.

    Are you actually telling me that only city and suburban kids get fed, and rural kids that are spread out are just out of luck? Because this pilot program addressed a need.

  10. I see that Karen has the bad habit of not telling the whole truth. She said the Washington Times was sold in 2010. She seems to give the impression that the sale meant that it is not a Moonie paper. In FACT, it was sold to bring the paper closer to the church’s views, NOT to make it a real newspaper. It is now owned by officials of the church and it will reflect its views in reporting, if that is what one can call it.

  11. feynman,
    it is apparent that the GOP has some explaining to do by excluding the urban poor in the this so-called “pilot” program.
    The Chicago way Nick?? Really?

    • Oddly enough a lot of people are ‘eliminated’ from pilot programs. Think of it as an alpha test, before the beta test. The Dept of Educ ran some pilot projects a couple years back, only select schools in selected states could apply. They were testing the program out. That is why you pilot it.

  12. The original 2010 mandate read, “Section 749(g) directed that the Secretary of Agriculture shall carry out demonstration projects to develop and test methods of providing access to food for children in urban and rural areas during the summer months when schools are not in regular session to reduce or eliminate the food insecurity and hunger of children; and to improve the nutritional status of children.”

    “Democrats were surprised to see urban children were excluded,” wrote Politico’s David Rogers. “And the GOP had some trouble explaining the history itself. But a spokeswoman confirmed that the intent of the bill is a pilot project in ‘rural areas’ only.”

    “I guess that is surprising,” said Kevin Drum at Mother Jones. “Usually they’re a little more subtle in their contempt for poor people in urban areas.”

    “Poor white kids will get extra money for meals when school is out of session,” Drum said. “Poor black kids won’t.”

    ________________________________________________

    The administration asked for $30 million to continue the effort to reach nutritionally vulnerable children. The House replied by declining to fund the White House program, but offering $27 million for a pilot program intended to provide nutritional assistance to the children of the rural poor.

    That’s some bad legislation.

  13. I am so curious. Can you please explain to me why addressing a gap that allowed rural kids to go hungry in a pilot program, in ADDITION to a summer lunch program that also feeds city kids is somehow racist?

    Because I would really like to know how fixing a gap in policy that was letting kids go hungry is racist.

    Don’t you care about childhood hunger?

  14. Feynman:

    It is irresponsible to spread misinformation. Prejudiced people refuse to research the facts. And then they excuse their prejudice as a virtue.

    But prejudice does not lend itself to mature discussion about the issues.

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