Power Above Principle:How Conservatives Came to Embrace Presidential Power

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Power Above Principle:How Conservatives Came to Embrace Power Above Principle:How Conservatives Came to Embrace

Presidential Power Presidential Power

Michael A. Genovese

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Power Above Principle:

How Conservatives Came to Embrace Presidential Power

MICHAEL A. GENOVESE

RESIDENT, GLOBAL POLICY INSTITUTE

OYOLA MARYMOUNT UNIVERSITY

“When the President does it, that means that it is not illegal.”

Richard M. Nixon, Nixon-Frost Interview

“I have an Article 2 where I have the right to do whatever I want as

President.”

Donald J. Trump, July 23, 2019

“And if a president does something which he believes will help him

get elected, in the public interest, that cannot be the kind of quid pro

quo that results in impeachment.”

Alan Dershowitz, January 30, 2020

There was a time, when there was a healthy debate in the United States

over the size, scope, and power of the American presidency.

Lamentably,

that debate is all but over.

In the early twentieth century, the United States had a presidency limited

in size, scope, and power.

The U.S. was only just emerging as a world

power, and given the demands placed upon the office as well as the more

limited public expectations, the presidency could be smaller, less powerful,

and less ubiquitous.

But in the aftermath of the Great Depression and then World War II,

Americans began to embrace presidential power as the solution to the

*Substantial portions of: MICHAEL A. GENOVESE, THE PRESIDENTIAL DILEMMA: REVISITING

DEMOCRATIC LEADERSHIP IN THE AMERICAN SYSTEM (3rd ed. 2011), have been reproduced

in this work with permission of The Licensor through PLSclear.

1. William P. Marshall, Eleven Reasons Why Presidential Power Inevitably Expands and Why It

Matters, 88 B.U.

L. REV. 505, 507-08 (2008).

2. Id. at 506.

3. David Gartner, Foreign Relations, Strategic Doctrine, and Presidential Power, 63 A

LA. L.

REV. 499, 509-11, 513-16, 526 (2012).

4. Id. at

508, 529.

Genovese: Power Above Principle:How Conservatives Came to Embrace President

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118 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 47

problems of government.

While the Constitution creates a limited

presidency that is enshrined within a separation of power and check and

balance system, as the United States grew into an international power, so too

did the presidency grow in its power.

Initially, conservatives opposed the

rise of presidential dominance, favoring a more balanced and

congressionally-driven model of governance.

Eventually, conservatives

began to migrate towards embracing a big presidency as a tool to achieving

conservative ends.

This migration began alongside the Cold War, when

conservatives championed a muscular foreign policy presidency to stop the

rise of Communism.

Then, with the presidency of Ronald Reagan,

conservatives began to see the virtues of a big presidency in domestic policy

as well.

This trend continued with George W. Bush and the post-9/11

presidency, where claims of plenary power unencumbered by constitutional

restraints or congressional and judicial oversight, posited a “unitary

executive” theory of presidential power that was both imperial and divorced

from constitutional restrictions.

Both at home and abroad, the age of the

conservative big presidency was established.

The presidency of Donald J.

Trump increased the power of the presidency via a series of claims that the

president was indeed, above the law.

This essay describes the transition

from the desire for a balanced governance model to the push for a more

powerful President, and examines the consequences of both liberal and

conservative ideologies growing in prominence.

As the Grateful Dead said, “What a long strange trip it’s been.”

Long,

indeed. The evolution of the Presidency has taken more than half a century.

As for the strange part, to anyone born in the aftermath of World War II, to

see conservatives shift from being advocates of small government and limited

executive power to today’s chief proponents of a “unitary executive” theory

of power and an advocacy of a unilateral presidency, the transformation—as

well as the intellectual distance traveled—is breathtaking.

5. Joel R. Paul, The Geopolitical Constitution: Executive Expediency and Executive Agreements,

CALIF. L. REV. 671, 740 (1998).

6. See Gartner, supra note 3, at 533.

7. Nelson Lund, The Cult-Ivation of Executive Power, 11 G

REEN BAG 513, 513 (reviewing GENE

HEALY, THE CULT OF THE PRESIDENCY 2008).

8. Id. at 515-16.

9. Id.

10. Christopher S. Yoo et al., The Unitary Executive in the Modern Era, 1945-2004, 90

IOWA L.

REV. 601, 690-91 (2005).

11. Id. at 729-30.

12. Id. at 730.

13. See infra “Donald Trump and the Death of Conservatism”.

14. See infra “The Devolution of the Presidency”, “Selected Supportive Court Decisions”.

15. T

HE GRATEFUL DEAD, Truckin’, on AMERICAN BEAUTY (Warner Records Inc. 1970).

16. See infra “The Devolution of the Presidency”.

17. See Yoo, supra note 10, at 730.

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From the New Deal and the presidency of Franklin D. Roosevelt, came

the modern split of the Republican and Democratic parties.

The Democrats

were an unlikely combination of liberals and Southern conservatives, while

the Republicans occupied by the political right were joined by Wall Street,

Main Street, and Easy Street, to create a conservative coalition.

The Republicans developed their identity by contrasting themselves with

the New Deal Democrats, who established a welfare state out of the ashes of

the Depression of 1929.

The face of the welfare state was FDR, and the

Republicans not only opposed Roosevelt, but they were also hostile to the

growth of presidential power, going so far as to lead the charge to limit

presidential terms via the 22

Amendment, and to see presidential power as

a threat to liberty.

The post-World War II Republicans became the party of

“no” to the New Deal and welfare state, and the party of “less” government.

HE DEVOLUTION OF THE PRESIDENCY

Public and scholarly attitudes about the presidency have fluctuated

dramatically in the past seventy years.

When Franklin D. Roosevelt brought

his unique style and political skill to meet the challenges of the Great

Depression and World War II, the presidency became a “modern institution,”

which transformed the White House into a vital center of the American

political process.

FDR, considered by most scholars to be one of our

nation’s greatest presidents, was a powerful and effective chief executive.

Under FDR’s leadership, the presidency became the primary catalyst of the

American government.

Because of this, America began to look to the

federal government and the President as the nation’s problem solvers.

The

federal government’s power expanded, and with it, presidential

responsibilities, ending the era in which a President, such as Calvin Coolidge

could claim that his greatest accomplishment was minding his own

business.

Big government led to big presidency.

18. Id. at 604-05.

19. Becky Little, How the ‘Party of Lincoln’ Won Over the Once Democratic South, H

ISTORY

(Apr. 10, 2019), https://www.history.com/news/how-the-party-of-lincoln-won-over-the-once-democratic-

south.

20. See Yoo, supra note 10, at 604-05.

21. Id.

22. Id.

23. M

ICHAEL A. GENOVESE, THE PRESIDENTIAL DILEMMA: REVISITING DEMOCRATIC

LEADERSHIP IN THE AMERICAN SYSTEM 18 (3rd ed. 2011).

24. Id.

25. Id.

26. Id.

27. Id.

28. G

ENOVESE, supra note 23, at 18.

29. Id.

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Roosevelt was successful at expanding the role of the Presidency

alongside the expansion of the government.

In fact, he was so successful

that he transformed the presidency and changed public attitudes about the

role.

A “cult of the presidency” began to develop, wherein the office was

elevated far beyond the intent of the Framers or the power resources

constitutionally given to the Executive.

The public began to expect, even

demand, that the President solve problems.

Power became more

centralized, expectations focused on the presidency, and the road to power

ran directly to the White House.

Roosevelt created expectations of presidential power and leadership that

would be imposed on his successors.

This “heroic” model of presidency

was established as a result of FDR’s leadership, and presidential scholars

promoted the model as good and necessary.

From that point on, all

presidents would be in FDR’s shadow.

Elected as President four times, FDR was powerful, popular, and

charismatic.

He got the system moving.

Increasingly, the presidency

became more powerful, more personalized, and the United States was

transformed into a President-centered government.

It was in this era, which

political scientist Thomas E. Cronin called the “Superman” or textbook image

of the presidency, took root.

Roosevelt planted the seeds that would grow

into a view of the institution of the presidency as the seat of power,

benevolence, and wisdom.

As Robert Spitzer notes, “Roosevelt would

become the yardstick by which every future president would be measured.”

High standards indeed.

Roosevelt guided the nation through the Great

Depression, led the nation to the eve of victory in World War II, and utterly

transformed the presidency.

Roosevelt was a great president, but the myth

30. Id.

31. Id. at 18-19.

32. Id. at 19.

33. Id.

34. Id.

35. Id.

36. Id.

37. W

ILLIAM E. LEUCHTENBURG, IN THE SHADOW OF FDR 301 (Cornell Univ. ed., 3rd ed. 2001);

HILIP ABBOTT, THE EXEMPLARY PRESIDENCY 181 (1990).

38. G

ENOVESE, supra note 23, at 19.

39. Id.

40. Id.

41. Thomas E. Cronin, Superman, Our Textbook President, T

HE WASHINGTON MONTHLY, Oct.

1970, at 47, 47-49.

42. G

ENOVESE, supra note 23, at 19.

43. R

OBERT J. SPITZER, PRESIDENT AND CONGRESS 36-37 (Peter Labella & Fred H. Burns eds.,

1993).

44. G

ENOVESE, supra note 23, at 19.

45. Id.

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of FDR took on even greater stature.

An inflated view of Roosevelt passed

for fact in popular and scholarly conceptions of the presidency.

He was

never really as popular or as powerful as he is remembered.

But if FDR’s

presidency is the yardstick for presidential success, could any mere mortal be

expected to live up to such Herculean standards?

Could Roosevelt’s perceived wisdom, virtue, and power extend beyond

one man and be embodied in an institution? When FDR died in office toward

the end of World War II, his vice president, the diminutive Harry S. Truman,

became President.

How could Truman fill the shoes of FDR? How could

this interloper presume to grasp and use the power of this grand institution?

ILTING AT PRESIDENTIAL WINDMILLS

Several conservative scholars, such as James Burnham, Willmoore

Kendall, Alfred de Grazia, and James Buchanan, sounded the alarm on the

growing threat of presidential aggrandizement.

Edward S. Corwin, a

conservative scholar, raised concerns that the post-New Deal, post-World

War II presidency was growing in power at the expense of constitutional

restraints.

And while authors recognized the reasons for the rise in

presidential power, they also saw the threat posed by presidentialism.

But,

their concerns were largely dismissed, as the addictive drug of presidential

power seemed an elixir that served the needs and interests of the American

public.

Truman assumed the presidency in the final days of World War II.

an effort to hasten an end to the war, he ordered the atomic bomb(s) dropped

in Japan.

After the war, it was Truman who devised the “containment”

policy toward the Soviet Union—a policy which each succeeding president

would follow, more or less, until 1989 and the end of the Cold War.

It was

Truman who established the Marshall Plan, helped establish the North

Atlantic Treaty Organization (NATO), and led the United States back to a

46. Id.

47. Id.

48. Id.

49. G

ENOVESE, supra note 23, at 19.

50. G. Patrick Lynch, Protecting Individual Rights Through a Federal System: James Buchanan’s

View of Federalism, 34

PUBLIUS 153, 153 (Fall 2004); ALFRED DE GRAZIA, REPUBLIC IN CRISIS:

CONGRESS AGAINST THE EXECUTIVE FORCE 37-38 (1965); Willmoore Kendall, The Two Majorities, 4

IDWEST J. POL. SCI. 317, 317-18 (1960); JAMES BURNHAM, CONGRESS AND THE AMERICAN TRADITION

162-63 (1959).

51. E

DWARD S. CORWIN, THE PRESIDENT: OFFICE AND POWERS 1787-1957, 28 (4th ed. 1957).

52. G

RAZIA, supra note 50, at 37-38; CORWIN, supra note 51, at 28; C. PERRY PATTERSON,

RESIDENTIAL GOVERNMENT IN THE UNITED STATES: THE UNWRITTEN CONSTITUTION 74 (1947).

53. Marshall, supra note 1, at 515-17.

54. G

ENOVESE, supra note 23, at 20.

55. Id.

56. Id.

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post-war domestic economic revival.

It was also during Truman’s

presidency that the Korean War began.

To the surprise of most of his contemporaries, Truman became an

effective President, even though his popularity could never match that of

FDR, and it would be only after he left office that his contribution was

appreciated.

Truman embodied a sense often expressed as follows: Surely

if he can do the job, there must be something inherent in the office that brings

out greatness in even the most common of men.

Thus, the “FDR halo” was

born, which could be passed down from President to President, a kind of

magic that seemed to confer special powers on the occupant of the White

House.

When Dwight D. Eisenhower (Ike), a Republican, became President in

1953, he lent a bipartisan air to the majesty of the office.

While not an

activist President, Ike did manage to exert a hidden-hand type of leadership

in an era when the public seemed anxious to take a break from the hurly-burly

world of politics.

After all, the United States had been through the

Depression in the 1930s, a world war in the 1940s, and a nascent Cold War

in the late 1940s and early 1950s.

By the Eisenhower era, the American

people wanted a rest.

Ike, with a low-key, almost apolitical style, gave them

what they wanted.

Ike was amazingly popular, especially for a President

who seemed to do so little, and his popularity extended across the entire eight

years of his tenure.

Eisenhower, the great military hero, had a rather limited agenda as

President.

During his presidency, the Korean War ended, and a massive

interstate highway-building program began.

While his substantive

accomplishments may have been thin, Eisenhower inspired trust and

confidence and helped bring about stability and calm in the nation.

If the “FDR halo” seemed to be in limbo during the Eisenhower years,

Ike’s successor was determined to pull it out of purgatory.

John F.

57. Id.

58. Id.

59. G

ENOVESE, supra note 23, at 20.

60. Id.

61. Id.

62. Id.

63. Id.

64. G

ENOVESE, supra note 23, at 20.

65. Id.

66. Id.

67. Id.

68. Id.

69. G

ENOVESE, supra note 23, at 20.

70. Id.

71. Id. at 21.

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Kennedy, the Camelot President, wanted an activist administration, and after

eight years of Eisenhower, the public was ready for action.

The political

pendulum was swinging towards activism.

But try as he might, President

Kennedy’s legislative proposals often fell prey to unresponsive leadership in

Congress.

Stymied by an intransigent Congress, which took the system of

checks and balances seriously, the Kennedy legislative record was, at best,

mixed.

The first Roman Catholic ever to be elected president, Kennedy

won the presidency by a razor-thin margin in 1960.

Kennedy presided over

the Bay of Pigs fiasco in Cuba, placed military advisors in Vietnam, and

successfully led the nation through the Cuban Missile Crisis, but his

ambitious and progressive domestic initiatives often were blocked by

Congress, which was controlled by conservatives in his own party.

Kennedy achieved tax cuts that stimulated economic growth, started the

Peace Corps, and placed civil rights reform on the presidential agenda.

But

overall, Kennedy was stymied by a reluctant Congress.

And yet, not all were sanguine about the central role of the presidency

and the growth of presidential power.

Conservatives emerged as

contrarians, warning that the presidency was becoming a Leviathan, powerful

and out of control.

This behemoth of a presidency threatened the fabric of

representative government and posed a very real threat to the separation of

powers that had so ably served the U.S. for so many years.

Calling for less,

not more government, conservatives seemed to be tilting at windmills in an

era of a powerful government.

Liberals countered with two main arguments: presidential leadership was

inevitable, and presidential leadership was positive.

Presidential leadership

was inevitable because when the U.S. became the leader of the West, it

required strong, centralized leadership to oppose Communism and provide

global leadership.

Presidential leadership was positive in that only a strong

72. Id.

73. Id.

74. G

ENOVESE, supra note 23, at 21.

75. Id.

76. Id.

77. Id.

78. Id.

79. G

ENOVESE, supra note 23, at 21.

80. Id.

81. Lund, supra note 7, at 513.

82. Id.

83. C

ORWIN, supra note 51, at 121-22.

84. Id.

85. R

ICHARD E. NEUSTADT, PRESIDENTIAL POWER: THE POLITICS OF LEADERSHIP 34 (3rd ed.

1961); Harold Hongju Koh, Why the President (Almost) Always Wins in Foreign Affairs: Lessons of the

Iran-Contra Affair, 97 Y

ALE L.J. 1255, 1294 (June 1988).

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124 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 47

president could overcome the lethargy built into the check and balance system

and provide progressive leadership to a system mired in gridlock.

At this time, most conservatives promoted a Whig conception of

presidential power.

In this, William F. Buckley Jr.’s National Review

became the voice not only of conservatism in America, but of a limited

presidency.

In 1960, Buckley’s former Yale professor, Willmore Kendall

published a seminal essay entitled “The Two Majorities,” which called for an

Executive with limited power.

It was also in the early 1960s that advocates of limiting the President’s

power found their political guru in Arizona’s Republican Senator Barry

Goldwater.

During his failed presidential bid in 1964, Goldwater released

his campaign manifesto “My Case for the Republican Party.” In that essay,

Goldwater noted that:

Some of the current worship of powerful executives may come from

those who admire strength and accomplishment of any sort. Others

hail the display of Presidential strength . . . simply because they

approve of the result reached by the use of power. This is nothing

less than the totalitarian philosophy that the end justifies the means .

. . . If ever there was a philosophy of government totally at war with

that of the Founding Fathers, it is this one.

Similar voices found little support in a country mesmerized by all that the

presidency seemed to accomplish, even as forces in Congress tried to stand

in the President’s way.

This led to grumblings among the public and

scholars: “How can the Congress stand in the way of progress? . . . There are

too many checks on the presidency . . . We need more power for the

president” went the chants. If the presidency was good and just, it also

deserved to be strong, yet Congress stood in the way.

It should be noted that the exception to the small-government-limited-

executive-conservative rule found in the Cold War era, which was when the

political right so vehemently opposed the Soviet Union that caused many to

86. Koh, supra note 85, at 1294.

87. William S. Stokes, Whig Conceptions of Executive Power, P

RESIDENTIAL STUDIES

QUARTERLY, Spring 1976, at 16, 17.

88. Anthony F. Cottone, Buckley: William F. Buckley and the Rise of American Conservatism by

Carl T. Bogus, 60 JUN R.I.

B.J. 35, 35 (2012) (reviewing CARL T. BOGUS, BUCKLEY: WILLIAM F.

BUCKLEY AND THE RISE OF AMERICAN CONSERVATISM 2011).

89. Kendall, supra note 50, at 317.

90. Gene Healy, Conservatives and the Presidency, CATO

INSTITUTE (July 5, 2007, 4:00 PM),

https://www.cato.org/blog/conservatives-presidency.

91. Id.

92. Id.

93. G

ENOVESE, supra note 23, at 21.

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call for an unleashing of the presidential power directed at defeating

communism.

This was the first glimmer that conservatives might depend

on context or result, instead of philosophy, and that their view of presidential

powers was dynamic.

When they saw a dragon to slay, they sought a

strongman to do the slaying. In the 1950s and 1960s the dragon was

communism; today, the dragons are terrorism and liberalism.

The untimely death of John F. Kennedy in 1963 left unattained the

legislative agenda of the slain President.

His successor, Lyndon B. Johnson,

was a legislative genius who, exploiting the opportunity, managed to pass an

activist program and promote a more ambitious social agenda, which he

called the “Great Society.”

In 1964 and 1965, Johnson passed bill after bill,

far surpassing anything his critics thought possible.

It seemed the FDR halo

and Camelot had merged to produce a protean presidency of power and

purpose.

100

We were a nation intoxicated by presidential power.

101

And

where were conservatives when the celebration of all things presidential rose?

Most of them were tilting at windmills.

102

The FDR halo was revived because Lyndon Johnson brought the strong-

presidency model back to life.

103

The public could breathe easier knowing

that a strong president—a superman—was once again at the helm.

104

Johnson’s success confirmed the validity of the heroic presidency model.

105

Johnson’s presidency was positive proof that a strong presidency was a good

presidency; and that more presidential power meant greater public good.

106

The public injected another dose of the drug of strong leadership, and it felt

good.

107

The American people placed their trust in the president, invested

their hopes in the office, and saw the President as powerful, good, and

trustworthy.

108

This was the start of the “Cult of the Presidency.”

109

But it would soon prove to be misplaced trust, because the seeds of the

“Imperial Presidency” were planted in this period, and it would not be long

94. WILLIAM E. LEUCHTENBURG, IN THE SHADOW OF FDR 83 (Cornell U. ed., 3rd ed. 2001).

95. See Lynch, supra note 50.

96. Lund, supra note 7, at 515-16.

97. G

ENOVESE, supra note 23, at 21.

98. Id.

99. Id.

100. Id.

101. Id.

102. G

ENOVESE, supra note 23, at 21.

103. Id.

104. Id.

105. Id.

106. Id.

107. G

ENOVESE, supra note 23, at 21.

108. Id. at 21-22.

109. Lund, supra note 7, at 513-14.

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before public trust turned to disdain.

110

If the era of the cult of the presidency

led to the public and academics demanding more power for the President and

placing too much trust in the institution, the harsh lessons of political reality

would soon haunt the all-too-trusting and unwary people in both camps.

111

If the public suspended its disbelief and almost blindly placed its faith in

the strong-presidency model, why did academics so easily go along? Of

course, there were voices in the wilderness, warning of the dangers of

unchecked presidential power,

112

but in general, scholars and the public were

equally intoxicated by the strong presidency exhibited by Johnson.

113

A sampling of quotes from the classic book title The American

Presidency by conservative academic Clinton Rossiter, first published in

1956, gives an indication of the status and esteem in which even the

conservative Rossiter held the presidency.

114

Few nations have solved so simply and yet grandly the problem of

finding and maintaining an office or state that embodies their majesty

and reflect their character . . .

There is virtually no limit to what the President can do if he does it

for democratic ends and by democratic means . . .

He reigns, but he also rules; he symbolizes the people, but he also

runs their government . . .

The President is not a Gulliver immobilized by ten thousand tiny

cords, nor even a Prometheus chained to a rock of frustration. He is,

rather, a kind of magnificent lion who can roam widely and do great

deeds so long as he does not try to break loose from his broad

reservation.

115

And Rossiter wrote that the American presidency is “one of the few truly

successful institutions created by men in their endless quest for the blessings

of free government.”

116

He concluded by writing:

110. GENOVESE, supra note 23, at 23.

111. Id.

112. G

RAZIA, supra note 50, at 37-38; ARTHUR M. SCHLESINGER, JR. & ALFRED DE GRAZIA,

ONGRESS AND THE PRESIDENCY: THEIR ROLE IN MODERN TIMES 33 (3rd ed. 1971).

113. N

EUSTADT, supra note 85, at 1.

114. G

ENOVESE, supra note 23, at 23.

115. C

LINTON ROSSITER, THE AMERICAN PRESIDENCY 250-51 (2nd ed. 1960).

116. Clinton L. Rossiter 3d Is Dead; Historian and Political Scientist, N.Y.

TIMES (July 12, 1970),

https://www.nytimes.com/1970/07/12/archives/clinton-l-rossiter-3d-is-dead-historian-and-political-scien

tist.html.

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It is, finally, an office of freedom. The Presidency is a standing

reproach to those petty doctrinaires who insist that executive power

is inherently undemocratic; for, to the exact contrary, it has been

more responsive to the needs and dreams of giant democracy than

any other office or institution in the whole mosaic of American life.

It is no less a reproach to those easy generalizers who think that Lord

Acton had the very last word on the corrupting effects of power, for,

again, to the contrary, his doctrine finds small confirmation in the

history of the Presidency. The vast power of this office has not been

“poison,” as Henry Adams wrote in scorn; rather, it has elevated

often and corrupted never, chiefly because those who held it

recognized the true source of the power and were ennobled by the

knowledge.

117

Rossiter is not alone in his celebration of the presidency and presidential

power.

118

In 1960, Richard Neustadt published the influential Presidential

Power: The Politics of Leadership.

119

For Neustadt, a strong president was

essential in order to overcome the natural lethargy of a system of “separated

institutions sharing power.”

120

Neustadt writes:

The contributions that a President can make to government are

indispensable. Assuming that he knows what power is and wants it,

those contributions cannot help but be forthcoming in some measure

as by-products of his search for personal influence. In a relative but

real sense one can say of a President what Eisenhower’s first

Secretary of Defense once said of General Motors: what is good for

the country is good for the President and vice versa.

121

Neustadt’s effective president – his more conservative critics were quick

to point out – posits a liberal/activist model of the presidency; or a big,

powerful, even dominant presidency.

122

Neustadt presumes that a small

presidency is a weak presidency, one that fails to meet the needs and demands

of a global super-power.

123

117. ROSSITER, supra note 115, at 251.

118. G

ENOVESE, supra note 23, at 24.

119. Id.

120. Id.

121. N

EUSTADT, supra note 85, at 185.

122. Id.

123. Id. at

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After examining standard civics textbooks of the 1960s, Tom Cronin

discovered an idealized view of the presidency.

124

This textbook version of

the presidency romanticized the office and heaped honor upon the

President.

125

The President was presented as Superman, able to leap tall

separations of power in a single bound.

126

In 1960, Herman Finer presents this view in a combined religious and

heroic vision of the presidency, not only as “the incarnation of the American

people in a sacrament resembling that in which the wafer and the wine are

seen to be the body and blood of Christ” but also as belonging “rightfully to

the offspring of a titan and Minerva husbanded by Mars.”

127

In 1965, James

MacGregor Burns informally shared this view by stating that “the stronger

we make the Presidency, the more we strengthen democratic procedures . . .

.”

128

Finally, in 1976, Grant McConnell opined that “[t]o ask what is to

become of the presidency is to ask what is to become of the entire American

political order.”

129

This presidency-centered model, which came to infiltrate many minds,

was more than an operating style of government; it was also a philosophy of

governing.

130

The President-centered approach to government was an

operating style that promotes a system of government in which the President

was to direct or lead the people and the other branches of government from a

perch of great power and authority.

131

It was a philosophy of government that

legitimized a stronger central government and took power away from the

other branches, and perhaps even more importantly, it took power from the

people and vested responsibility in the hands of government, via the

President, to solve problems.

132

Thus it diminished the democratic

responsibility placed in the people, and promoted responsibility and power in

the leadership class.

133

It also failed to recognize the potential danger of the

heroic-leadership model.

134

The realignment of the political parties that began in the late 1960s as a

result of Lyndon Johnson’s policies also added to the conservative embrace

124. THOMAS E. CRONIN, THE STATE OF THE PRESIDENCY 76-77 (2nd ed. 1980). See also RICHARD

M. PIOUS, THE AMERICAN PRESIDENCY 6 (1979); WILLIAM W. LAMMERS, PRESIDENTIAL POLITICS:

PATTERNS AND PROSPECTS 7 (Ronald K. Taylor ed., 1976).

125. G

ENOVESE, supra note 23, at 25.

126. Id.

127. H

ERMAN FINER, THE PRESIDENCY: CRISIS AND REGENERATION 111, 119 (2nd ed. 1974).

128. J

AMES MACGREGOR BURNS, PRESIDENTIAL GOVERNMENT: THE CRUCIBLE OF LEADERSHIP

330 (1966).

129. G

RANT MCCONNELL, THE MODERN PRESIDENCY 100 (2nd ed. 1976).

130. G

ENOVESE, supra note 23, at 25.

131. Id.

132. Id.

133. Id.

134. G

ENOVESE, supra note 23, at 25.

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of big government and a big presidency.

135

The FDR coalition of the 1930s

and 1940s brought oil and water together by shoehorning liberal Northern

Democrats with conservative Southern Democrats, united behind the

personality and policies of Roosevelt.

136

These strange bedfellows began a

divorce after Johnson’s Great Society program passed civil rights and voting

rights legislation in the mid-1960s.

137

Southern conservatives began to shift their alliance to the Republican

Party. Lyndon Johnson was well aware that pushing civil rights endangered

the Democratic Party he led, going so far as to predict that “we just delivered

the South to the Republican party for a long time to come.”

138

This party realignment gave the South to the Republicans, and also made

the Republicans more willing to use the tools of government to solve

problems.

139

The political calculus changed both electorally and

politically.

140

Old Democrats, who became known as New Republicans,

made an impact on the Republican party.

141

But just when the public was lulled into a false sense of complacency and

security concerning the benevolence of presidential power, things began to

change.

142

They changed quickly and dramatically at the start of the Vietnam

War.

143

U.S. involvement in Vietnam began quietly, escalated slowly, and

eventually led to tragedy.

144

By 1966, the United States was engaged in a war

that it could not win and from which it could not withdraw without facing

dishonor. It was a “presidential war,” and it brought the Johnson

administration to its knees.

145

As U.S. involvement escalated, and as victory for the United States

seemed further and further away, blame was placed squarely on the shoulders

of President Johnson.

146

Although the Constitution gives Congress the power

135. Barbara Deckard Sinclair, Party Realignment and the Transformation of the Political Agenda:

The House of Representatives, 1925-1938, 71 A

M. POL. SCI. REV. 940 (1977).

136. Id. at 940, 950.

137. See Yoo, supra note 10, at 649.

138. Becky Little, How the ‘Party of Lincoln’ Won Over the Once Democratic South, H

ISTORY

(Apr. 10, 2019), https://www.history.com/news/how-the-party-of-lincoln-won-over-the-once-democratic-

south.

139. Id.

140. Id.

141. Id.

142. G

ENOVESE, supra note 23, at 26.

143. Id.

144. S

TANLEY KARNOW, VIETNAM: A HISTORY 11 (New York: Viking, 1983); ALBERT CANTRILL,

THE AMERICAN PEOPLE, VIETNAM, AND THE PRESIDENCY (Princeton: Princeton University Press, 1976);

AVID HALBERSTAM, THE BEST AND THE BRIGHTEST 219 (New York: Random House, 1972).

145. L

ARRY BERMAN, LYNDON JOHNSON’S WAR 113 (New York: W.W. Norton, 1989); LARRY

BERMAN, PLANNING A TRAGEDY: THE AMERICANIZATION OF THE WAR IN VIETNAM 152-53 (New York:

W.W. Norton, 1982).

146. G

ENOVESE, supra note 23, at 26.

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to declare war, a grant of power in practice since the Truman administration

and the “Korean Conflict,” presidents have often acted unilaterally in this

regard.

147

By the time Johnson came to office, presidents had been setting

policy in Vietnam for twenty years, largely unencumbered by the

Congress.

148

As U.S. involvement escalated, it was the president who was

calling the shots.

149

The tragedy of Lyndon Johnson is that after such a

sterling start, after such great success, the blunder of Vietnam overwhelmed

him and the nation.

150

From such great heights, the president fell to such

tragic depths.

151

The nation was torn apart.

152

The glue that bound Americans

together had lost its adhesiveness, and in its place, divisiveness and conflict

overtook the nation.

153

The strong presidency, so long seen as the savior of

the American system, now seemed too powerful, too dangerous, too

unchecked—in short, a threat.

154

After years of hearing calls for “more power

to the president,” by the late 1960s the plea was to rein in the overly powerful

“monster” in the White House.

155

It was a rude awakening. All the hopes, trust, and expectations that had

been entrusted to the presidency were being shattered.

156

Johnson was

compelled not to seek reelection in 1968 when faced with the near certainty

of electoral defeat.

157

But that was not the end of it. His successor was to

degrade the nation’s image of the presidency even further.

158

IXON AND THE BIG PRESIDENCY

If the Vietnam War was tearing our nation apart, Johnson’s successor,

Richard M. Nixon, would continue to plunge the presidency and the nation

toward the depths of division and degradation.

159

Although Nixon promised

in his 1968 campaign to “bring us together,” he only brought the nation

together in the collective shame of massive corruption and pettiness, when

the President of the United States was named an “unindicted co-conspirator”

by the federal grand jury during the crisis of Watergate.

160

147. Id.

148. Id.

149. Id.

150. Id.

151. G

ENOVESE, supra note 23, at 26.

152. Id.

153. Id.

154. Id.

155. Id.

156. G

ENOVESE, supra note 23, at 26.

157. Id.

158. Id.

159. Id. at 26-27.

160. Id. at 27.

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Nixon extended and then ended the war in Vietnam.

161

This led to a

stunning reelection landslide victory in 1972.

162

From then on it was all

downhill.

163

Nixon’s was the most corrupt administration in U.S. history, and

the President himself was deeply involved in the crimes of Watergate.

164

With the institution of the presidency already weakened by the tragedy of the

Vietnam War, the revelations of corruption, referred to under the umbrella

term “Watergate,” led to a further diminution of presidential prestige.

165

The first substantial inkling of a conservative transformation from a Whig

conception of presidential power to an embrace of a big-president/big-

government approach was found, as mentioned, in demanding strong,

assertive presidential action in foreign policy—especially as regards US

relations with the Soviet Union. These Cold War conservatives often

recognized the paradox of calling for a bigger and a smaller presidency,

something I have referred to as the Goldilox Dilemma: This presidency is too

hot (in foreign policy and war), this presidency is too cold (in domestic

policy). We could not seem to get the presidential porridge “just right.”

Beyond the Cold War advocacy of presidential power, the next step in

the conservative embrace of a big presidency reared its head during the

presidency of Richard Nixon.

166

Nixon believed in maintaining a powerful

foreign policy presidency, and he wanted to set foreign policy unilaterally

when possible.

167

In domestic policy, Nixon exhibited only sporadic interest,

going so far as to tell journalist Theodore White, “‘I’ve always thought this

country could run itself domestically without a president, all you need is a

competent Cabinet to run the country at home. You need a president for

foreign policy.’”

168

In line with his views on policies, Nixon’s domestic agenda—especially

his early efforts at reform (e.g., a minimum wage guarantee and HMO

proposals) were stymied in the age of divided government.

169

And Nixon

soon realized that to avoid deadlock, he needed to exercise as much of a one-

man-rule as possible. But how does a president govern without Congress?

Via an administrative strategy.

In the 1970s, conservatives began to explore the benefits of presidential

power aimed at achieving their own conservative ends. In 1974, Jeffrey Hart

published an essay in National Review entitled “The Presidency: Shifting

161. GENOVESE, supra note 23, at 27.

162. Id.

163. Id.

164. Id. at 172-73.

165. G

ENOVESE, supra note 23, at 27.

166. See M

ICHAEL A. GENOVESE, THE NIXON PRESIDENCY (Westport: Greenwood Press, 1990).

167. Id. at 165.

168. Id. at 72.

169. Id.

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Conservative Perspectives?”

170

Hart recognized that conservatives were

understandably suspicious of activist presidents but saw the possibility of a

strong president keeping the growth of the administrative state in check.

171

Step-by-step, conservatives began to love presidential power.

Nixon went further than Hart. He devised an administrative strategy for

governing without Congress, using regulatory authority, executive orders,

and other forms of administrative authority to govern alone.

172

Big

presidency, here we come.

In July 1972, during Nixon’s campaign for a second term, agents for his

reelection committee were arrested for burglary at the Democratic party

headquarters in the Washington, D.C., Watergate apartment complex, after

an attempt to wiretap telephones there.

173

This precipitating event—which

led almost a year later to the special Senate hearings called to investigate

Watergate—proved to be only a minor part of the widespread corruption

within the Nixon administration.

174

The revelations of Watergate stunned the nation because the President

and a number of his top aides as well as Cabinet members had been involved

in a variety of crimes and dirty tricks (e.g., obstruction of justice, extortion,

burglary, cover-ups, paying of hush money, etc.).

175

What shocked the nation

was the level of direct presidential involvement in many of these crimes.

176

Nixon, the only U.S. President forced to resign his office, did have

several significant foreign policy achievements—the opening of relations

with China, détente with the Soviet Union, drawing the war in Vietnam to a

conclusion—and he was somewhat progressive in domestic affairs.

177

But all

of these accomplishments were overshadowed by the crimes and corruption

of Watergate.

178

Nixon was forced to relinquish his office when faced with

the certainty of impeachment by the House and conviction by the Senate.

179

A major transformation began to take place.

180

As a result first of

Vietnam, then of Watergate, our Superman became an Imperial President.

181

Historian Arthur M. Schlesinger, Jr. argues in his influential book The

170. Jeffrey Hart, The Presidency: Shifting Conservative Perspectives?, NATIONAL REVIEW 1351

(Nov. 22, 1974).

171. Id.

172. R

ICHARD P. NATHAN, THE PLOT THAT FAILED: NIXON AND THE ADMINISTRATIVE

PRESIDENCY (New York: Wiley, 1975).

173. G

ENOVESE, supra note 23, at 27.

174. Id.

175. Id.

176. Id.

177. Id.

178. G

ENOVESE, supra note 23, at 27.

179. Id.

180. Id. at 28.

181. Id.

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Imperial Presidency

182

argued that the abuse of power by presidents

threatened the constitutional integrity of the U.S. system of government.

183

With the rise of the president’s war powers and the increased secrecy

surrounding presidential initiatives, the president was usurping and abusing

power and acting above the law.

184

Cronin’s Superman—savior of the

people—became Schlesinger’s enemy of the people.

185

The presidency had

become a danger to the republic, using its powers not for the public good but

for self aggrandizement.

186

A new image of the presidency developed.

Superman was no longer on the side of the people; the power of the

institution, which Americans thought would be used for good, also granted

the bearer a capacity to do wrong.

187

Historian Marcus Cunliffe was

compelled to call the presidency a “Frankenstein” monster.

188

Watergate turned out to be the final nail in the coffin of the unambiguous

acceptance of the strong-presidency model.

189

The twin effects of Vietnam

and Watergate led to an era of deep cynicism regarding politics and the

presidency characterized as the Imperial Presidency, along with a call for a

corralling of a president perceived as acting above the law.

190

It was a

presidency-curbing, if not presidency-bashing, period, an era of “Deliver Us

from Presidents” (1967-1974).

191

As a reaction against the excesses of power in the Johnson and Nixon

presidencies, the Congress attempted to reassert its power by taking a series

of presidency-curbing steps, the most notable being the passage of the War

Powers Act, which attempted (with little success) to limit the president’s war

powers, though its enactment was only somewhat successful.

192

If blind faith

had characterized the Hallowed Be the President era (1932-1966), blind

distrust characterized the Deliver Us from Presidents period.

193

Any and all

presidential acts were suspect, and presidential initiatives garnered virtually

no support.

194

A weak-presidency model (though not a strong-Congress

model) prevailed.

195

In the midterm election of 1974, a new breed of activist

182. ARTHUR M. SCHLESINGER, JR., THE IMPERIAL PRESIDENCY (Boston: Houghton Mifflin Co.,

1973).

183. G

ENOVESE, supra note 23, at 28.

184. Id.

185. Id.

186. Id.

187. Id.

188. Marcus Cunliffe, A Defective Institution?, C

OMMENTARY (Feb. 1968), https://www.commenta

rymagazine.com/articles/marcus-cunliffe/a-defective-institution/.

189. G

ENOVESE, supra note 23, at 28.

190. Id.

191. Id.

192. Id.

193. Id.

194. G

ENOVESE, supra note 23, at 28.

195. Id.

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Democrats was elected to the Congress.

196

Weaned not on FDR’s greatness

but on Johnson’s and Nixon’s excesses, this new generation of legislators was

less deferential to presidents, less willing to bow to claims of presidential

prerogative, and more willing to directly challenge presidents.

197

As a result,

the legislative initiatives of Presidents Ford and Carter would fall victim to

the Congress’s revised, more suspicious attitude toward presidential

power.

198

If the Johnson and Nixon years revealed an Imperial Presidency, the Ford

and Carter years revealed an Imperiled Presidency.

199

The cult of the

presidency gave way to revulsion and distrust. It was a period characterized

as “Blessed Are the Meek” (1975-1980).

200

In 1980, Vice President Walter

Mondale referred to the presidency as “‘the fire hydrant of the nation.’”

201

After Vice President Spiro Agnew resigned the office in 1973 and

pleaded nolo contendere to charges of tax evasion, Nixon appointed Gerald

Ford Vice President.

202

Following Nixon’s resignation in August of 1974,

Ford became America’s first “unelected” President.

203

Shortly after taking

office, Ford granted his predecessor a “full free and absolute pardon” for any

crimes he may have committed as president.

204

In Congress and among the

public, suspicions persisted that Ford had pardoned Nixon for political or

personal expediency.

205

In this cynical atmosphere, President Ford’s ability

to govern floundered and he quickly became a caretaker president.

206

In his brief time as president, Gerald Ford did help restore the nation to a

period of relative calm, and he helped slowly to restore the integrity of the

presidency in a post-Watergate era.

207

But the cynicism born of Vietnam and

Watergate persisted, and Ford fell as one of its many victims.

208

In the aftermath of Watergate and the Nixon pardon, the public elected a

relative unknown to the White House, Jimmy Carter.

209

As President, Carter

attempted to demythologize the presidency.

210

He recognized that dramatic

changes were taking place in the world, and that America’s power was

196. Id.

197. Id.

198. Id.

at 28-29.

199. G

ENOVESE, supra note 23, at 29.

200. Id.

201. Joseph Kraft, The Post Imperial Presidency, N.Y.

TIMES (Nov. 2, 1980), 31.

202. G

ENOVESE, supra note 23, at 29.

203. Id.

204. Id.

205. Id.

206. Id.

207. G

ENOVESE, supra note 23, at 29.

208. Id.

209. Id.

210. Id.

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declining relative to the robust hegemony the United States had enjoyed in

the immediate aftermath of World War II.

211

Carter tried to get the nation to

adjust to the shifting power dynamic, but he was unable to persuade a public

hooked on consumerism that they had to settle for less.

212

When American

hostages were taken in Iran, Carter appeared weak and paralyzed.

213

The

nation cried out for strong leadership, and Carter could not answer the call.

214

Like Gerald Ford, Carter was a man of great decency but limited political

acumen.

215

He faced a presidency-bashing age with dignity but insufficient

skill.

216

He could not get the Congress controlled by his own party to pass

his legislative agenda, and when events around the world came crashing down

upon him, Carter was helpless and ineffective.

217

President Carter’s major success was the Camp David peace accords

between Egypt and Israel.

218

He also focused world attention on human rights

and achieved civil service reform.

219

But when double-digit inflation and

soaring interest rates combined with Carter’s helplessness in the face of

Iranian student radicals’ taking fifty-two Americans hostage, Carter’s

presidency was doomed.

220

HE BIG TURNAROUND

After a period of leaderless drift, the nation began to forget about the

problems of presidential power, and a hunger for leadership reemerged.

221

Problems accumulated, and the nation’s “leaders” seemed powerless in the

face of these hardships.

222

The urge for the strong-presidency model

reclaimed center stage, and a new era, the “Search for a Savior” (1980-1986),

appeared.

223

Ronald Reagan took Washington by storm.

224

Claiming a bold mandate

and focusing on just a few key economic items, Reagan managed to get

several of his top agenda items enacted into law during his first year as

President.

225

After an impressive start, Reagan faltered.

226

Initial success in

211. Id.

212. G

ENOVESE, supra note 23, at 29.

213. Id.

214. Id.

215. Id.

216. Id.

217. G

ENOVESE, supra note 23, at 29.

218. Id.

219. Id.

at 29-30.

220. Id.

at 30.

221. Id.

222. G

ENOVESE, supra note 23, at 30.

223. Id.

224. Id.

225. Id.

226. Id.

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dealing with Congress gave way to frustration and defeat.

227

The President

could not overcome the system’s roadblocks, and unwilling to accept the

limits placed upon the office, Reagan and members of his administration went

beyond the law and abused their power.

228

Reagan, like Nixon, displayed a

lack of respect for the law and attempted to impose a new “Imperial

Presidency,”

229

and at the end his presidency, Reagan’s legacy was nearly

destroyed by the Iran-Contra scandal.

230

Reagan’s engaging personality and quick wit helped him become

popular, and his borrow-borrow, spend-spend approach to policy may have

added to America’s military might, the nation was left at the brink of

economic insolvency.

231

The United States went from being the world’s

largest creditor/lender nation to becoming the world’s largest

debtor/borrower nation in 1988.

232

Reagan’s regressive tax cuts led to

massive deficits.

233

Thus, when opportunity presented itself, Reagan was

unable to convert the collapse of Soviet Communism to America’s advantage,

leading the United States to decline while Europe and Japan grew.

234

During the Reagan years, conservatives, enamored of the style,

personality, and agenda of Ronald Reagan, began a migration from limited

government and a limited presidency to advocacy for a strong presidency.

Small government rhetoric remained a staple in speechmaking, but in

practice, conservatives learned to love executive power—at least when in the

hands of one of their own. The power of government, they learned, could be

used to achieve certain conservative objectives. The enemy, to these new

conservative voices, was not an Imperial Presidency, but an Imperial

Congress or an Imperial Judiciary.

235

While remaining true to the traditional conservative small government

mantra, “Government is not the solution to our problems; Government is the

problem,” Reagan presided over a government that incurred record deficits,

expanded the size and scope of government, and helped fellow conservatives

227. GENOVESE, supra note 23, at 30.

228. Id.

229. Id. at 29.

230. Id. at 30.

231. Id.

232. G

ENOVESE, supra note 23, at 30-31.

233. Id. at 31.

234. See M

ICHAEL A. GENOVESE, THE PRESIDENCY IN AN AGE OF LIMITS (Westport, Ct.:

Greenwood Press, 1993).

235. See generally T

ERRY EASTLAND, ENERGY IN THE EXECUTIVE: THE CASE FOR THE STRONG

PRESIDENCY (1992); AM. ENTER. INST. FOR PUB. POLICY RESEARCH, THE FETTERED PRESIDENCY: LEGAL

CONSTRAINTS ON THE EXECUTIVE BRANCH (L. Gordon Cravitz & Jeremy A. Rabkin eds., 1989);

ERITAGE FOUND., THE IMPERIAL CONGRESS: CRISIS IN THE SEPARATION OF POWERS (Gordon S. Jones

& John A. Marini eds., 1988).

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make peace with governmental and presidential power.

236

Many

conservatives called for the repeal of the 22

Amendment which limited a

president’s terms in office.

237

Political scientist Stephen Skowronek noted

the irony:

[C]urious is that contemporary conservatives would take up

advocacy of a cause that had left many of their own ideological

forebears anxious and defensive. In the later years of progressive

dominance, American conservatives were still cuing off of a

hallowed Whig tradition of hostility to presidential aggrandizement

and executive pretension; opposition to progressive political

priorities went hand in hand with skepticism toward the progressives’

“modern” presidency. The conservatives of the 1950s and 1960s

were formalists who shunned the progressives’ pragmatism and

upheld constitutional arrangements that the shift to presidential

government threatened. A diverse array of conservative analysts and

theorists—James Burnham, Willmoore Kendall, Alfred de Grazia,

and James Buchanan—countered the higher-order aggregations of

the progressives’ new system of rule by repairing to the original

design of American government and expounding upon the

congressional and local prerogatives it harbored.

238

After Reagan, scholars and the public seemed once again thoroughly

confused as to what limits to place on the President’s power.

239

The roller-

coaster ride that alternated between strong and weak models of presidential

power left the people feeling somewhat schizophrenic.

240

This confusion led

to the current era, a “Where there is no vision, the people perish” period

(1988-2000).

241

The presidency under George H.W. Bush seemed in a state of suspended

animation.

242

Bush, compared to Reagan, was a man of uncompromising

grayness, a manager during a time the nation needed a leader.

243

The end of

the Cold War opened a window of opportunity to exert creative leadership,

but Bush was shackled by a vastly depleted resource base, created by the

legacy of Reagan’s economic mismanagement, and an intellectual cupboard

236. GENOVESE, supra note 23, at 10, 30.

237. See generally, Stephen W. Stathis,

The Twenty-Second Amendment: A Practical Remedy or

Partisan Maneuver?,

7 CONST. COMMENTARY 61 (1990).

238. Stephen Skowronek, The Conservative Insurgency and Presidential Power: A Developmental

Perspective on the Unitary Executive, 122 H

ARV. L. REV. 2070, 2075 (2009).

239. G

ENOVESE, supra note 23, at 31.

240. Id.

241. Id.

242. Id.

243. Id.

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that was bare, stemming from a lack of vision for the post-Cold War era.

244

In the post-Cold War world, some conservatives returned to the views of the

Whigs, but overall Conservatives were not able to put the genie of

presidential power back into the constitutional bottle.

Bush was at his best when he had a clear goal to achieve, like the Gulf

War, a goal imposed upon him by events.

245

But when it came time for him

to choose, to set priorities and to decide a direction, the elder Bush

floundered.

246

As conservative columnist George Will commented, “When

the weight of the [presidency] is put upon a figure as flimsy as George Bush,

the presidency buckles.”

247

In a time that cried out for vision, Bush appeared stagnant.

248

There was

no clear aspiration to accomplish grand goals.

249

When it came time for the

public to render judgment via an election, it chose another relative unknown

over George H.W. Bush.

250

Bill Clinton, who had been a successful governor of Arkansas but was an

outsider to Washington politics and little known before the presidential

campaign, began his administration with an ambitious set of campaign

pledges and an economy creeping toward recovery.

251

According to Lowi

and Ginsberg, President Clinton was “haunted by two ghosts—the legacies

of Ronald Reagan and James Madison.”

252

The ghost of Reagan can be seen

in the enormous debt Reagan left to his successors; that of Madison can be

seen in the system of checks and balances, of limited and shared powers—of

a separation rather than a fusion of governmental power.

253

Clinton has had

other problems including a lack of experience in Washington, winning only

43 percent of the popular vote for president in a three-way race, and running

behind virtually every member of Congress in their districts.

254

He did not

have the typical “coattails” one might expect, nor was he granted the typical

“honeymoon” period.

Throughout his presidency, Clinton was hounded by the “character”

issue.

255

His sexual affair with a young White House intern and his

dishonesty about that relationship led to the House impeaching him.

256

The

244. GENOVESE, supra note 23, at 31.

245. Id.

246. Id.

247. Id.

248. Id. at 32.

249. G

ENOVESE, supra note 23, at 32.

250. Id.

251. Id.

252. Id.

253. Id.

254. G

ENOVESE, supra note 23, at 32.

255. Id.

256. Id. at 18.

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Senate, however, while also under the control of Republicans, failed to get

majority support on any of the articles of impeachment against Clinton.

257

spite of his many character problems, Clinton remained popular with

voters.

258

While Republicans attempted to neuter him politically, President

Clinton left office with an enormous budget surplus.

259

While Republicans and conservatives talked a good game on fiscal

discipline, in practice their deeds did not match their words. Ironically, when

in office, Republicans acted even worse than the Democrats they so often

attacked as reckless big spenders. For example, since 1982, annual growth

of the federal government grew more under Reagan and the two Bushes, than

under Democrats, Clinton and Obama. Under Reagan federal spending grew

8.7 percent between 1982 and 1985; under Obama between 2010 and 2013,

spending grew 1.4 percent.

260

EORGE W. BUSH: IDEOLOGY (CHENEY) AND OPPORTUNITY (9/11)

George W. Bush promised to be a “compassionate conservative,” who

during his Republican Party acceptance speech in Philadelphia in 2000

reiterated the comfortable conservative bromide, “big government is not the

answer.”

261

But events would force his hand and he became a wartime

president. “Dubya,” like Reagan before him, presided over a significant

increase in the size and scope of government. Not only did the younger Bush

create the largest government bureaucracy in American history, the

Department of Homeland Security (DHS), he was also responsible for

dramatic spending increases, two long, costly wars, skyrocketing debt and

deficits, the largest entitlement program since Johnson (prescription drug

benefits) and increased federal control over K-12 education via the No Child

Left Behind Act.

262

When the economic recession hit in 2007, Bush

promoted massive stimulus government spending to fend off what his chief

advisors believed could become a worldwide depression.

263

One may rightly

argue the merits of such steps, but one thing is clear: a big presidency was

achieving big government goals. With the 9/11 attack against the United

States, virtually everyone, liberals, conservatives, and moderates alike, rallied

257. Id. at 34.

258. Id. at 32.

259. G

ENOVESE, supra note 23, at 35.

260. Camille Caldera, Fact check: Clinton, Obama left federal government with a lower deficit than

when they arrived, USA

TODAY (Dec. 31, 2020), https://www.usatoday.com/story/news/factcheck/2020/1

2/31/fact-check-meme-lacks-context-clinton-obama-federal-deficit/6464069002/.

261. Acceptance Speech | President George W. Bush | 2000 Republican National Convention,

Republican National Convention (Mar. 7, 2016), https://www.youtube.com/watch?v=Cl7yv7BNHsk.

262. G

ENOVESE, supra note 23, at 11.

263. See T

IM ALBERTA, AMERICAN CARNAGE: ON THE FRONT LINES OF THE REPUBLICAN CIVIL

WAR AND THE RISE OF PRESIDENT TRUMP, Chap. 1 (Harper Collins, 2019).

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140 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 47

behind the President and—as happens during a crisis—power gravitated to

the White House.

264

As soon as the planes hit the Twin Towers, Americans turned almost

instinctively to their President. “Do something!” they seemed to plead. In

the confusing and frightening wake of the collapsed towers, a void was

created. The public expected, demanded even, that the President fill that void,

and President Bush did.

As the White House sprang into action, Congress’s power shrank, the

courts waited silently on the sidelines, and the public threw its collective

weight behind the President.

265

The executive branch mobilized the

machinery of government to respond to this new threat.

266

After a stumbling start, President George W. Bush exercised a bold,

muscle-flexing brand of leadership, impressive for its self-confidence as well

as its audacity.

267

Bush launched a war against the Taliban government of

Afghanistan that had been harboring terrorists.

268

He declared an

international war against terrorism and directed the resources of the country

along with a broad based alliance of nations against Osama bin Laden and his

al Qaeda terrorist network.

269

The debate over presidential prerogative power after 9/11 was fought

largely between the presidentialist camp who saw an expansive presidency,

and the constitutionalist camp who argued that the Constitution called for a

sharing of power by the president and Congress. After 9/11, the

presidentialists grew bolder and began to make claims for the presidency that

defied logic and ran counter to the overwhelming historical weight of

evidence.

270

Emboldened by the terrorist attack against the United States, armed with

overwhelming public support for an aggressive response, cognizant of the

withering away of an independent congressional response, and unconcerned

with the potential checking power of the courts, these presidentialists, led by

Vice President Dick Cheney, ratcheted up their claims of presidential power,

only to use this newly empowered office as a tool to further a conservative

international agenda. Many of these conservatives or neo-conservatives, who

264. GENOVESE, supra note 23, at 11.

265. Id.

266. Id.

267. Id.

268. President George W. Bush addresses a Joint Congress about the War on Terror, AP

ARCHIVE

(Jul. 31, 2015), https://www.youtube.com/watch?v=TYnx-c8pF34.

269. Id.

270. For a critique, see R

OBERT J. SPITZER, SAVING THE CONSTITUTION FROM LAWYERS 90-128

(Cambridge: Cambridge University Press, 2008).

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attacked the use of presidential power when in the hands of Democrats

271

now

called for unchecked power in the hands of the conservative, Bush.

In politics, so many maneuvers are opportunity based. September 11

created an opportunity for conservative presidentialists

272

to seize power and

pursue their political and policy objectives virtually unchecked. They were

not shy about using this power.

How did conservatives, so suspicious of centralized authority and big

government, embrace a brand of imperial presidential power that was

anything but conservative? In order to square that illogical circle, they would

have to rewrite American history, cherry pick the historical data, and ignore

the overwhelming weight of evidence to invent something called “the unitary

executive.”

273

The intellectual pedigree of the unitary executive

274

runs back to the

founding era, and to Alexander Hamilton, but this goal of creating a unitary

office refers to having one person at the helm of the executive branch; and—

according to the Framers—is not a grant of plenary power.

275

In fact, a careful

reading of Hamilton’s writings in The Federalist Papers undermines many

of the claims of the presidentialist camp.

276

And while “necessity” may make

the unitary executive an attractive alternative to the constitutional presidency

in an age of terrorism, such necessity does not make the unitary executive

constitutional.

277

If one defines the unitary executive narrowly, of course, there is a

unitary—or “one” executive. Yet, the contemporary advocates of the unitary

executive do not construe the office narrowly, but expansively.

278

They see

an office with plenary authority often unencumbered by a burdensome

Congress or a Constitution.

279

271. See John Yoo’s attack against President Clinton’s use of presidential power in John C. Yoo,

“The Imperial President Abroad,” in Roger Pilon, ed., T

HE RULE OF LAW IN THE WAKE OF CLINTON

(Washington, D.C.: Cato Institute, 2000).

272. Traditionally, conservatives have been suspicious of governmental and executive power, but

in the 1980s, some conservatives, seeing an opportunity for a strong presidency to be put to conservative

use, abandoned principle and called for the enlargement of presidential authority (at least when in the

hands of Ronald Reagan). See E

ASTLAND, supra note 235, at 2-3.

273. Id. at 2094.

274. A select few conservatives did resist the rise of presidential power, among them, see G

ENE

HEALY, THE CULT OF THE PRESIDENCY (Cato Institute, 2008).

275. See generally, The Federalist No. 70 (Alexander Hamilton).

276. Id.

277. See S

PITZER, supra note 270, at 125-28.

278. Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive,

Plural Judiciary, 105 H

ARV. L. REV. 1153, 1192, 1205 (1992).

279. See generally, J

OHN P. MACKENZIE, ABSOLUTE POWER: HOW THE UNITARY EXECUTIVE

THEORY IS UNDERMINING THE CONSTITUTION CENTURY (Found. Press, 2008); JAMES P. PFEIFFER,

POWER PLAY: THE BUSH PRESIDENCY AND THE CONSTITUTION 229-31 (Brookings Inst. Press, 2008).

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The modern academic cache for the unitary executive grew primarily out

of several law journal articles touting a “new originalist” construction of the

robust version of presidential power.

280

These law review articles have given

a brand of academic legitimacy to the unitary executive. Yet, even many

conservatives are skeptical of this newly discovered originalist construction

of broad presidential power.

281

Dissecting the unitary executive doctrine,

conservative columnist George F. Will refers to this “monarchical doctrine,”

writing “It is that whenever the nation is at war, the other two branches of

government have a radically diminished pertinence to governance, and the

president determines what that pertinence shall be.”

282

HE INTELLECTUAL ORIGINS OF THE UNITARY EXECUTIVE THEORY

Essentially, the intellectual pedigree for the Bush administration’s

expansive view of executive power can be seen in what is called the unitary

executive (some members of the administration referred to it as the “New

Paradigm”).

283

In some ways, it was merely a modern vision of Lockean

Prerogative, but in other ways, represented a new challenge to the rule of law.

While the administration rarely provided a comprehensive defense of its

actions, we can nonetheless make the arguments the administration should be

making in defense of its aggressive use of presidential power. Yet, even when

these arguments are presented, the Bush administration falls far short of being

persuasive.

THE UNITARY EXECUTIVE

284

Evidence Plausibility Index

1. John Locke (Second Treatise): executive

prerogative

Implausible

2. Alexander Hamilton’s “Energy in the

executive”

Marginal

280. See generally, Michael S. Paulsen, The Constitution of Necessity, 79 NOTRE DAME L. REV.

1257 (2004); Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive,

Plural Judiciary, 105 H

ARV. L. REV. 1153, 1205 (1992).

281. George Will, No Checks, Many Imbalances, R

EALCLEAR POLITICS (Feb. 16, 2006).

282. Id.

283. See Calabresi & Rhodes, supra note 281, at 1205; S

TEVEN G. CALABRESI AND CHRISTOPHER

S. YOO, THE UNITARY EXECUTIVE: PRESIDENTIAL POWER FROM WASHINGTON TO BUSH 3-4 (Yale Univ.

Press, 2008).

284. The Bush administration takes the Unitary Executive further than any previous presidency,

claiming that in an emergency or war, the president’s actions are “nonreviewable”. See 2003 Defense

Department memo, often referred to as the “torture memo”). Thus, the Bush administration asserts a crisis

presidency above the law, above the Constitution, and unbound of the separation of powers, rule of law,

and checks and balances. It is this conception of the presidency that the Supreme Court has tried to check

in the Rasul v. Bush, 542 U.S. 466 (2004), Hamdi v. Rumsfeld, 542 U.S. 507 (2004), and Hamden v.

Rumsfeld, 548 U.S. 557 (2006) decisions.

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3. The Constitution: Article II “Coordinate

Construction”

a. Executive Power

b. Commander-in-Chief clause

Marginal

4. Abraham Lincoln’s doctrine of necessity

a. The Constitution is not a suicide pact

Powerful

5. Clinton Rossiter’s Constitutional

Dictatorship

Marginal

6. Precedent: the history of presidential

aggrandizement of power

Plausible

7. Court Cases: United States v. Curtiss-Wright

Export Corp. (1936)

a. “sole organ doctrine”

Weak

The Unitary Executive is a model of presidential power which posits that

“all” executive powers belong exclusively to the president.

285

In its most

expansive form, the unitary executive sees presidential authority disembodied

from the separation of powers and checks and balances, and thus seems in

contradiction to the original model of constitutionalism envisioned by the

Framers.

286

The extremist or monarchical conception of presidential power

was posited by Richard M. Nixon when he said, “[W]hen the president does

it, that means that it is not illegal.”

287

OCKE’S “EXECUTIVE PREROGATIVE”

When, if ever, is a president justified in violating the Constitution? While

the word emergency does not appear in the Constitution, nor did the framers

include any provision for extra-constitutional crisis leadership, there was

ample historical precedent from other governments they might well have

included.

288

Some scholars believe that the Founders did envision the

possibility of a president exercising supra-constitutional powers in a time of

285. See generally, Yoo, supra note 10, at 730; Christopher S. Yoo, Stephen G. Calabresi, &

Laurence D. Nee, The Unitary Executive During the Third Half-Century, 1889-1945, 80 N

OTRE DAME L.

REV. 1, 108 (2004); Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive During the Second

Half-Century, F

AC. SCHOLARSHIP PENN L. 786, 801 (2003); Steven G. Calabresi & Christopher S. Yoo,

The Unitary Executive During the First Half-Century, F

AC. SCHOLARSHIP PENN L. 718, 1559 (1997);

Steven G. Calabresi & Saikrishna B. Prakash, The President’s Power to Execute the Laws, 104 Y

ALE L.J.

541, 663 (1994).

286. See F

REDERICK A.O. SCHWARZ, JR. & AZIZ Z. HUQ, UNCHECKED AND UNBALANCED:

PRESIDENTIAL POWER IN A TIME OF TERROR, 1-2 (New Press, 2007).

287. Id. at 1.

288. See N

ICCOLÒ MACHIAVELLI, DISCOURCES ON LIVY, Chap. 34, (Harvey C. Mansfield & Nathan

Tarcov trans., Univ. of Chi. Press, 1995) (describing the Roman’s use of temporary dictatorship in times

of crisis).

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144 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 47

national emergency.

289

But no such provision was written into the

Constitution.

Historically, if not constitutionally, during a crisis, the president assumes

extra- constitutional powers.

290

The separate branches—which, under normal

circumstances, are designed to check and balance one another—will usually

defer to a president in times of crisis.

291

The president’s institutional position

offers a unique vantage point from which he can more easily exert strong

crisis leadership, and the Congress, Courts, and public usually accept the

president’s judgments and power grabs.

292

The pedigree of this can be traced back to John Locke.

293

And yet, no

such Lockean prerogative found its way into the Constitution, and virtually

all evidence from the founding period suggests that the inventors of the

presidency openly rejected prerogative powers.

LEXANDER HAMILTON’S “ENERGY” IN THE EXECUTIVE

While most scholars of the presidency and the Constitution conclude that

the Framers invented an executive with limited authority grounded in a

separation and sharing of power under the rule of law

294

some modern

executive power advocates ignore the overwhelming bulk of the historical

record and selectively choose to cherry pick only those bits of evidence that

support their strong executive preference, and ignore the voluminous

evidence against their preferred view.

295

They often dismiss their critics

without facing them, creating a convenient constitutional shroud for

presidential power without doing the hard work of making the case for the

robust presidency they so desire, and making the separation-of-powers sing

with a distinctly, almost exclusively presidential voice.

296

Who, among the

Framers, is their guiding light? Not James Madison, known as the father of

the Constitution, but Alexander Hamilton. Advocates of the Bush position

claim Hamilton as an intellectual guide.

289. DANIEL P. FRANKLIN, EXTRAORDINARY MEASURES: THE EXERCISE OF PREROGATIVE POWERS

IN THE

UNITED STATES 20 (Univ. of Pittsburgh Press, 1991).

290. Michael A. Genovese, Presidential Leadership and Crisis Management 300-309,

RESIDENTIAL STUDIES QUARTERLY 16, no. 2 (Spring 1986); Michael A. Genovese, Presidents and

Crisis: Developing a Crisis Management System in the Executive Branch 82, I

NTERNATIONAL JOURNAL

WORLD PEACE (Spring 1987).

291. Genovese, Presidential Leadership,

supra note 291.

292. Id.

293. John Locke, Second Treatise, §§ 159-61.

294. See M

ICHAEL A. GENOVESE, THE POWER OF THE AMERICAN PRESIDENCY, 1789-2000, 9

(Oxford Univ. Press, 2000).

295. See E

ASTLAND, supra note 235.

296. See J

OHN C. YOO, THE POWERS OF WAR AND PEACE: THE CONSTITUTION AND FOREIGN

AFFAIRS AFTER 9/11, 143-181 (Univ. of Chi. Press, 2005); JOHN C. YOO, WAR BY OTHER MEANS (Atl.

Monthly Press, 2006).

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Elements of Hamilton’s case for an energetic presidency can be found in

Federalist Paper, number 70. It reads in part:

There is an idea, which is not without its advocates, that a vigorous

Executive is inconsistent with the genius of republican government .

. . .

Energy in the Executive is a leading character in the definition of

good government. It is essential to the protection of the community

against foreign attacks; it is not less essential to the steady

administration of the laws; to the protection of property against those

irregular and high-handed combinations which sometimes interrupt

the ordinary course of justice; to the security of liberty against the

enterprises and assaults of ambition, of faction, and of anarchy . . . .

A feeble Executive implies a feeble execution of the government. A

feeble execution is but another phrase for a bad execution; and a

government ill executed, whatever it may be in theory, must be, in

practice, a bad government. Taking it for granted, therefore, that all

men of sense will agree in the necessity of an energetic Executive, it

will only remain to inquire, what are the ingredients which constitute

this energy? . . .

The ingredients which constitute energy in the Executive are, first,

unity; secondly, duration; thirdly, an adequate provision for its

support; fourthly, competent powers.

297

But it must be pointed out, an energetic presidency is not an imperial or

prerogative presidency. If one reads with care, Hamilton’s comprehensive

analysis of presidential power found in The Federalist Papers, it is clear that

Hamilton’s energetic executive is embedded in a system of countervailing

and shared powers; it is not a presidency above or independent of the

Congress or the rule of law.

298

And Hamilton’s energetic executive is but a

part of the Framer’s story. Even Hamilton did not advocate so robust a

presidency as the unitary presidentialist advocates would like. Taken in its

totality, the evidence that emerges from a thorough examination of the

writings, speeches, and constitutional handiwork of the Framers, reveals a

more circumscribed presidency then the unitary advocates suggest.

297. The Federalist No. 70 (Alexander Hamilton).

298. Id.

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OORDINATE CONSTRUCTION

By combining two provisions of the Constitution, the executive power

clause and the Commander-in Chief clause (both in Article II), advocates of

the unitary executive theory see a geometric expansion of executive authority

where the parts, when added together, multiply in significance, creating a

prerogative authority for the president. Conveniently forgotten is the fact that

the president also takes an oath of office to “preserve, protect, and defend the

Constitution of the United States.”

299

He must therefore, “take Care that the

Laws be faithfully executed,”

300

even the laws with which he may personally

disagree.

301

This binds the president to the rule of law.

302

Some see presidential authority in times of crisis and war as creating an

executive of virtually unchecked power.

303

A September 25, 2002 Office of

Legal Counsel (OLC) memo argues that “[t]hese decisions [in wartime],

under our Constitution, are for the President alone to make.”

304

Other OLC

memos suggest that the president may make things that are unlawful or

lawful, and that neither the Congress nor the Courts have the authority to

review presidential acts in a time of war.

305

But such an expansive reading

of the Constitution violates both the spirit and the letter of the law. The

Supreme Court, in cases such as Hamdi v. Rumsfeld (2004)

306

and Rasul v.

Bush (2004),

307

and Congress, in efforts such as their ban on the use of

torture

308

(a bill President Bush signed, but in a “Signing Statement” argued

that while he was signing the bill into law, he did not consider himself bound

299. See U.S. CONST. art. 2, § 1, cl. 8.

300. See U.S. C

ONST. art. 2, § 3.

301. It is here that the Bush efforts to defy law become so relevant. See, for example, the growing

literature on presidential “signing statements”. See C

HARLIE SAVAGE, TAKEOVER: THE RETURN OF THE

IMPERIAL PRESIDENCY AND THE SUBVERSION OF AMERICAN DEMOCRACY 230 (Little, Brown, & Co.,

2007); Charles Savage, Bush Cites Authority to Bypass FEMA Law, T

HE BOSTON GLOBE (Oct. 6, 2006);

Charles Savage, Bush Challenges Hundreds of Laws, THE BOSTON GLOBE (May 13, 2006).

302. See Michael A. Genovese, Must a President Obey the Law?, W

HITE HOUSE STUDIES 8, no. 1

(2008): 3-17.

303. The Bush position can best be seen in a series of memos circulated within the administration

and later leaked to the press, best known as the “Torture Memos.” See Memorandum from Jay Bybee,

Asst. A.G., to White House Counsel, 31 (Aug. 1, 2002) (hereinafter the “Bybee memo”); Memorandum

from John C. Yoo, Asst. A.G. to the White House, to White House Counsel 6 (Sept. 25, 2001) (hereinafter

the “Yoo memo”) (the author argues for a unitary view of executive).

304. Jane Mayer, The Hidden Power, N

EW YORKER (June 26, 2006),

https://www.newyorker.com/magazine/2006/07/03/the-hidden-power?irclickid=TfBUnRSXTxyOWjLw

Ux0Mo3bxUkiXxc3q0Th3y40&irgwc=1&source=%E2%80 %A6.

305. See Michael A. Genovese & Robert J. Spitzer, Re-examining the War Powers, PRG

NEWSLETTER 30, no. 1, 1 (Jan. 2006).

306. Hamdi, 542 U.S. at 509.

307. Rasul, 542 U.S. at 484-85.

308. Detainee Treatment Act of 2005, 42 U.S.C. § 2000dd, (a)-(d) (2005).

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by the law he had just signed),

309

have attempted to reclaim some of the power

that was lost, delegated, ceded, or stolen.

310

HE DOCTRINE OF NECESSITY

Perhaps no claim by the Bush administration resonates as powerfully as

the “necessity” argument. The old Roman adage Inter Arma Silent Leges (in

war, the laws are silent), while not constitutionally valid, still holds politically

persuasive power.

311

Abraham Lincoln relied on the doctrine of necessity

during the Civil War, arguing to Congress on July 4, 1861:

[T]he attention of the country has been called to the proposition that

one who is sworn to ‘take care that the laws be faithfully executed’

should not himself violate them. Of course some consideration was

given to the questions of power and propriety before this matter was

acted upon. The whole of the laws which were required to be

faithfully executed were being resisted and failing of execution in

nearly one-third of the States. Must they be allowed to finally fail of

execution, even had it been perfectly clear that by the use of the . . .

tenderness of the citizen’s liberty that practically it relieves more of

the guilty than of the innocent, should to a very limited extent be

violated? To state the question more directly, Are all the laws but

one to go unexecuted, and the Government itself go to pieces lest that

one be violated? Even in such a case, would not the official oath be

broken if the government should be overthrown when it was believed

that disregarding the single law would tend to preserve it?

312

Lincoln believed that it was a union (nation) that above all else had to be

preserved, because without that union, the Constitution and the rule of law

would be meaningless.

313

In short, the Constitution was not a suicide pact.

314

Had the Bush administration relied more heavily on the necessity

argument they would have been on powerful (if still unconstitutional) ground.

Instead, they chose to go further. They claimed that not only is it necessary

(for national security reasons) to go beyond the law, but that in such cases,

309. Charlie Savage, Bush Could Bypass New Torture Ban: Waiver Right is Reserved, THE BOSTON

GLOBE (Jan. 4, 2006) http://archive.boston.com/news/nation/articles/2006/01/04/bush_could_bypass_ne

w_torture_ban/.

310. See supra note 302.

311. See M

ACHIAVELLI, supra note 289, at Chap. 34, (describing the Roman’s use of temporary

dictatorship in times of crisis).

312. Abraham Lincoln, President of the United States, July 4th Message to Congress (July 4, 1861).

313. See D

ANIEL FARBER, LINCOLN’S CONSTITUTION 198 (Univ. of Chi. Press, 2003).

314. See R

ICHARD A. POSNER, NOT A SUICIDE PACT: THE CONSTITUTION IN A TIME OF NATIONAL

EMERGENCY (Oxford Univ. Press, 2006).

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violating the law is not “really” violating the law.

315

They are, they argue,

above the law; they are the law in times of war.

316

The Bush administration claims a legal basis for the monarchical

presidency.

317

While the evidence of such a legal footing is minimal at best,

this assertion, matched by bold action, meeting little congressional

opposition, became practice and perhaps, precedent. A claim of Nixonian

proportions, it quite literally does away with law and replaced it with the will

of the executive. This monarchical view entered the political world after

9/11, and a bogus doctrine rejected in the 1970’s became practice in 2001 and

beyond.

318

While the Supreme Court, on several occasions, sought to delegitimize

these monarchical pretensions,

319

the president proceeded as if the court

decisions were merely an annoying fly to be swatted away, then ignored. A

series of OLC memos attempt to place a legal fig leaf over these claims of

power, yet most are mere assertions of power with scant evidence.

320

Combine these memos with the president’s view of “signing statements” (that

he can sign a bill into law yet claim that he need not follow the law he just

signed)

321

and you have a president above the law.

And yet, this is precisely the executive the framers sought to control

under the rule of law and separation of powers.

322

Theirs was not a president

of the kingly prerogative. As Justice Robert Jackson wrote in Youngstown,

“the prerogative exercised by George III, and the description of its evils in

the Declaration of Independence” left no doubt that the framers stripped the

new president of kingly prerogative

323

President Lincoln never made such bold and audacious claims. Even as

he went beyond the letter of the law, he never claimed an inherent authority

to breach the law, and he always recognized that Congress had the ultimate

authority to reject his claims of power.

324

If Lincoln momentarily went

beyond the law—out of necessity—it was still the law and not his will that

315. See Torture Memo, supra note 285.

316. A Guide to the Memos on Torture, N.Y.

TIMES, https://archive.nytimes.com/www.nytimes.com

/ref/international/24MEMO-GUIDE.html?r=0 (last accessed Jan. 8, 2021).

317. Derek Jinks & David Sloss, Is the President Bound by the Geneva Conventions, 90 C

ORNELL

L. REV. 97, 149-50 (2004).

318. Id.

319. E.g., Rasul, 542 U.S. 466.

320. See Bybee Memo, supra note 304; Working Group Report on Detainee Interrogations in the

Global War on Terrorism: Assessment of Legal, Historical, Policy, and Operational Considerations (Apr.

4, 2003), http://hrlibrary.umn.edu/OathBetrayed/Rumsfeld%204-4-03.pdf; Jane Mayer, The Memo, T

NEW YORKER (Feb. 20, 2006), https://www.newyorker.com/magazine/2006/02/27/the-memo.

321. See S

AVAGE, supra note 302, at 229.

322. See U.S. C

ONST. art. 1, § 1; art. 2. § 1; art. 3, § 1.

323. Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 641 (1952).

324. Abraham Lincoln, President of the United States, July 4th Message to Congress (July 4, 1861).

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was to be supreme. And he called upon the Congress to retroactively approve

of his wartime decisions.

325

It is this distinction that separates the Bush

version of prerogative from that of his predecessors.

Only if acts are truly necessary to preserve the nation, might a president

act beyond the scope of the Constitution. Lincoln was a servant of the law

and the Constitution, even as he acted beyond their literal scope, never

claiming an inherent power to act beyond the law.

326

Lincoln believed the

authority of the government was, during a crisis, the authority to act in

defense of the nation, believing he was venturing on congressional territory.

He never claimed that all authority was his, but only that in a crisis, the

doctrine of necessity embodied authority in the government; authority that

the president brought to life. He suggested that acts “whether strictly legal or

not, were ventured upon under what appeared to be a popular demand and a

public necessity . . . . It is believed that nothing has been done beyond the

constitutional competency of Congress.”

327

Thus, in a legitimate emergency,

the people demand that the president act, and the president’s actions are

permissible only if the Congress maintains its authority to control and limit

or reject the actions of a president.

328

“Must,” he asked, “a government of

necessity be too strong for the liberties of its own people, or too weak to

maintain its own existence?”

329

ELECTED SUPPORTIVE COURT DECISIONS

In general, the courts have not served as a very effective check on

presidential power.

330

While there have been times when the courts were

willing to stand up to the president (e.g., some of the Civil War cases, early

in the New deal era, late in the Watergate period, at times in the war against

terrorism and during the Trump presidency), overall, the courts have tended

to shy away from direct confrontations with presidents, and were often

willing to defer to or add to the powers of the presidency.

Defenders of the powerful presidency gravitate towards one court case in

particular, United States v. Curtiss-Wright Export Corp. (1936).

331

In that

case, Justice George Sutherland, drawing on a speech in the House of

Representatives by then member of Congress, John Marshall, referred to the

325. Id.

326. Id.

327. Id.

328. Id.

329. Abraham Lincoln, President of the United States, July 4th Message to Congress (July 4, 1861).

330. See generally, M

ICHAEL A. GENOVESE, THE SUPREME COURT, THE CONSTITUTION, AND

PRESIDENTIAL POWER (Univ. Press of Am., 1980); GLENDON A. SCHUBERT, THE PRESIDENCY IN THE

COURTS (Univ. of Minn. Press, 1957); Louis Fisher, Judicial Review of the War Power, 35 PRESIDENTIAL

STUDIES Q. 466 (2005).

331. United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936).

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president as “the sole organ” of American foreign policy.

332

This reference

found its way into Sutherland’s opinion and became a rallying cry for

presidentialists.

333

While Sutherland’s “sole organ” remark was merely a

judicial aside (dicta), it has become the unofficial executive branch mantra

for any president’s bold assertion of a broad and unregulated power over

foreign affairs. But scholars have found little in Curtiss-Wright to rely on in

the defense of the prerogative presidency, and other than defenders of

presidential power, this case is not seen as significant in granting presidents

expansive powers.

334

It may be of comfort, but only small comfort to

defenders of presidential power and exclusivity in foreign policy.

Interestingly, presidentialists rarely cite the number of cases that limit the

president’s imperial authority.

HE CONSTITUTIONAL DICTATORSHIP

Scholar Clinton Rossiter’s “Constitutional Dictatorship” is an effort to

resolve the problem Locke and other democratic theorists attempted to

solve.

335

The “Constitutional Dictatorship”, is a stark admission of the failure

of democratic theory to come to terms with prerogative.

336

Of course,

nowhere in the Constitution is it specified that the president should have

additional powers in times of crisis. However, history has given us ample

precedents where in times of crisis, the powers of the president have

swollen.

337

The constant reliance on the executive to solve the many “emergencies”

(some self-defined by the president) facing the nation could well lead to the

acceptance of the overly powerful executive and make the meaning of the

term “emergency” shallow and susceptible to manipulation. With each new

“emergency” in American history, the public and our political system may

become more accustomed to accepting a broader definition of presidential

power to meet each new crisis.

The Court under Rossiter’s constitutional dictatorship generally

recognizes the need for government to have inflated powers with which to

deal with the crisis, and it will often allow for a “flexible” interpretation of

constitutional powers of the president, who is expected to deal with the

emergency.

338

Rossiter comes to this conclusion: “In the last resort, it is

332. Id. at 319.

333. Id.

334. Louis Fisher, The Staying Power of Erroneous Dicta: From Curtiss-Wright to Zivotofsky, 31

ONST. COMMENTARY 149, 150 (2016).

335. C

LINTON ROSSITER, CONSTITUTIONAL DICTATORSHIP: CRISIS GOVERNMENT IN THE MODERN

DEMOCRACIES 12-13 (Princeton Univ. Press, 1948).

336. Id.

337. Id. at 12.

338. Id.

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always the executive branch in the government which possesses and wields

the extraordinary powers of self-preservation of any democratic,

constitutional state.”

339

Under Rossiter’s theory, the court recognizes the emergency and allows

the president to employ additional powers.

340

But to be legitimate, the

constitutional dictator must recognize the limits on his actions. Franklin D.

Roosevelt, in 1942, after requesting of Congress a grant of an unusually large

amount of power, assured the legislature that “[w]hen the war is won, the

powers under which I act automatically revert to the people—to whom they

belong.”

341

The executive, in short, must return the extraordinary powers it

grabbed during the crisis back to their rightful place.

HE HEAVY WEIGHT OF PRECEDENT

Advocates of the unitary executive view argue that there is sufficient

precedent to justify inflated claims of presidential power in an emergency.

342

Lincoln during the Civil War, Woodrow Wilson in World War I, Franklin D.

Roosevelt in the Great Depression and World War II, and others paved the

path that Bush would later follow. But so too did Richard Nixon, and while

his acts are almost universally condemned, his “when the president does, it

that means it is not illegal” motto clearly lives on today in the Trump

administration.

343

Presidents Lincoln, Wilson, and Roosevelt may have exercised

emergency powers in the midst of crises, but other presidents such as Richard

Nixon also attempted to grab extra constitutional power and were rebuffed

and condemned.

344

What made Lincoln and FDR heroes, and Nixon a

usurper? The predicate is a legitimate and widely recognized crisis. Only

when there is a genuine emergency can a president attempt to exercise extra

constitutional power. Also, the other branches and the public must be willing

to cede to the president these powers.

345

Third, the president must remain

willing ultimately to bow to the will of Congress if it chooses to set policy or

limit the president’s exercise of power. And the president cannot use secrecy

and distortion to hide from Congressional or public scrutiny. In general,

Lincoln and FDR followed these guidelines; Nixon did not. And what of the

339. Id.

340. R

OSSITER, supra note 336, at 12-13.

341. Presidential Theory of the Commander-in-Chiefship in WWII-And Beyond, J

USTIA,

https://law.justia.com/constitution/us/article-2/09-presidential-theory-of-the-commander.html#fn-147

(last accessed Jan. 8, 2020) (quoting President Roosevelt’s message to Congress of Sept. 7, 1942).

342. Yoo supra note 10, at 729-30.

343. S

CHWARZ & HUQ, supra note 287, at 1.

344. T

HOMAS E. CRONIN ET AL, THE PARADOXES OF THE AMERICAN PRESIDENCY 96-97 (5th ed.

2018).

345. Id. at 129.

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case of George W. Bush in the post 9/11 era? Bush may have had the

predicate, but he was reluctant to place himself within the rule of law, bowing

only when his popularity plummeted to the thirty percent range,

346

and the

courts chided him on several occasions, and the Congress belatedly reasserted

its authority after the opposition Democrats won control of Congress in

2006.

347

Until then, he exercised extra constitutional power and claimed that

his acts were not reviewable by Congress or the Courts, often cloaking his

actions in secrecy and duplicity.

348

Such a bold and illegitimate interpretation

of the president’s prerogative powers is unsupportable in law or history.

The Bush administration took the Unitary Executive further than any of

its predecessors, claiming that in war the president’s actions are

nonreviewable.

349

Thus, the Bush administration asserted a prerogative

presidency that was above the law, above the Constitution, and unbound of

the separation-of-powers, rule of law, and checks and balances. In this, the

Bush defense would add a seventh leg to the unitary executive: no other

branch may question our actions. And if the Bush administration’s view

became accepted, who is to say that the emperor has no clothes?

Precedent is, at best, of limited utility as a guide for presidential action.

350

After all, repetition does not legalize that which is illegal. Because people

continue to rob banks, does not mean that such an ongoing action legitimizes

robbery. In the same way, merely because presidents have engaged in a

certain activity cannot make the illegal, legal. Mere repetition does not

legitimize.

Extreme times may sometimes lead to and even justify extreme measures.

The terrorist attacks of September 11, 2001 became the predicate allowing an

obscure and intellectually threadbare theory of presidential unilateralism to

assume center stage and attain a patina of legitimacy to what otherwise should

be dismissed out of hand as an extreme and indefensible position.

351

After all, it must be remembered the framers rejected Locke’s prerogative

in favor of checks and balances. They rejected Hamilton’s expansive

executive for Madisonian equilibrium.

352

While “necessity” is a powerful

346. Lydia Saad, Bush’s Approval Rating Back in Low 30s, GALLUP (Oct. 9, 2007),

https://news.gallup.com/poll/101695/bush-approval-rating-returns-low-30s.aspx.

347. Charles E. Schumer, Under Attack: Congressional Power in the Twenty-First Century, 1

HARV. L. & POL’Y REV. 3, 39-40 (2007).

348. See generally, Charles Lewis & Mark Reading-Smith, False Pretenses, THE CENTER FOR

PUBLIC INTEGRITY (June 23, 2014), https://publicintegrity.org/politics/false-pretenses/.

349. Memorandum from Jay S. Bybee, Assistant Attorney Gen., U.S. Dep’t of Justice to Alberto R.

Gonzales, Counsel to the President, On Standards of Conduct for Integration under 18 U.S.C. §§2340-

2340a. (Aug. 1, 2002).

350. C

RONIN, supra note 345, at 3.

351. Bybee Memo, supra note 304.

352. C

RONIN, supra note 345, at 92.

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argument, it is not a constitutional argument.

353

The framers did, in Article

II, give the president executive power, but it was not absolute, and they did

make the president commander-in-chief, but subject to the Congress, so the

coordinate construction doctrine cannot be seen in isolation and can only be

understood along with Article I. The constitutional dictatorship may well

describe our political response to crisis, but that by no means confers a

constitutional legitimacy. Precedent clearly suggests that over time the

powers of the president have evolved and grown, but so too has history shown

us times when the Congress has chosen to tame the prince and limit executive

authority. While Curtiss-Wright

354

may be canonical to presidentialists, a

thorough examination of court cases dealing with executive power reveals a

much more nuanced and complex portrait of a court that may sometimes

shrink from confrontations with the executive but may also at times stand up

to and limit power grabs by the president (as Youngstown, Hamdi, Rasul, and

Hamden suggest).

355

Modern day presidentialists such as John Yoo, who served in the Office

of the Legal Counsel in the Justice Department in the early years of the Bush

administration, leapfrog backwards, largely ignoring the work of the framers,

preferring instead to go back to the very British precedents our framers

rejected. As Yoo writes, “In interpreting the meaning of the Declare War

Clause, we should not look exclusively at what a particularly influential

Framer said about the provision at the Federal Convention. To better

understand historical context, we should look to the British constitution . . .

.”

356

If the framers rejected the British model, why should we look to it for

guidance? It is to the framers and the Constitution that we must look, not to

the rejected doctrines of the prerogatives of the Crown.

357

In War by Other Means, Yoo reveals his selective use of evidence by

admitting “I decided to take Hamilton as my role model,”

358

(italics not in

original). Decided to take Hamilton? One doesn’t decide what evidence to

accept and reject on the basis of personal preference but on the full weight of

all the evidence. If anyone should serve as a model of the Constitution, it is

James Madison.

359

Evidence, not choice must guide judgement.

360

353. Id.

354. Curtiss-Wright Export Corp., 299 U.S. at 319.

355. See generally Youngstown Sheet & Tube Co., 343 U.S. at 579; Hamdi, 542 U.S. at 507; Rasul,

542 U.S. at 466; Hamden, 548 U.S. at 557.

356. Y

OO, THE POWERS OF WAR AND PEACE, supra note 297, at 27.

357. C

RONIN, supra note 345, at 93.

358. Y

OO, WAR BY OTHER MEANS, supra note 297, at xii.

359. C

RONIN, supra note 345, at 94.

360. For a critique of Yoo’s view, see David Luban, The Defense of Torture, 54 N

EW YORK REVIEW

BOOKS 37-40 (2007).

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ACK TO THE FUTURE: DICK CHENEY’S IRAN-CONTRA UNITARY

MONARCHIAL PLAYBOOK

The unitary executive and the conservative imperial presidency was not

a 9/11 creation.

361

Actually, the playbook for the conservative unilateral

presidency was scripted during the Reagan years by a little-known member

of Congress named Dick Cheney.

362

In the minority report of the Iran-Contra committee,

363

Cheney unfolded

a blueprint for presidential dominance that, as vice-president during 9/11, he

was able to implement through the compliant President Bush.

364

Mr. Cheney

first began calling for a monarchical presidency in the aftermath of Watergate

and the resignation of Richard Nixon.

365

This view was reinforced when

Ronald Reagan faced backlash from the Iran-Contra scandal.

366

The

presidency, Cheney felt, was under siege.

367

The post-Watergate reforms

weakened the executive and the US response to the crimes of the Reagan

presidency brought about a weakened presidency.

368

In a dangerous world,

Cheney asserted, only a strong president can save us.

369

Cheney went so far

in the 1987 minority report as to call for “monarchical notions of prerogative”

for the presidency.

370

When Cheney got his chance, that is precisely what he

promulgated. The 9/11 presidency of George W. Bush concentrated powers

(e.g., surveillance of US citizens, torture, etc.) into the hands of one man.

371

As Cheney wrote in the Minority Report, “[T]he Chief Executive will on

occasion feel duty bound to assert monarchical notions of prerogative that

will permit him to exceed the law.”

372

NITARY, BUT NOT FOR OBAMA

Conservatives were quick to trim the sails of the presidency when in the

hands of the opposition party, especially in the hands of Barack Obama.

373

361. Michael A. Fitts, The Paradox of Power in the Modern State: Why A Unitary, Centralized

Presidency May Not Exhibit Effective or Legitimate Leadership, 144

U. PA. L. REV. 827, 841 (1996).

362. Minority Report, in Report of the Congressional Committees Investigating the Iran-Contra

Affair, H.R. Rep. No. 100-433, S. Rep. No. 100-216, (1987).

363. Id.

364. Aryn Subhawong, A Realistic Look At The Vice Presidency: Why Dick Cheney Is An “Entity

Within The Executive Branch”, 53 S

T. LOUIS U. L.J. 281, 282 (2008).

365. H.R. Rep. No. 100-433.

366. Id. at 585.

367. Id.at 445.

368. Id. at 445.

369. Id. at 450.

370. H.R. Rep. No. 100-433 at 465.

371. For a review of the unitary theory from a conservative perspective, see S

TEVEN G. CALABRESI

& CHRISTOPHER S. YOO, THE UNITARY EXECUTIVE (2008).

372. H.R. Rep. No. 100-433 at 465.

373. C

RONIN, supra note 345, at 101.

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Of course, our views often change depending on whose ox is being gored,

and thus, a bit of backtracking is to be expected. But many Republican

leaders in Congress were determined to do more than merely check Obama’s

powers. Many Republicans took the “no compromise” pledge, vowing to

never work with or support President Obama.

374

Senate Minority leader

Mitch McConnell went so far as to tell the National Journal, “The single most

important thing we want to achieve is for President Obama to be a one-term

president . . . .”

375

The mere existence of a black president caused a nightmarish backlash

against President Obama.

376

It also spawned a Tea Party revolt of right-wing

citizens who were outraged that among other things, “the other” was in the

White House. They wanted to “take back” the government from “them.”

When given a chance, these angry voters elected someone about as opposite

from Obama as one could imagine.

377

Some Republicans and conservatives reacted harshly to these changes.

378

A Tea Party (TEA referring to “Taxed Enough Already”) movement rose,

advocating a variety of not always consistent policies (one oft seen poster at

Tea Party rallies was: “Government. Keep Your Hands Off My Medicare!”),

but one that was anti-establishment and anti-elitist.

379

It would help propel

Donald Trump into the White House.

380

ONALD J. TRUMP AND THE UBER-UNITARY EXECUTIVE ON STEROIDS

Donald Trump is different. The only president ever elected who had

neither military or political experience, Trump approached power not as a

seasoned political veteran accustomed to the give and take of bargaining and

compromise, but as the head of a family business accustomed to getting his

way.

381

His business style would clash with the requirements of liberal

democracy.

382

Trump was more comfortable as the “grand jefe” uneasy with

374. Joseph Fishkin & David E. Pozen, Asymmetric Constitutional Hardball, 118 COLUM. L. REV.

915, 947 (2018).

375. James R. Carroll, Mitch McConnell under fire for saying top priority is making Obama one-

term president, L

OUISVILLE COURIER-JOURNAL (Oct. 26, 2010), https://www.tevitroy.org/8245/mcconnel

l-under-fire.

376. Jared A. Goldstein, The Tea Party Movement and the Perils of Popular Originalism 53

ARIZ.

L. REV 827, 833 (2011).

377. Id. at 832.

378. Id.

379. Id.

380. Jared A. Goldstein, Unfit for the Constitution: Nativism and the Constitution, from the

Founding Fathers to Donald Trump, 20

U. PA. J. CONST. L. 489 (2018).

381. C

RONIN, supra note 345, at ix.

382. Neil S. Siegel, After the Trump Era: A Constitutional Role Morality for Presidents and

Members of Congress, 107

GEO. L.J. 109, 114 (2018).

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the give and take of politics.

383

He was better suited to an illiberal democracy

where a strongman could dominate.

384

Trump’s imperial style and imperious claims clashed—as they inevitably

would—with a checks and balance, separation of powers system.

385

Acting

more like a king than a president, Trump’s Let etat sem oui attitude while

incompatible with limited government, was well suited to his experience and

his personality.

386

Table 1: The Conservative Migration to Big Government/Big Presidency

Date Approach Leading Advocates

1950s-

60s

Whig Model . . . small government,

limited presidency

William F. Buckley

National Review

Wilmoore Kendall

Barry Goldwater

1950s-

80s

Cold War vs. Soviet Union . . .

Assertive president in foreign

affairs

Republican Senator Arthur

Vandenberg

Rep. Senator Robert Taft

Richard M. Nixon

Rep. Senator Joseph

McCarthy

1970s Administrative presidency . . . to

circumvent Congress and allow the

president to govern “when the

president does it, that means it is

not illegal.” -Richard M. Nixon

Richard M. Nixon

1980s The Reagan Revolution Ronald Reagan

1987 Post-Watergate, Post-Iran-

Contra—need to empower

presidency and unilateral powers

Iran-Contra Committee Minority

Report

Congressman Dick

Cheney

2001 Post-9-11 Unilateral Presidency

President’s actions in war time non-

reviewable

Dick Cheney—VP

George W. Bush—

President

383. Id. at 171.

384. C

RONIN, supra note 345, at ix.

385. Siegel, supra note 383, at 199.

386. Siegel, supra note 383, at 200.

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Unitary executive Federalist Society

John Yoo

2017 Imperial Presidency

“Divine Right”

President above the law

Donald J. Trump

Attorney General William

Barr

Trump repeatedly made assertions that he was above the law.

387

Extending the unitary executive into a divine right argument, Trump bristled

at a Congress that would not bend to his will, and repeatedly attacked the

judiciary for finding many of his acts illegal or unconstitutional.

388

As president, Donald Trump promoted an illiberal view of power.

389

Where liberal democracy meant rule of law, checks and balances, limited

government, and a constrained executive, illiberal democracy promoted the

view that the voters—as electors—were the limit or check on the executive

(or Congress, but only through impeachment; even in budgeting matters, the

executive reigned supreme).

390

Under illiberal democracy, a president, once

elected, had vast amounts of unilateral power with very few restrictions (See

Table 1 for the progression to a Trump presidency).

391

As Attorney General

Barr noted in a June 8, 2018 memo to the Justice Department “Thus, under

the Framers’ plan, the determination whether the President is making

decisions based on ‘improper’ motives or whether he is ‘faithfully’

discharging his responsibilities is left to the People, through the election

process, and the Congress, through the Impeachment process,” Barr wrote.

392

And while Mr. Barr did not quite say it, a president who acted in an improper

or illegal way, but who is reelected or who escapes impeachment, could be

above the law.

An illiberal president would—as Trump has done—repeatedly attack and

try to weaken the institutions that might block or interfere with the

president.

393

Thus, attacks against the courts (e.g., “so called judges”),

394

the

press (“enemy of the people”),

395

Congress (cannot have his tax returns

because it is not “impartial”), and the US intelligence agencies (backing

387. CRONIN, supra note 345, at 189.

388. Id.

389. Siegel, supra note 383, at 190.

390. C

RONIN, supra note 345, at x.

391. Id.

392. Bill Barr Memorandum, Re: Mueller’s ‘Obstruction’ Theory, (June 8, 2018).

393. Siegel, supra note 383, at 200.

394. Donald Trump (@realDonaldTrump), Twitter (Feb. 4, 2017), https://twitter.com/realdonaldtru

mp/status/827867311054974976?lang=en.

395. Donald Trump (@realDonaldTrump), Twitter (Apr. 7, 2020), https://twitter.com/realdonaldtru

mp/status/125476 9296280031232?lang=en.

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Putin’s claims that he did not interfere with the US elections) were frequent

and at times effective.

396

While the Tea Party began as an anti-tax/anti-big government movement,

and had a significant impact in electing Donald Trump president, once in

office two peculiar things occurred: first, Trump abandoned them agreeing to

deficit-busting budgets of over one trillion per year (the largest in history);

and second, most Tea Party members either do not know or did not care.

397

Rather than losing their support, Trump cemented it. In Trump, Republicans

and conservatives now have a president who espouses big government (e.g.,

a trillion-dollars plus deficit), a big presidency (“I alone can fix it”),

398

and a

unilateral, and in many ways a monarchical conception of power.

399

ONALD TRUMP AND THE DEATH OF CONSERVATISM

The culmination of the conservative migration from a small

government/limited presidency approach, to proponent of illiberal democracy

signifies the death of conservatism in America.

400

As Hacker and Pierson

write, “Over the last two and half decades, the GOP has mutated from a

traditional conservative party into an insurgent force that threatens the norms

and institutions of American democracy.”

401

And as they further note,

The radicalism of the GOP means that it is no longer a conventional

conservative party. It now displays characteristics of what scholars

of comparative politics call an “antisystem party”—one that seeks to

foment tribalism, distort elections, and subvert political institutions

and norms. Although these tendencies appeared well before Trump’s

election, they have grown only stronger under his presidency.

In short, Madison’s formula for ensuring moderation has stopped

working. Extremism on the right, rather than provoking a

moderating reaction, has become self-reinforcing. Positions that

were once at or beyond the outer fringe of American conservatism

have become first acceptable and then Republican orthodoxy . . . .

396. Donald Trump (@realDonaldTrump), Twitter (July 27, 2019), https://twitter.com/realdonaldtr

ump/status/1155240345585750016.

397. Trump’s Staunch GOP Supporters Have Roots in the Tea Party, P

EW RESEARCH CENTER (May

16, 2019), https://www.pewresearch.org/politics/2019/05/16/trumps-staunch-gop-supporters-have-roots-

in-the-tea-party/.

398. Yoni Appelbaum, ‘I Alone Can Fix It’, T

HE ATLANTIC (July 21, 2016), https://www.theatlantic

.com/politics/archive/2016/07/trump-rnc-speech-alone-fix-it/492557/.

399. Marc Mohan, Originalist Sin: The Failure of Originalism to Justify the Unitary Executive

Theory, 24

LEWIS & CLARK L. REV. 1063, 1068-69 (2020).

400. Jacob S. Hacker & Paul Pierson, The Republican Devolution,

FOREIGN AFFAIRS (July/August

2019), https://www.foreignaffairs.com/articles/2019-06-11/republican-devolution.

401. Id.

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2021] POWER ABOVE PRINCIPLE 159

Trump’s presidency has reinforced the GOP’s insurgent nature, as he

and his allies have launched attacks on the foundations of

democracy—the press, the courts, law enforcement, the political

opposition—with virtually no pushback or even complaints from

within their party.

These norm-exploding stances raise the specter of democratic

backsliding of a kind that seemed impossible only a few years ago.

Yet they are less a departure from the recent history of the Republican

Party than a hastening of its march down an alarming path.

402

In a 2019 editorial from The Economist, the magazine warns of the

dangerous direction towards which contemporary conservatism is headed.

403

Jettisoning traditional conservative principles and positions, today’s

conservatism has morphed into a radical, insurgent populism that undermines

traditional conservative values.

404

They wrote,

Conservatism is not so much a philosophy as a disposition. The

philosopher Michael Oakeshott put it best: “To be conservative . . .

is to prefer the familiar to the unknown, to prefer the tried to the

untried, fact to mystery, the actual to the possible, the limited to the

unbounded, the near to the distant.” Like classical liberalism,

conservatism is a child of the Enlightenment. Liberals say that social

order emerges spontaneously from individuals acting freely, but

conservatives believe social order comes first, creating the conditions

for freedom. It looks to the authority of family, church, tradition and

local associations to control change, and slow it down. You sweep

away institutions at your peril. Yet just such a demolition is

happening to conservatism itself—and it is coming from the right.

The new right is not an evolution of conservatism, but a repudiation

of it. The usurpers are aggrieved and discontent. They are pessimists

and reactionaries. They look at the world and see what President

Donald Trump once called “carnage.”

Consider how they are smashing one conservative tradition after

another. Conservatism is pragmatic, but the new right is zealous,

ideological and cavalier with the truth.

405

402. Id.

403. The Global Crisis in Conservatism,

THE ECONOMIST (July 4, 2019).

404. Id.

405. Id.

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While conservatives have traditionally been cautious about change, today’s

conservatives espouse truly revolutionary policies and approaches to

governing.

406

As the Economist concludes. At its best conservatism can be a

steadying influence. It is reasonable and wise; it values competence; it is not

in a hurry. Those days are over. “Today’s right is on fire and it is

dangerous.”

407

President Trump’s repeated legal troubles, his impeachment, and the

post-impeachment purge of his administration reflect a dubious legal doctrine

that he is legally above the law as he occupies an office with nonreviewable

plenary powers.

408

The leader of a party that was once the party of limited

government, Trump has acted upon a discredited constitution theory that the

presidency is all-powerful and immune from legal restrictions.

409

In a Manhattan case dealing with Trump’s payment of hush-money to

Stormy Daniels, the President’s attorney William Consovoy argued before

the 2

Circuit Court of Appeals that as president, Mr. Trump is immune from

any judicial intervention or remedy for his actions.

410

Trump himself has said

in July of 2019 that, “I have an Article II, where I have the right to do

whatever I want as President.”

411

And his lawyer at the Senate Impeachment

trial, Alan Dershowitz, argues that anything a president does to help get re-

elected is in the national interest and cannot be an impeachable offense.

412

And in a tweet about the Roger Stone case, Trump claimed that he had a

“legal right” to interfere in criminal cases.

413

Trump also tweeted in June of 2018 that he had “the absolute right to

pardon myself,”

414

asserted that he had the power to end birthright citizenship

406. Id.

407. Id.

408. President Trump Impeached and Acquitted of Charges Relating to His Conduct of Foreign

Affairs, 114

AM. J. INTL. L. 495 (2020).

409. Washington v. Trump, 847 F.3d 1151, 1161 (9th Cir. 2017).

410. Ann E. Marimow & Jonathan O’Connell, In court hearing, Trump lawyer argues a sitting

president would be immune from prosecution even if he were to shoot someone, T

HE WASHINGTON POST

(Oct. 23, 2019), https://www.washingtonpost.com/local/legal-issues/ny-based-appeals-court-to-decide-

whether-manhattan-da-can-get-trumps-tax-returns/2019/10/22/8c491346-ef6e-11e9-8693-f487e46784aa

_story.html.

411. President Donald Trump, Address to Turning Point USA’s Teen Student Action Summit 2019

(July 23, 2019).

412. Allan Smith, Dershowitz: Trump Pursuing Quid Pro Quo To Help Re-Election Is Not

Impeachable, NBC

NEWS (Jan. 29, 2020), https://www.nbcnews.com/politics/trump-impeachment-

inquiry/dershowitz-trump-pursuing-quid-pro-quo-get-re-elected-not-n1125816.

413. Donald Trump (@realDonaldTrump), Twitter (Feb. 14, 2020), https://twitter.com/realDonaldT

rump/status/1228311415192215553.

414. Donald Trump (@realDonaldTrump), Twitter (June 4, 2018), https://twitter.com/realDonaldTr

ump/status/1003616210922147841?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E

1003616210922147841%7Ctwgr%5Eshare_3&ref_url=https%3A%2F%2Fwww.cnn.com%2F2018%2F

06%2F04%2Fpolitics%2Fdonald-trump-pardon-tweet%2Findex.html.

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2021] POWER ABOVE PRINCIPLE 161

via executive order,

415

in spite of the fact that birthright citizenship is assured

by the 14

amendment to the Constitution.

416

The Associated Press said that

Trump has used the phrase “absolute right” at least 29 times as president.

417

President Trump has even argued that the explicit Constitutional powers

of congress – the power of the purse and the war-powers – belong to him as

president.

418

To build his “wall,” Trump declared a national emergency

where no emergency existed and diverted Congressionally appropriated

funds to build his wall.

419

And while majorities in both Houses of Congress

voted for a resolution to end the emergency, only twelve Republican Senators

voted against the President’s position.

420

In February of 2020, the Senate passed a war powers resolution limiting

Trump’s military options in Iran.

421

The Senate passed the resolution by a

55-45 vote margin, with eight Republicans voting against the President.

422

The House bill on the war powers passed 224-194, with only 3 Republicans

voting against Trump.

423

As historian Steve Hochstadt has written:

It is not surprising that a president so unconcerned about

Constitutional norms would try to add to his powers. It is disturbing

and dangerous that the Republican Party as a body supports Trump

going far beyond what they harshly denounced just a few years ago.

Republican Congressmen and -women are sitting by while Trump

amends the Constitution by fiat.

424

President Trump’s attorney general, William Barr, has proven a willing

enabler to Trump’s imperial ambitions.

425

As William Falk has written,

415. Donald Trump (@realDonaldTrump), Twitter (Oct. 31, 2018), https://twitter.com/realdonaldtr

ump/status/1057624553478897665?lang=en.

416. U.S. C

ONST. amend. XIV.

417. Colleen Long & Michael Warren, Trump’s Idea of Executive Power Is Also Impeachment, AP

NEWS (Jan. 25, 2020), https://apnews.com/b2d16168986dd61accd475143c544665.

418. See Sierra Club v. Trump, 929 F.3d 670 (9th Cir. 2019).

419. Proclamation No. 9844, 84 Fed. Reg. 4949 (Feb. 15, 2019).

420. Susan Davis, Trump Vows Veto After Congress Blocks His Order to Build Border Wall, NPR

(Mar. 14, 2019), https://www.npr.org/2019/03/14/703379399/congress-overturns-trumps-national-emerg

ency-declaration-to-build-the-wall.

421. S.J. Res. 68, 116th Cong. (2020).

422. Catie Edmondson, In Bipartisan Bid to Restrain Trump, Senate Passes Iran War Powers

Resolution, N.Y.

TIMES (Feb. 13, 2020), https://www.nytimes.com/2020/02/13/us/politics/iran-war-

powers-trump.html.

423. Catie Edmondson and Charlie Savage, House Votes to Restrain Trump’s Iran War Powers,

N.Y.

TIMES (Jan. 9, 2020), https://www.nytimes.com/2020/01/09/us/politics/trump-iran-war-powers.html.

424. Steve Hochstadt, Trump the Great and Powerful, H

ISTORY NEWS NETWORK (Feb. 18, 2020),

http://historynewsnetwork.org/blog/154316.

425. William Falk, Editor’s Letter, T

HE WEEK, (Feb. 28, 2020).

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He got his job as attorney general by telling President Trump that the

Constitution gives him “illimitable discretion” over Justice

Department prosecutions; therefore, Trump’s numerous attempts to

block or end the Mueller investigation did not constitute obstruction

of Justice. Trump’s Article II authority is so expansive, Barr has

stated, that neither Congress nor the courts can interfere in his policy

decisions or compel him to release information. A delighted Trump

has taken Barr’s imperial theory of the presidency both seriously and

literally.

426

Conservatives once railed against deficits, but Reagan’s and Trump’s

budget-busting deficits now seem to pose no problem.

427

Conservatives used

to caution us about the growth of government, but George W. Bush created

the largest government agency in history (the Department of Homeland

Security)

428

and Donald Trump wants to build a new “space force.”

429

Conservatives used to care about character, but today, defend the character-

challenged occupant of the White House.

430

The list could go on and on.

Today’s conservatives are reactionary nationalists (and many are white

nationalists), who wish to radically transform America.

431

Conservatism—

for now at least—seems dead. As the Economist concludes, the shift to big

government advocacy was “not an evolution of conservatism, but a

repudiation of it.”

432

ONCLUSION

Today, both the Republicans and Democrats are big government

parties.

433

They merely have different ends to which big government is to be

used.

434

And yet, now, more than ever, we need to discuss where we want to

go as a nation, as well as how we want to get there.

435

Assuming that one size

(of government) fits all only straitjackets us into a big government corner.

436

426. Id.

427. Matt Welch, Remember when Republicans cared about the deficit?, (July 18, 2019), A13.

428. Is the United States Safer from A Terrorist Attack Today Than Before Sept. 11? An Interview

with Michael Chertoff, U.S. Department of Homeland Security Secretary, and Gus Coldebella, Acting Dhs

General Counsel, 248

N.J. LAW. 21 (Oct. 2007).

429. Clayton J. Schmitt, The Future Is Today: Preparing the Legal Ground for the United States

Space Force, 74

U. MIAMI L. REV. 563 (2020).

430. Hacker & Pierson, supra note 401.

431. Michael Miller, The Times That Try Our Souls . . . and Define Us for History,

91 N.Y. ST. B.J.

5 (April 2019).

432. T

HE ECONOMIST, supra note 404.

433. C

RONIN, supra note 345, at 81.

434. Id.

435. Siegel, supra note 383, at 205.

436. Gene Healy, The Right Should Re-Rethink Presidential Power, C

ATO INSTITUTE (Nov. 13,

2012), https://www.cato.org/publications/commentary/right-should-rerethink-presidential-power.

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2021] POWER ABOVE PRINCIPLE 163

Yes, big government is necessary to achieve some tasks. No, big government

is not the answer to all of our problems.

Was the growth of presidential power inevitable? As the United States

rose as a global power, was it necessary to have a strong president? Have

conservatives violated the very principles they so long espoused, or have they

merely given in to the inevitable? When opportunities presented themselves,

was it truly necessary to adapt philosophy to changing circumstances?

Opportunity and necessity: two words that well describe why, over time,

the power of the presidency expanded. The ambiguities in the original design

created opportunities for ambitious men, especially in times of great stress,

to increase presidential power.

437

The presidency—elastic, adaptable, even

chameleon-like—has been able to transform itself to meet what the times

needed, what ambitious presidents grabbed for, what Congress and the courts

ceded, what the people wanted, and what world events and American power

dictated.

438

Yet, in other ways, the rise of presidential power is a surprise. It was not

supposed to have happened. In strictly constitutional terms, the presidency

is a limited office.

439

The United States made the long march from the

tyrannophobia of antiexecutive bias (Revolution) to no executive (Articles of

Confederation) to a limited executive (the Constitution) to today (an uber-

imperial presidency).

440

The presidency has not been one thing, but many.

And presidential power has not been static, but dynamic.

The American presidency is a complex multidimensional, paradoxical

office.

441

And it is embedded in a system—the separation of powers—that

intentionally limits the exercise of power.

442

The office has been occupied

by individuals from a wide range of backgrounds, possessing varied skills,

motives, goals, and ambitions. They served under dramatically different

conditions and circumstances and at all times are supposed to be guided by

the rule of law expressed in the Constitution. It should not then surprise us

that the history of the presidency reflects the rise and fall and ebb and flow

of political power.

The office of the presidency has been shaped by various individuals,

operating within a dynamic system under changing circumstances. Some

presidents have been strong, others weak. Some eras demand change, others

defy it. The presidency has been shaped by industrialization, the Cold War,

American superpower status, economic booms and busts, wars and demands

437. Fitts, supra note 362, at 830.

438. Id. at 833-834.

439. Id. at 884.

440. Id. at 885.

441. C

RONIN, supra note 345.

442. Fitts, supra note 362, at 841.

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for racial change, increasing democratization, globalization, 9/11, and the

demands of capitalism. Presidents helped shape some of these changes, were

victims of others, and innocent or helpless bystanders in still others. Great

social movements, technological changes, newly emergent groups, and a host

of other factors created opportunities and restraints on presidential leadership.

The story of the rise and fall of presidential power is thus a complex and

perplexing one. It is a story of elasticity and adaptability, of leadership and

clerkship, of strong and weak officeholders, of change and stasis.

The growth of presidential power was (perhaps) inevitable, the embrace

of big government and a big presidency by conservatives was not.

Conservatives grew to believe that a big presidency was a good way to

achieve many of their policy goals, and jettisoned principle in favor of policy

victories.

443

They attained some of their victories, but at what cost?

443. Healy, supra note 437.

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