Commentary Magazine


The Fettered Presidency, edited by L. Gordon Crovitz and Jeremy A. Rabkin; The Imperial Congress, edited by Gordon S. Jones and

Saving the Presidency

The Fettered Presidency: Legal Constraints on the Executive Branch.
by L. Gordon Crovitz and Jeremy A. Rabkin.
American Enterprise Institute for Public Research. 350 pp. $29.95.

The Imperial Congress: Crisis in the Separation of Powers.
by Gordon S. Jones and John A. Marini.
Heritage Foundation/Claremont Institute. 366 pp. $24.95.

Is the United States doomed to a weak, Whig version of the presidency? Is the country’s great constitutional edifice, a model for so much of the rest of the world, sliding toward untrammeled domination by Congress? Now that the tough rhetoric of the Reagan era has been replaced by the cooperative (or “bipartisan”) charm of the Bush administration, such and similar questions about the constitutional separation of powers have begun to loom large on the agenda of Republicans and conservatives, but also of a respectable number of Democrats and moderates.

The rise of concern is hardly coincidental. It derives at least in part from the fate of the Reagan administration, battered on the rocks of Iran-contra (itself an expression of a new bludgeon in the hands of Congress, namely, the special-prosecutor statute), and the specific dangers for presidential conduct of foreign policy dramatized in that seemingly endless quagmire. It also is inspired by the post-Reagan tally on the separation-of-powers “scorecard,” which reads, approximately, legislative branch 10 (or perhaps 100), executive perhaps 1. This might amaze even Madison, who wrote in The Federalist that “In republican governments, the legislative authority necessarily predominates.”

Despite Ronald Reagan’s apparently rejuvenative effect on the presidency, most of the congressional encroachments enacted before his term of office, that is, during the years of the pullout from Vietnam and Watergate, remained in place after it. In many cases, some vital, they remained unchallenged to any serious degree. The War Powers Act, affecting the President’s fundamental role as Commander-in-Chief; the Budget and Impoundment Control Act, crimping the executive ability to affect fiscal priorities; the Ethics in Government Act; the special-prosecutor authority (now affirmed as constitutional by the Supreme Court)—harpoons all, aimed at the executive, and the list goes on and on.

The fact that Speaker of the House Jim Wright has now been impaled on a version of the special-prosecutor lance has not fundamentally altered the case. One does, to be sure, detect great dismay in political Washington at the notion that the Ethics in Government Act, like some lethal virus, may have escaped from the lab to infect Capitol Hill. George Bush has announced his intention to seek something like symmetry in the use of the Act to cover Congress; if he succeeds, the equivalent of limited nuclear deterrence will perhaps have been established for this strange and powerful mechanism. But even if Bush achieves that end, the redress in the balance of power could be marginal. For the legislature, pondering matters of great ethical moment like the Speaker’s wife’s employment record may have ended that gentleman’s career, and slowed down other deliberations; by contrast, the effect of protracted prosecution on the executive branch, as Iran-contra shows, is to strip the presidency of a fundamental characteristic of the office, what the Founding Fathers described as “energy.” The White House still loses more than it wins through ethical fratricide.

It is easy to dismiss the concern over loss of executive authority as a Republican or conservative stalking horse, made necessary by a lack of congressional power. The fact is, however, that the seemingly permanent Republican lock on the White House and the even more permanent Democratic grip on the Congress (especially the House of Representatives) are themselves signs of a structural, i.e., constitutional, problem. What is unclear to many American commentators is crystalline to every foreign ambassador: in Washington, federal power has been redivided, subdivided, re-blended, and delegated so profoundly that, in many cases, purposiveness of government has virtually disappeared. As Paul Bator, distinguished legal scholar and one-time counselor to the Department of Justice, notes in a contribution to The Fettered Presidency: “It seems as if the very purpose of government today is to develop new and ingenious ways to stop, break down, or delay the processes of government.”

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The great merit of both The Fettered Presidency and The Imperial Congress is to focus from as many angles as possible upon the subtle issue that is too casually elided under the mechanical concept of the separation of powers. Both volumes are collections of articles by scholars, government officials, journalists, and various other experts, largely but not exclusively moderate-to-Reaganite Republican. Where they differ is in tone and tactics. The Imperial Congress, the product of the issue-oriented Heritage/Claremont think tanks, is tougher and more heated, and ends with a ten-page action program that is, essentially, a blueprint for constitutional combat. The Fettered Presidency, offered by the American Enterprise Institute, is slightly more removed, less tendentious, but also much less unified in its presentation of prospective solutions. It displays a clear cleavage between those who feel congressional encroachment should be fought largely in the courts and those who argue that only through determined political effort—appealing over the heads of Congress to the American people—will Presidents win back their lost authority.

First among the political advocates in The Fettered Presidency is former Judge Robert H. Bork, himself a victim of Congress’s newfound assertiveness. In his foreword, Bork argues that “The President must make a public issue of congressional attempts to control his legitimate powers, perhaps by refusing to accept some restrictions even at the risk of political damage.” The extent to which the Reagan administration, however defiant its rhetorical stands, failed to do that is a particularly intriguing question pursued in The Fettered Presidency.

Faced with Congress’s increasingly grotesque omnibus spending practices—in 1987, for example, Congress passed a $600-billion, 2,100-page resolution, filled with hand-grenades designed to explode in all areas of policy, after one hour of debate—Reagan complained loudly. Then he signed. Again, despite his longstanding campaign for a line-item veto to rein in such congressional rampages, Reagan never challenged the constitutionality of the Budget and Impoundment Control Act, which purported to remove an impounding power exercised by Thomas Jefferson, among others. Nor, for that matter, has any President challenged the Act since its passage in 1974.

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Nowhere does the accumulation of executive passivity seem more striking than in the case of the War Powers Act, which all Presidents since Nixon have deemed unconstitutional. In The Fettered Presidency, former Defense Secretary Caspar Weinberger points out the idiocy of the law when applied to a real situation, such as the patrolling of the Persian Gulf during the Iran-Iraq war. In the crunch, it proved an exercise in dithering, do-nothingness, and empty posturing—precisely as the Founders might have predicted when they decided to separate the executive power from the legislature in the first place.

Weinberger concludes that “The constitutional status of the War Powers Act must be determined, or Congress must become sufficiently aware of the problems that it will not unconstitutionally and dangerously fetter the presidency.” Yet Weinberger himself had plenty of time, one would think, to push that issue toward resolution. Why did the administration in which he served fail to do so? Weinberger says now that “we have problems in establishing the kind of case that can make such a determination under our legal system.” One might imagine, however, that the U.S. legal system, so versatile at challenging everything else under the sun, might have risen to the occasion.

In fact, Weinberger is at least mildly contradicted here by Jeane Kirkpatrick, former U.S. ambassador to the UN, who feels that there was reason enough to press forward in any case. Eugene V. Rostow is particularly telling in his criticism of the Reagan and other administrations for their failure to defend constitutional prerogatives in foreign policy before the Supreme Court. The President, as Rostow puts it, “cannot exercise his responsibility if he does not defend his powers.”

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The true complexity of the separation-of-powers issue is suggested by the fact that in the process of executive encroachment, Congress, too, has been engaged in a giveaway of its powers. The beneficiaries have been the lesser potentates of the fragmented congressional power system: subcommittee chairmen, staffers, and, ultimately, special interests. One of the most intriguing contributions to The Fettered Presidency is that of Barbara Hickson Craig of Wesleyan University on the issue of legislative vetoes. Her conclusion: “The legislative veto is not really about ‘democratic control’ and accountability, as its promoters have claimed. . . . The motivation that prompted Congress to append vetoes to so many of its delegations was mistrust of its own law as much as anything else.”

What can be done? The Fettered Presidency is devoted more to problems than to answers. Some contributors stress the need for renewed comity: Elliott Abrams, former Assistant Secretary of State for Inter-American Affairs, expresses the hope at one point that executive and legislative branches might end up in the hands of the same party, even if those hands should be Democratic. Michael Horowitz, formerly chief legal officer at the Office of Management and Budget, argues that House Republicans should consider throwing their support to moderate and conservative Democrats as committee chairmen, in an effort to regain some measure of control in the congressional process.

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The Imperial Congress offers a more impetuous prescription: scratch, bite, kick, claw to regain ground in the power game, more or less at every opportunity. “The presidency must be more active, involved, combative, aggressive, accusatory, rambunctious, disruptive, and demanding at every step of the legislative process,” writes “Gabriel Prosser,” the pseudonym “of a long-time legislative- and executive-branch official.” In its recommendations section, this peppery volume charges forward on all fronts. The President should seek repeal of the War Powers Act. He should “publicize the efforts of members of Congress to influence executive-branch decisions.” He should “ignore, or challenge directly, some detail of micromanagement of an executive department.”

Some of the Heritage/Claremont suggestions have great merit: after all the years of shadow-boxing, securing a definitive judgment on the War Powers Act would seem to be of cardinal importance. But the weakness of the plan is in the sum of its parts: it demands a degree of activism that would leave the executive branch so exhausted as to be deprived once again of that quality—energy—essential to the proper performance of its role. And even then the strategy might not succeed; one can easily imagine it turning into a death by a thousand legislative cuts. More likely still, an overambitious program of confronting Congress would take the form of rhetorical assertiveness followed by retreat on many fronts—more or less the position of the Reagan administration.

What both of these books make clear, however, is that the task of protecting the always weaker executive power in America requires a strategic sense and a determination to fight the right battles at the right time, without flinching. In other words, to preserve his place in the Constitution, the President must behave as if he were the Commander-in-Chief.

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About the Author

George Russell is the executive editor of Fox New Channel.




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