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A Question of Power: The Imperial Presidency


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The danger of this concentration of authority is made more acute by the failure of federal courts to perform their vital function in confining the branches to their constitutional spaces. Federal courts in the past few decades have maintained an increasing position of avoidance in separation-of-powers cases, leaving it to the political branches
to fight over turf. Courts now routinely block litigants, including members of Congress, from even being heard on constitutional violations. Years ago, I represented Democratic and Republican members (both conservative and liberal) challenging the Libyan war. They were denied even a hearing.  

Congress has proved equally passive, if not inert. Democrats have remained silent in the face of policies that challenge core values of privacy and war, as did Republicans under George W. Bush. That interbranch tension envisioned by Madison has gradually dissipated. Individual ambition of politicians has replaced institutional ambition, leaving many to curry favor with the White House as legislative powers are drained away by an increasingly powerful president. As that power increases, there is more pressure on politicians to yield in new areas.

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

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

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

Such circumvention – and the new presidential powers – create a perfect storm within the Madisonian system. It raises the very prospect the framers thought they blocked through the separation of powers: a president who can effectively rule alone.

We often refer to ourselves as the “land of the free,” as if that status were self-evident. We rarely ask ourselves what those freedoms are and how they have been abridged. Our self-image can border on self-delusion when we take stock of the status of many rights.

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

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

When the full mosaic of new governmental powers is considered, and the full array of rights curtailed in the United States, we are left with a disturbing question of self-identity. We more often seem to define ourselves by what we are not than by what we are.  

In the summer of 1787, a telling moment occurred after a crowd gathered around Independence Hall to learn what type of government had been created for the new nation. When Benjamin Franklin walked out of the Constitutional Convention, Elizabeth Powel could wait no longer. Franklin was one of the best known of the framers working on the new U.S. Constitution. Powel ran up to Franklin and asked, “Well, Doctor, what have we got, a republic or a monarchy?” Franklin turned to her and said what are perhaps the most chilling words uttered by any framer: “A republic, Madam, if you can keep it.”

It may be that it is not the presidency that has changed. We have changed. As a nation, we seem to have grown almost bored with rights like privacy and due process. We have been passive and pedestrian in watching the rise of an uber-presidency. We no longer view ourselves as directing our government, but as merely bystanders watching matters outside our control. 

Worse yet, we seem to have lost not just our identity but even our interest in governance. It was a republic when Franklin was stopped by Powel.
I am not sure that most citizens today would even have stopped him to ask. “Democracy ... soon wastes, exhausts and murders itself,” John Adams once said. “There was never a democracy yet that did not commit suicide.” 

What is truly sad is that if one of the greatest republics in history did die, it is not clear if anyone would even notice its passing.  

 

 

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

 

John Turnbull

July 14, 2014 - 6:49pm

National Conference of State Legislatures NCSL tells us that “while separation of powers is the key to the workings of American government, no democratic system exists with an absolute separation of powers or an absolute lack of separation of powers. Governmental powers and responsibilities intentionally overlap; they are too complex and interrelated to be neatly compartmentalized. As a result, there is an inherent measure of competition and conflict among the branches of government. Throughout American history, there also has been an ebb and flow of preeminence among the governmental branches. Such experiences suggest that where power resides is part of an evolutionary process.

Separation of powers forms the cornerstone of the constitutional framework envisioned by the Founding Fathers to ensure a form of government in which no individual or group ever becomes too powerful. For example: • Congress (legislative branch) can pass laws, but the president (executive branch) can veto them. Congress can override the president's veto.”

My two years of service in the United States Navy enabled me to graduate from Boston University Law School in 1947 with honors and the privilege of serving as Editor-in Chief of its Law Review. Since then I have kept abreast of the history of how the Constitution has been used and abused by the Congress, the Presidency and the Supreme Court. I had this history in mind when I read the articles written by Professors Turley and Howell that appeared in the Legion’s June 2014 issue. I completely agreed with everything Turley had to say. I also agreed with Howell’s findings until he attacked what he called “the narrow reading” of the powers granted to the President by the Constitution’s Article II.

Both men rightly criticized the extent to which Presidents have used and abused their office by adopting powers and enforcing policies about which the Constitution has nothing explicitly to say and to which the members of Congress adversely react only when the President belongs to the other party. Both men bemoan the refusal of the courts, especially the Supreme Court, to rule on the constitutionality of these powers and policies.

Turley foresees the creation of an imperial presidency that will result in the death of one of the greatest republics in history, an event passively accepted by a democracy whose people who will not “even notice its passing.” Even so, he wants the people to be ultimately responsible for its death, not the result of the actions of a tyrannical President. Howell, on the other hand, argues that because the Congress is “mired in deadlock and the courts institutionally incapable of engaging the minutiae of policy debate, presidents alone offer the kind of leadership needed address the challenges of climate change, the debt, entitlement reform, and on and on.” He prefers to attribute the Republic’s death to the possible actions of a President who didn’t do what Howell expected him to do, namely, do personally what he believes the Congress and the judicial system have failed to do.

The American people have never been taught that the Republic’s eventual demise began in 1913 with the passage of the seventeenth amendment to the Constitution, which took the election of the U. S. Senate out of the hands of the State Legislatures and vested it in the electorate, whom the Founding Fathers called a “mob.” This amendment was deliberately orchestrated by the same group of wealthy bankers who, in the same year, persuaded the President and the Congress to pass a Federal Income Tax Law and establish a Federal Reserve System. The seventeenth amendment turned what had been a Republic into a democracy, a form of government that, as Turley points out, quoting President John Adams, “soon wastes, exhausts and murders itself. There was never a democracy yet that did not commit suicide.”

Carol K

May 29, 2014 - 7:29pm

I totally agree we are headed n the exact same course.

Anonymous

May 23, 2014 - 2:22pm

"I do not believe that Obama is (or wants to be) a tyrant."
So the man is still deep down inside a well-meaning liberal progressive? How absurd!--Questions of rhetoric and personality are irrelevant. Obama's actual policies have helped to accelerate the implementation of police-state infrastructure in this country--he is a tyrant.

donilo

May 25, 2014 - 6:38am

Exactly so! One may ask why Obama wants to act like a tyrant. Is he being threatened, blackmailed, coerced? But if any of these were the case, and it was against his will, why does he extend his presidency at the cost of undoing any semblance of democracy that remains, and at an extreme cost to the people of the country?

I can't imagine an acceptable answer to those questions, and so I'm left with the belief that Obama very much want to be a tyrant, and in no way is it against his will.

The corruption of power and money can easily sway those to whom they have been given. For me, a telling point that supports the accusation of Obama's personal enjoyment of being a tyrant was his choice to play golf with an oil mogul on the announced day of demonstrations at the WH against the oil industry's excesses. That's a choice right out of "Ws" playbook.

We most definitely have a wannabe dictator in office, and the 1%ers who run the whole machine will replace him only with others who will play the same role.

Anonymous

May 22, 2014 - 12:44pm

I've never understood the obsession over Nixon's crimes; whatever else they were, they weren't unique. Maybe it's that he got caught redhanded, but so did others, and they weren't hounded out of office. Not that I care that the establishment, or enough of it, ganged up on him, except that it has given the false impression that he was uniquely corrupt.

They only ganged up on him, presumably, because disgust with Washington was at high tide. This was a time when John Kerry, now Mr. Establishment, got ahead by pretending to discard his military honors because of our barbarity in Vietnam, or more likely because that war was a loser and rats flee sinking ships. You won't hear many criticizing the vastly more barbarous WWII, aside from that of Hiroshima and internment camps, occasionally. I feel buttressed in this opinion by the utter failure of Vietnam's putridity to affect the Garrison State or draw back on the endless crusade for perpetual warpeace much.

I also don't like how those presidents history has down as most corrupt were also some of the weakest, for instance Grant and Harding. That gives the false impression we need Strong Men in office to drive the thieves out of the temple, when Strong Men are usually strong precisely because they're the best thieves. Lincoln, Wilson, and FDR were easily worse than Nixon. Much, much worse. Almost immeasurably worse. The idea that FDR's Bootlick Schlesinger came up with the Nixon administration's epitaph, and that it had something to do with overreaching power makes me want to cry.

TR, LBJ, Truman, and Bush the Younger were worse, too, if for no other reason than that they were more successful. My main criterion, however, is the difference between starting things and merely continuing them. However bad was Nixon, I don't think many new evils were conjured by him, and he actually managed to pull back a wee bit on the Cold War madness. I almost can't credit him for that, though, given his strategy was worked out by the Mad King of foreign Policy, Kissinger, and the shadowy cabal of dark forces which I've been told secretly run the world. And which I partly believe, only because the nothing in the official histories or the daily news otherwise makes sense.

Rick Anderson, Tucson, Arizona

May 30, 2014 - 10:18am

You are an un-American buffoon, and a coward also for identifying yourself as "Anonymous". You are exactly the type of person who is causing the downfall of our once-great nation. You sound like an over-educated, under-intelligent, moron. Your rant deserves no further reply than this.

Ron Harwell

May 22, 2014 - 12:40pm

I think what the civilized world desires is the collapse of the U.S. in order to feel much,much safer. The U.S. has become the largest terrorist cabal in the world, and has created more enemies than it can take on--Even its allies no longer trust us, and know us for the hypocrites we are. Well, those in leadership, Beltway, positions. Taking legal action against China for corporate espionage is a joke. A sad one considering what the NSA, and its partners, have been doing for decades globally.

Anonymous

May 22, 2014 - 1:02pm

I can't understand much of what neocons, New World Order types, or whoever it is rationalizing U.S. foreign policy or lackthereof, say. But I do get the Pax Americana argument. Not that I agree with it, because it only goes so far. The cause and effect is unclear. Are there no giant wars anymore because the U.S. is the sole power, or is the U.S. the sole superpower because no one wants to fight giant wars? Is the U.S. the sole power because of the perpetual war for perpetual peace, or by default? I'm not sure. I think it's more by default than anything else.

Most importantly, do we have to keep our hands in every damn country, mess people up when we feel like it, and endlessly seek out potential Hitlers to snuff? Maybe our meddling has nothing to do with the relative peace, and is neither here nor there as regard. Sometimes I wonder if there really is general peace merely because there hasn't been a world war since the last one. Is this like the lull between Napoleon and WWI in Europe (not counting all the other wars), or is it constant, numbing not so big war?

Maybe we're like the patents of reasonably well behaved kids whom we sometimes hit for the heck of it. "That's for nothing. When it's the real thing you'll know it." Some parents are just jerks.

Anonymous

May 22, 2014 - 12:56pm

I can't understand much of what neocons, New World Order types, or whoever it is rationalizing U.S. foreign policy or lackthereof, but I do get the Pax Americana argument. Not that I agree with it, because it only goes so far. The cause and effect is unclear: are there no giant wars anymore because the U.S. is the sole power, or is the U.S. the sole superpower because no one wants to fight giant wars? Is the U.S. the sole power because of the perpetual war for perpetual peace, or because by default? I'm not sure. I think it's more by default than anything else.

Most importantly, do we have to keep our hands in every damn country, mess people up when we feel like it, and endlessly seek out potential Hitlers to keep the peace? Maybe our meddling has nothing to do with, and id neither here nor there as regards World Peace. Maybe we're like the patents of reasonably well behaved kids whom we sometimes hit for the heck of it. "That's for nothing. When it's the real thing you'll know it."

Some parents are just jerks.

Brendan NV

May 22, 2014 - 12:21pm

Does Titus Mendell even understand how communistic his comments are?

William A Hamilton

May 22, 2014 - 8:13am

Congratulations Professor Turley on your excellent and very timely article.

Titus Mendell

May 22, 2014 - 11:18am

When the President is confronted by those who deny truth as human caused global warming proved by environmental scientist, the attempt the forces of selfishness to destroy medicare and social security, deny individuals the right to live decent lives when they were to young to know that it was illegal to cross they border and were not able make a judgement the president has to act. The republican party fought their wars off budget.
When you have anti everything congress that the President has to act,
I do oppose some of the policies as the drone project, assassination without trial, mass survellience of all American citizens communication. Mr Snow is an American Patriot.

I am for homeosexual marriage regardless what the dictator in Rome wants. I am for sex education beginning in 6 grade with explicit illustartions and instructions. I am for distribution of birth control to all women and men beginning in 6th grade with no objections from Parents permitted.

When you have criminals like the chairman of GM and Chase and Bank of America you need a strong President.

FJS

May 24, 2014 - 7:50pm

Your comments indicate that you really need someone to be your"Leader". Global warming is the buzzword of the moment for Liberals seeking to impose a central rule of those "who know better". Facts....not contrived conclusions are what substantiate arguments. regrettably that is nor in a Liberals Lexicon.
The children you refer to were brought here ILLEGALLY. Another word that is ignored by Liberals when it is inconvenient. Conyers in Michigan ignored a law because it was inconvenient for him. A Liberal judge....like many in that profession contrived a solution for him because it caused a problem for a career Liberal politician.
You were obviously not raised in a traditional FAMILY environment. RESPONSIBILITY is part of that lexicon as is being a Nation of LAWS. LAWS that are obeyed by all....not ignored when it is inconvenient for Liberals. When Conservatives break laws there is a different standard from that applied to Liberals. A Conservative member of Congress gets caught in an affair with a staffer and he is out. A Liberal has s "boy friend" who bets caught running an escort service from his home and he gets elected for another 15 years.

Double standard.

El Mac

May 24, 2014 - 9:06am

You are a disgusting and pathetic fool.

USA?

May 22, 2014 - 8:10pm

Your kind serves your master Satan, it is because of the ills in this world that what is wrong will be right! I don't believe Islam is against homosexuals but a supporter of Satan, who is a lover of self and the hater of women and the proper family!

DDarmah

May 22, 2014 - 3:41am

"A republic, madam, if you can keep it." We didn't.

anarchteacher

May 21, 2014 - 7:03pm

James Madison, in Federalist Paper #47 observed: "The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny."

Our decentralized federal republic of independent sovereign states who voluntarily joined together under a Constitution of limited, delegated powers died long ago.

In the 1860s, while the Prussian Prime Minister Otto von Bismarck was using "Blood and Iron" to brutally consolidate the German empire on the European continent and create the welfare-warfare state, the tyrant Abraham Lincoln was undertaking the same task here on the North American continent in his savage war to coercively prevent the seceding southern states who had voluntarily joined the union from exercising their prerogative to voluntarily leave its ranks. Under Reconstruction those conquered states were subjected to martial law and occupation.

Decades later, the great Garet Garrett, an editor of the Saturday Evening Post magazine, warned of much the same thing in his classic essay, "The American Empire" (available online) in 1952 during the Truman administration but few were listening:

"We have crossed the boundary that lies between Republic and Empire. If you ask when, the answer is that you cannot make a single stroke between day and night; the precise moment does not matter. There was no painted sign to say: 'You now are entering Imperium.' Yet it was a very old road and the voice of history was saying: 'Whether you know it or not, the act of crossing may be irreversible.'"

DaMadOne

May 21, 2014 - 2:43pm

I concur. Ignoring differences in lifestyles, religions and technology there was a republic much like our that lasted about 400 years. It too started off good and then eroded from with in. It also started off with something similar to our bill or rights. I do believe if the average American actually studied it they would note the parallels. It's legislative branch also eventually gave unilateral power to the executive as it leaned more to a democracy. They also had a court system but in actuality the executive branch served a dual role which included judiciary functions. The republic I refer to is ancient Rome and the latter part of it's existence is known as Imperial Roman Empire. You can say I am wrong but if you take a good long look at it's government and how it changed through the years you may find we are on the same course.

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