The Slow Creep of The Monarchical Presidency
Presidents continue to cater more to emotion than reason because the voters want it
At the start of the Civil War, President Abraham Lincoln took it upon himself — without authorization from Congress — to suspend Habeas Corpus, imposed martial law, and established a blockade. Following the deadly terrorist attacks of 9/11, President George W. Bush established military commissions, authorized indefinite detention by classifying suspected terrorists as “military combatants,” and signed off on the use of “enhanced interrogation” that many say in layman’s terms, is torture.
One might argue what Lincoln and Bush did came at extraordinary times and were not merely a power grab by the executive branch for the sake of doing so. Lincoln argued what he did was out of necessity when Congress was not in session. In July 1861, when Congress met, Lincoln explained his actions. He said, “These measures, whether strictly legal or not, were ventured upon, under what appeared to be a popular demand, and a public necessity; trusting, then as now, that Congress would readily ratify them.” Lincoln admitted he went beyond the scope of his constitutional duties, usurping the role of Congress in his decision-making. He did not claim he had the unilateral authority to take such action and that any further undertaking would require the approval of Congress.
Bush, on the other hand, asserted much of what he enacted following the terror attacks of 9/11, was valid under the plenary powers of the executive branch, and did not require authorization from Congress. Therein lies the most significant difference between the actions of Lincoln and Bush. Lincoln understood he acted outside of his authority out of necessity, whereas Bush established precedent for future presidents to do the same under inherent authority.
Constitutional framers were leery of a powerful executive in the manner Alexander Hamilton envisioned. Originally, Hamilton advocated for a national “governor.” One chosen by special electors and serve during “good behavior,” i.e., for life. Having just fought a war to free themselves of the grip of King George III, other framers suggested more than one person to oversee the executive branch. George Mason was explicit in his concerns. He said if “strong and extensive powers are vested in the Executive, and that Executive consists only of one person; the Government will of course degenerate … into a Monarchy.” Some preferred a more administrative role for the presidency — a person there to essentially rubber stamp the wishes of the legislature.
Ultimately, the framers settled on a single person to oversee the executive branch — one that could act quickly and decisively when necessary, but also restrained and checked by Congressional supremacy.
The word supremacy is important in context as it belies the notion that Congress, the president and the Supreme Court are all “co-equal” branches of government. Historians and scholars have rejected that sentiment. Jay Cost of the American Enterprise Institute discusses it often. He writes:
The notion of coequality of the branches is a myth that has been popularized over the past half century, during the rise of the imperial presidency, as a way to boost the executive’s standing in the eyes of the public.
Cost provides all the details why Congress is the superior branch of government. The key is when he refers to the “imperial presidency.” He’s correct in that we place too much importance in the presidency's role, to the detriment of our constitutional order.
Getting back to George W. Bush, one practice he engaged in more than any other president before him, was signing statements. Signing statements are pronouncements made at the time of when a president signs a bill into law. Bush issued the signing statements, asserting he had no duty to carry out parts of the law that he claimed conflicted with his constitutional authority.
One of the more significant critics of Bush’s practice was none other than Barack Obama. Shortly after taking office in 2009, Obama signed a memorandum negating Bush’s signing statements. Obama’s directive said,
“There is no doubt that the practice of issuing such statements can be abused. Constitutional signing statements should not be used to suggest that the President will disregard statutory requirements on the basis of policy disagreements.”
Guess who went on to employ signing statements with as much vigor as Bush? Obama’s defenders would argue he issued fewer signing statements than Bush, but Obama’s were no less significant. His failure to notify Congress 30 days ahead of the Bowe Bergdahl swap for five Taliban commanders held in Guantanamo Bay outraged congressional Republicans, but it shouldn’t have come as a surprise. Obama issued a signing statement claiming the provision of the 2014 National Defense Authorization Act was unconstitutional and didn’t have to abide by the provision as it would not allow the executive branch to “act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers.”
Of course, the real problem is the lack of accountability from the superior branch of government: Congress. Over the last 20-25 years, Congress has become much more of a parliamentary body, taking its cues from the president, and turning the other way when a president acts outside their authority — when it’s the same party. Fast forward to 2019 and President Trump declares, “I have an Article II, where I have the right to do whatever I want.”
As much as Democrats howled at the suggestion, a presidential campaign was under way where candidates openly promised to exert executive powers immediately upon taking office. Kamala Harris went so far as to issue Congress a directive to pass her favored gun laws in the first 100 days of her presidency, or she’d do it on her own.
Democrats lambasted President Trump for taking money appropriated for military projects and re-allocated it for border wall construction under emergency provisions. Republicans went along or stayed silent. When President Biden attempted to continue the rent moratorium and implement a vaccine mandate for private companies outside of congressional authority, Republicans were up in arms while Democrats agreed or remained silent. Biden’s illegal scheme to forgive student loan debt was credited, in part, with the Democrats’ success in the 2022 mid-term elections.
Ironically, the founder’s vision for the head of the executive branch rested on the idea the president would appeal to reason, leaving passion to the legislative branch. We’ve watched it get entirely upended to where people measure presidential candidate crowd sizes as a barometer of their supposed influence and opportunity for success. The candidates do not help when they promise what they will do, completely ignoring that Congress and the courts are potential hindrances.
As long as the public continues to seek redress for its passions in the presidency, candidates will cater to those passions, moving the presidency closer to the monarchical position the founders sought to avoid.
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