The creation of the Presidency was [the Framers’] most creative act
–historian Jack Rakove
Birth of a President
While I won’t disagree with Mr. Rakove’s assertion, I have to question the Founding Father’s intentions and the long-term impact of the Office of President. What they had created was a position of power not based on direct overthrow or heredity; a person who owed their entire power to the will of the people. In this regard, it is not amazing that they created a president, but rather that they created a beast.
The Framers of the Constitution spent comparatively little time creating the Executive Branch. Debate raged over the powers for Congress, both the explicit and the implied, and as James Madison’s notes show, the creation of the President was a side debate during breaks from the congressional debates; the powers of the President were often discussed concurrently to the debate on the powers of Congress. (James Madison, Notes of Debates in the Federal Convention 1787)
Once finished, the Framers created a Constitution that, in 429 words, defines the powers of Congress in Article I, but delineated the powers of the President in half the number of words in Article II. The president has two specific duties: to give an annual address to Congress, and to “take care that the laws be faithfully executed.” There are two powers shared by the President and Congress: make treaties and appoint federal officials. The Office of President has little other power–they can veto bills, convene Congress, grant pardons, require Cabinet officials to write down their opinions, receive Ambassadors, serve as the Commander-In-Chief, and set dates for adjournment of either the House or Senate if they cannot agree on one.
What the Framers created was a position that could serve as long as wanted, either by the Congress or by the people, with little clear powers that they initially feared would become a puppet of the Senate, and given the ability to shape and define its own future. While that worked well for the Supreme Court–John Marshall established clear, workable goals for the Court in cases like Marbury v. Madison–the Framers missed the boat by miles with the president.
Sins of the Father
After the Watergate scandal–a scandal that, today, has lost depth and background no thanks in part to movies like Forrest Gump–most American’s have a distant and unsure relationship with their President. Watergate was more than just a break-in at a hotel; the bribes, kickbacks, and campaign shenanigans make anything that the Reagan or Clinton administrations did look like child’s play. However, the fact that a sitting president attempted to hide behind the veil of Executive Privilege means that future presidents can do so. Take, for example, the Obama Administration and “Fast and Furious”.
Presidents have long sought to bend the rules set by the Framers for the position they’ve sworn an oath to uphold. Jefferson, the strict interpreter of the Constitution, went out and bought the Louisiana Territory. His “power”? Nope. But it set a precedent that future presidents followed (Lincoln and the West/Alaska, for example). Here’s a list of my dirty half-dozen presidents that have soured my position on the Office:
1. Franklin D. Roosevelt: Sure, I’ll give you a president that served us through a Depression and a World War, but how he served established a precedent that could bite us in the ass soon. Here’s a president who tried to scurry behind the Supreme Court who repeatedly ruled that his New Deal programs were unconstitutional. In order to circumvent a rising tide of judicial activism begun by John Marshall (Marbury v. Madison)but rarely used until the 20th Century,he tried to pack the Court. By the time we get into World War II, Roosevelt has tasted power, and begins to act with an even greater unilateral paintbrush. In the wake of the attack on Pearl Harbor, FDR was willing to get caught in an anti-Japanese hysteria and issued Executive Order 9066 which interned Japanese-American citizens in such wonderful places like Granada, Colorado’s Camp Amache or Death Valley, California’s Camp Manzanar.
2. Kennedy: The biggest problem with the expanding waistband of presidential power is the fact the executive branch is the final word on the executive branch. What this means is that the Department of Justice (DOJ) and its Office of Legal Council (OLC) which is charged with advising the president on his or her powers, is last word on the legality of executive powers. Kennedy opted to have his brother serve as the Attorney General. Conflict of interests. Sure. Through this, Kennedy was able to manipulate the messages that went out of the White House. As the Kennedy wrapped up the presidency around close associates and family, he created a world of group-think that convinced otherwise independent, Constitutional men and women to go away from their sworn DOJ or OLC expectations and tow the party line. After all, the President controls a large portion of the federal bureaucracy.
3. Lincoln: The Great Emancipator–who really didn’t emancipate. While this isn’t the worst of his sins, he’s worked hard at pulling in power to himself. His suspension of the Writ of Habeas Corpus, raising and funding an army, and expelling citizens to the South because they spoke out against him. I can’t imagine how close we were to finding ourselves in this situation post-9/11. The other issue with the Violet Beauregarde-syndrome of our presidents that I lay at the feet of Lincoln is the polarization of the two-party system. Party loyalty will now and forever trump Constitutional concerns.
4. Nixon: Watergate. I find it greatly ironic that the President who rose to power as a Congressman by finding secret tapes in a pumpkin, lost power due to tapes.
5. Reagan: For all the things he did well as president, you can’t overlook Iran-Contra, and even for that you have to hand it to Reagan for thinking outside the box. After Congress denied funding, the Reagan team turned around and sold weapons that they had control over (Commander-In-Chief anyone?) and took the cash and sent it south. Congress tried to make a show of power with the Oliver North hearings, but by that time, Reagan had gotten what he wanted and Congress was left wondering what had happened behind their back.
6. Lyndon Johnson: Gulf of Tonkin Resolution… If you want to escalate a war, fake a tragedy. Sound familiar? For Johnson this was the incident in the Gulf of Tonkin. Carefully crafted, the Johnson Administration worked it so that Congress handed over war powers to Johnson (the vote was 416-0 in the House and 88-2 in the Senate)–the official statement authorized the president “to take all necessary steps, including the use of armed force, to assist any member or protocol state of the Southeast Asia Collective Defense Treaty requesting assistance in defense of its freedom.” Though a repeal of the Resolution quickly formed three years later, the precedent had been established.
Ultimately, we have times where the Presidents have gained unilateral power that has gone mostly unchecked by Congress and the Courts. When the Court has tried to step up to reign in a president, they have faced resistance. In the cases above, we see a reactionary Congress or Supreme Court. When the President acts, Congress is faced with a difficult task of reversing the action; Presidents hold all the power, and the advantage is in their court.
It is strange that the media has adopted the once vilified moniker of an “evil empire.” I can’t blame them though; Assistant Secretary for International Affairs and Special Representative for Border Affairs is a bit unwieldy and occupies too much print space. Border Czar is so much easier. It has been widely reported, and even tweeted by John McCain–yes, the John McCain who admitted to be a computer illiterate–that President Obama now has more Czars than those that had served Russia in its history. As you look at the list, it begs the question: Which of the three of Obama’s “special masters,” as Robert Gibbs, White House spokesman called them in 2009, are the False Dmitry’s? My vote goes to Daniel Fried, Robert Bauer, and Alan Bersin.
To be fair, President Obama wasn’t the first, nor will he be the last, president to utilize outsiders for aid. The dependence on unofficial advisors began as far back as Andrew Jackson when he disbanded his regular cabinet and sought the advice of close friends and political allies in what was known as the kitchen cabinet. Wilson utilized The Inquiry to aid him on all things World War I, and he appointed his own “czar” Bernard Baruch who was put in charge of the War Industries Board. The Brain Trust would be formed by FDR, and he would also be the first president to begin appointing various czars to work close to the president. Robert Kennedy had the dubious distinction of being on both the Kennedy kitchen cabinet and the “parlor” or official Cabinet.
The problem with the czars is two-fold. The first is that they are redundant; czars perform duties that we already have in Cabinet members and their infinite bureaucracy. In their redundancy, we end up spending twice the money for one job. Imagine American’s outcry if we were to discover that a major bank was paying insane salaries to two people doing the same job. Occupy Wall Street might just get new life. Back through time, the position of czar has been an epic failure. The use of the czar is a way for the President to say that he or she cares about an aspect of American life. Be it drugs or immigration or AIDS or the climate. Why do we then continue to bloat the executive budget for positions that do little, serve little purpose, and ultimately are only good for a chat in the Oval Office.
The other issue with presidential czars is that they are specifically designed to circumvent the specific powers of Congress: Namely, to approve appointees to the Cabinet. The system of checks and balances was designed to maintain a means for each branch of the government to monitor the behavior of the others. By naming czars, the President has a means to work behind a veil of executive secrecy, concealing their actions from Congressional oversight.
Why They Won’t Get My Vote
Until the Office of President is reined in. When the last signing statement is issued (maybe on the anniversary of the first one by James Monroe on 17 January 1822). When a President operates within the confines of a system of checks and balances. The day these come to be, then, maybe then, I will cast a vote for President. Until that day, I will watch with trepidation, with a cynical outsiders view, like a child realizing that their parents don’t have all the answers, as the President chastises the past holders of the office while continuing with their legacies.