March 21, 2005


All Hail…King George?: Some say President Bush acts like an autocrat. Then again, so have most of America’s greatest presidents. (Eric A. Posner, March 2005, Foreign Policy)

George Washington and his contemporaries faced the vital question of how the Constitution’s vague provisions on executive powers should be interpreted. James Madison argued that the president’s powers were limited to those enumerated in the Constitution and those delegated to him by congress. These enumerated powers included the powers of commander in chief, the power to enter treaties (with the Senate’s consent), the power to receive ambassadors, and little else. Alexander Hamilton argued that the president, as chief executive, had all the powers that an executive in those days had—and executives in those days were kings—except where the Constitution said otherwise. Although the Constitution gave some significant powers to congress, including the power to appropriate funds and to declare war, Hamilton’s formulation ensured that the president had dominant authority over foreign affairs.

Washington exercised Cincinnatus-like restraint throughout his career; nonetheless, as president he sided with Hamilton. As a result, he was not just the first president, but also the first strong president—and the first to be accused of usurping the powers of congress. He was also the first great president. And there have been several other great presidents who also claimed (and exercised) expansive presidential powers, and were called usurpers by their critics. Abraham Lincoln won the Civil War and freed the slaves, but he also suspended the writ of habeas corpus. Theodore Roosevelt introduced the United States to the world stage, but he also asserted new presidential powers to use force and negotiate treaties without congressional involvement, especially in Panama and elsewhere in Latin America. Franklin D. Roosevelt led the United States through the Great Depression and World War II, but he also tried to pack the Supreme Court with his own nominees and broke the norm that confined presidents to two terms in office. By contrast, a dozen or more milquetoast presidents both abjured imperial power and exercised what power they acknowledged in as undistinguished a manner as possible.

So should we welcome or fear the imperial presidency? To answer this question, I conducted a very unscientific empirical study. First, I used presidential ratings compiled by Prof. James Lindgren of Northwestern Law School. I used the mean scores assigned to the presidents by a politically balanced group of political scientists, historians, and law professors, with 1 going to the worst and 5 to the best.

Second, I classified all of the presidents as either “imperial” or “republican” according to whether they, in word or deed, adopted an expansive or limited view of presidential power. (To classify presidents as imperial or republican, I focus on whether the president strained against existing constitutional understandings, and I do not try to use an absolute measure.) To minimize my own biases, I used a standard textbook on the presidency, Sidney M. Milkis and Michael Nelson’s The American Presidency, and relied on the authors’ conclusions about whether a particular president sought to expand his power, or seemed satisfied with what he had. For example, I classify Dwight D. Eisenhower as republican because he was uninterested in expanding presidential power; and I classify Andrew Johnson as imperial, even though he was perhaps the weakest president ever, because he fought hard against the efforts of an ambitious congress to curtail the powers of the presidency.

The table demonstrates the pattern. Imperial presidents perform better than limited-power republican presidents. Average presidents are found in both categories, but within the extremes—the great and the terrible—there are only two modern exceptions. Eisenhower was a good president who did not try to expand his power, and Nixon was a bad president who did. Indeed, Nixon alone is probably responsible for the modern view that the imperial presidency is the worst kind of presidency. But if a constitutionally weak presidency prevents another Nixon, it also prevents another FDR or Lincoln. Although once in a while an Eisenhower could come along, most of the time we would have to make do with a Jimmy Carter, a Gerald Ford, or a Millard Fillmore. Such a state of affairs would hardly be appealing.

Just think though how easily Congress could have nipped the Iraq war in the bud by voting down the authorizing resolution. Even "strong" presidents are quite constrained.

Posted by Orrin Judd at March 21, 2005 10:36 PM
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