August 23, 2013

Threat of the imperial presidency

The broadening of executive power weakens US democracy

Joseph R. Reisert

When visiting Washington, D.C., the imagery of ancient Rome is everywhere. The magnificent, classically proportioned buildings, clad in brilliant white marble, deliberately imitate the architecture of the ancient Italian city.

Looking closely at the seated statue of President Lincoln in his memorial, one finds that the legs of the great chair in which he sits are tied bundles of rods, the Roman fasces. Another pair of fasces flanks the U.S. flag that hangs behind the speaker's chair in the House of Representatives. Even the name, Capitol, was chosen to recall Rome's Capitoline Hill, the citadel and heart of the ancient city.

Our Founding Fathers knew well the history of Rome. They knew that the Romans established a republic after a victorious revolt against a king from a foreign dynasty. They knew that this republic grew, through effective government, military conquest, and the extension of Roman citizenship, into a great power.

They knew also that, after some 300 years of freedom, the Roman republic ultimately failed. The leaders of its great armies subverted the free institutions of the Roman state in their quest to become absolute rulers of the city. In the end, Julius Caesar and his descendants and their successors ruled as kings, whom we know as emperors, though at first Rome's "emperors" ruled under the forms and titles of their ancient republic.

Knowing that history in some detail, our Founding Fathers were resolved not to repeat it. Thus our Constitution makes the national Congress the most powerful institution in our government and explicitly gives the Congress power to declare war and to authorize the expenditure of money, necessary to wage war, or indeed to do anything else.

By contrast, the Constitution imposes on the president the duty to "take care that the laws be faithfully executed." While the Congress answers only to the people, the president answers to the people and to the Congress, to whom he must report annually on the state of the union, and who may remove him from office for misconduct.

Despite the Founding Fathers' efforts, however, our republic may well be marching along the same path away from republican freedom trod so long ago by the Romans.

In 1973, the historian Arthur Schlesinger published "The Imperial Presidency," arguing that, during the Cold War, our presidents dramatically increased their power, at the expense of Congress, largely in the area of foreign policy. His especial target was Richard Nixon, but in Schlesinger's account, post-war presidents beginning with a Democrat, Harry Truman, had claimed powers the Founding Fathers had not intended presidents to wield.

Strongly opposed to President Bush's assertions of executive power in the wake of 9/11, Schlesinger reissued "The Imperial Presidency" in 2004, with a new introduction pointedly critical of Bush's claim that the president has a sphere of executive power independent of any grant of authority by the Congress, and of Bush's willingness to take steps not explicitly authorized by law to protect the nation from further attack.

Schlesinger did not live to see the Obama presidency, but in every respect his presidency is more "imperial" even than was Bush's. Obama has continued to sideline the Congress in foreign policy and asserted the authority to kill by remote-controlled missile strike even American citizens abroad. In addition, he has stretched the limits of executive power even in the domestic sphere, declining to enforce major provisions of immigration law and suspending, without legal authorization or the consent of Congress, several provisions of his signature achievement, the Affordable Care Act.

Partisan Democrats may find it easy to dismiss concerns about President Obama's "imperial" tendencies, just as partisan Republicans found it easy to dismiss the same worries about President Bush.

But lovers of liberty in both parties need to recognize that the growth of imperial presidential power is an ongoing, structural, and bipartisan problem that is enabled and exacerbated by our intense partisanship. If we hope to resist the increasingly imperial claims of our presidents, we will need to reinvigorate the democratic spirit of active citizenship and reassert the institutional primacy of the Congress as the author of the laws the president is obligated to enforce.

When one recalls that the great classical monuments in Rome -- the Coliseum, the Pantheon, the triumphal arches, and the rest -- were built during the empire, not the republic, the classical monuments in Washington, D.C., take on a new and troubling aspect: not as embodiments of our ideals but as icons of a grim fate we must work to avoid.

Joseph R. Reisert is associate professor of American constitutional law and chairman of the department of government at Colby College in Waterville.

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