TPM Cafe: Opinion

Book Club: A Stronger Presidency Is Not The Solution

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By contrast, Brooks cheerfully embraces the idea of concentrating power in a president-led executive branch, declaring that “[w]e need more unified authority” and advising Americans to “be tolerant of executive branch power grabs” (what does that mean--more Watergates, please?). His remedy seems to imagine an empowered executive branch that could take unilateral action on domestic policy matters like “immigration reform, tax reform, entitlement reform, and gun legislation” (though he is not very specific about precisely what actions he’d like to see a more powerful president take, or how this would be done).

There are at least two problems here. First, one person’s energized executive is another’s dangerous autocrat. How can something as vague as “entitlement reform” be an unalloyed good? It depends, of course, on how a president capable of acting unilaterally would change Social Security or the tax code. Second — and for me, this is an even greater concern — Brooks completely ignores what expanded executive power means, and has meant, in the context of national security.

History teaches us (as the framers themselves well understood) that it is often dangerous when presidents act unilaterally -- unchecked by other branches of government, the press, or the public. As I have discussed in my new book, Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror, the historical record offers numerous cautionary tales: Roosevelt and the mass internment of Japanese Americans during World War II (Congress and the Supreme Court acted essentially as rubber stamps), Truman’s unilateral decision to make war in Korea, Johnson’s deceptions in Vietnam, Nixon’s nearly successful attempt to turn the presidency into a criminal enterprise operating above the law and Reagan's involvement in the Iran-Contra affair.

Presidential action since 9/11 should make us even more wary. The Bush-Cheney years brought us the unholy flowering of the “unitary executive theory,” which was relied on to claim essentially unchecked executive power over anything related to national security (this was the justification for the detention system at Guantanamo, torture and warrantless surveillance). In many ways, the Obama administration has followed the Bush approach — though without relying on the extreme rhetoric associated with the unitary executive theory. The Obama administration has brought us a targeted killing program for U.S. citizens suspected — but not proven — to be senior terrorist leaders planning attacks against the United States, as well as a rationale for unilateral presidential war power that disdains constitutional and statutory checks.

The lesson to be taken from history, especially the incipient history of this century, is that there are compelling reasons to set meaningful limits on executive power. None of this means presidents can never act alone — when faced with a real emergency that does not allow time for consultation with Congress (like the secession crisis that Lincoln confronted when he took office in 1861), presidents can act unilaterally, seeking congressional approval after the fact, as Lincoln did. The framers understood that presidents would need the authority to “repel sudden attacks” without waiting for congressional authorization. But, when there is time to consult Congress, unilateral presidential action in much harder to justify.

Recently, there has been at least one hopeful sign for critics of unrestrained presidential power: the Obama administration’s decision to forego unilateral military action in Syria. That decision is evidence that it can often be better for presidents to wait and consult Congress before acting on their own. In this case, putting off unilateral action allowed time for diplomacy to work instead of a military strike.

Brooks’ piece, of course, considers none of this. He argues as a general proposition for increasing executive power without considering the possible dangers of doing so—without even considering, in fact, what the implications are, in the national security context, for concentrating power in the hands of the executive. There is a case to be made for limited unilateral presidential action in the context of a genuine emergency, subject to retroactive congressional approval. But, if we follow Brooks’s advice to “energize the executive,” history warns us that the results may be far from benign.

Chris Edelson is an assistant professor of government in American University's School of Public Affairs, where he teaches classes on the Constitution and presidential power. He is the author of Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror, which was published in fall 2013 by the University of Wisconsin Press.