A Weak Congress Does Not an Imperial President Make

The New York Times' Adam Cohen discusses in a fairly well researched op-ed about the Bush Administration's assertions of executive power, calling the it an imperial presidency.

Cohen discusses how the Founders felt when dealing with the presidency. Cohen accurately notes that the Founders were indeed worried about too robust an executive. Cohen writes:

Given how intent the president is on expanding his authority, it is startling to recall how the Constitution’s framers viewed presidential power. They were revolutionaries who detested kings, and their great concern when they established the United States was that they not accidentally create a kingdom. To guard against it, they sharply limited presidential authority, which Edmund Randolph, a Constitutional Convention delegate and the first attorney general, called “the foetus of monarchy.”

The founders were particularly wary of giving the president power over war. They were haunted by Europe’s history of conflicts started by self-aggrandizing kings. John Jay, the first chief justice of the United States, noted in Federalist No. 4 that “absolute monarchs will often make war when their nations are to get nothing by it, but for the purposes and objects merely personal.”

Many critics of the Iraq war are reluctant to suggest that President Bush went into it in anything but good faith. But James Madison, widely known as the father of the Constitution, might have been more skeptical. “In war, the honors and emoluments of office are to be multiplied; and it is the executive patronage under which they are to be enjoyed,” he warned. “It is in war, finally, that laurels are to be gathered; and it is the executive brow they are to encircle.”

George W. Bush is not the first president, nor will be be the last, to test the limits of his authority. That fact that he does so does not make him an imperial president any more than Theodore Roosevelt, Franklin Roosevelt, Lyndon Johnson or Richard Nixon, all men who pushed the limits of presidential authority.

While the Founders were correct in their feeling that the Presidency was the "foetus of monarchy," that is an incomplete picture at best. The Founders struggled mightily with the question of a chief executive. Even fressher in their minds than the tyranny of King George III was the highly ineffective manner in which the national government under the Articles of Confederation dealt with military and diplomatic matters. Under a government structure that demanded unaminty among the colonies, a difficult proposition at best, Congress during the Revolutionary War had to entrust the prosecution of the war to a single man--George Washington. During the waning days of the war, there was concern that the immense popularity of Washington would lead to his usurpation of the government to establish a monarchy. Imagine their relief when Washington resigned his commission in Annapolis.

Because of their internal intellectual and political struggles to create an executive capable of quick action in times of national emergency, a task for which Congress, even today in the era of rapid transit and even faster communication, is ill-suited at best. The Framers knew that a military and diplomatic campaign cannot be run by committee. As Cohen properly notes of the framers,

They gave Congress the power of the purse so it would have leverage to force the president to execute their laws properly. Madison described Congress’s control over spending as “the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.”

The framers expected Congress to keep the president on an especially short leash on military matters. The Constitution authorizes Congress to appropriate money for an army, but prohibits appropriations for longer than two years. Hamilton explained that the limitation prevented Congress from vesting “in the executive department permanent funds for the support of an army, if they were even incautious enough to be willing to repose in it so improper a confidence.”

The President has asked for annual appropriations for the military and the Congress has given it to him. That is not the hallmark of an imperial presidency, but the normal functioning of a federal government. Congress has within its Constitutional power to effect change, and even the President and the most rapid hawks acknowledge that fact. Should Congress pass a bill limiting appropriations for Iraw, there will be show down since it is unlikely that Congress could sustain a presidential veto of a war funding bill that zeroed out appropriations for the war in Iraq. I may not be sure of much regarding Congress, but I can be certain the Senate Minority Leader Mitch McConnell and House Minority Leader John Boehner are keeping a close eye on that whip count, making sure they can defeat a veto override measure.

The fact that the Congress has not taken advantage of its role and its power of the purse does not mean the Bush Administration is an "Imperial" presidency. In a deeply divided country, the Framers made sure that neither side of this dispute could run away with the issue--thereby creating an imperium of one or a oligarchy of many. The current struggle we face is the legacy of the Framers, a mechanism by which they sought to ensure that any course of action had legitimate public support before being followed. In this, we see the true genius of the Framers.