Friday, May 2, 2014


By F.H. Buckley
Encounter, $27.99, 424 pages

The Obama Administration’s agency abuses (IRS, EPA, ATF, NLRB, DOJ), bogus “recess appointments” and unilateral lawmaking via executive order and discretionary enforcement have focused conservative attention on presidential excesses. However, in “The Once and Future King,” George Mason University law professor F.H. Buckley argues that the problem is more serious — a swollen executive branch, not limited to the current occupant of the White House.

The “monarchical” power wielded by the modern executive branch would have shocked the Founding Fathers, most of whom never imagined that the Constitution they designed in 1787 would make the president a national political “rock star” with the power to wage war, pick and choose which laws to enforce, and spend billions of dollars on pet programs.

Mr. Buckley demonstrates convincingly, however, that of the numerous compromises made by the Framers in Philadelphia, the most fateful was the wording of Article II of the Constitution, which allows voters nationwide to elect the president (albeit through the Electoral College), despite early support for a parliamentary system (called the “Virginia Plan”) in which the president would be appointed by Congress.

During most of the convention, the Framers favored a chief executive that would resemble a prime minister. Nevertheless, under the Constitution they ultimately produced, the president is the only national political figure popularly elected by the people of the United States.

This, and the tremendous expansion of federal power and the growth of the regulatory state (through administrative agencies under the control of the executive), have made the president the equivalent of a king (or worse). Mr. Buckley deplores what he terms “Crown government.”

It is fitting that Mr. Buckley teaches at GMU, since George Mason was the Framer who most feared the power of an “elective monarchy,” and for that reason refused to sign the proposed constitution at the end of the convention. The topic of presidential power has been mined before, by Theodore Lowi, Arthur Schlesinger, Richard Neustadt and others, but Mr. Buckley’s treatment of the subject is eclectic, combining historical overview, political philosophy and comparisons of the United States, Canada (Mr. Buckley’s native country) and Great Britain.

The book begins with a lucid and entertaining — and highly informative — exposition of the convention proceedings. Readers learn that much “conventional wisdom” about the drafting of the Constitution is a myth. The Framers were practical men, faced with the reality that the Articles of Confederation were a failure. They struggled to reach a compromise on an alternative, overcoming numerous divisions and frequently changing their minds. The Constitution that emerged was not preordained or inevitable; it was negotiated for months, by a fractious committee.

How did the modern presidency grow to dominate the legislative branch? Mr. Buckley identifies several factors, including executive usurpation and congressional abdication (especially by delegating extensive policymaking authority to the alphabet soup administrative agencies under presidential control). The president’s role as head of state gives him a great advantage over the other branches.

Mr. Buckley contends that power “naturally gravitates” to a unitary figure (such as the president) and away from disorganized groups (such as Congress). Ironically, the “separation of powers” embodied in the structure of the Constitution exacerbates the current imbalance of power by diluting congressional power and often leading to deadlocks. Cowed by the president’s bully pulpit, Congress has become weak even in the areas expressly assigned to it by the Constitution, such as appropriations. Witness the reluctance to hold firm on a budget.

It is always easier to identify a problem than to devise a solution, and curing the “elective monarchy” is no exception. Mr. Buckley makes a compelling case that Americans would be better served by a parliamentary system, but this will never happen.

“Fixing” the Constitution via Article V amendment is well-nigh impossible, and the reforms Mr. Buckley proposes — having Congress appoint the president, allowing Congress to remove the president on less than the two-thirds vote currently required for impeachment, enacting laws by national referendum, and (elsewhere) eliminating the Senate — are amusing but unrealistic.

What may be attainable are incremental measures: taming the agencies by limiting delegation and increasing judicial oversight of regulations; shrinking the scope of federal power by revisiting Supreme Court precedents interpreting the Commerce Clause power; and exhorting Congress to reclaim the powers that the Framers gave them, by passing fewer and more specific laws and insisting on executive accountability.

Mr. Buckley doesn’t put much faith in the courts to correct the tilt toward excessive executive power, but they may be the best tool available, starting with revisiting the Supreme Court’s 1984 Chevron decision, which made agencies virtually autonomous under a deferential “arbitrary and capricious” standard of review.

Mr. Buckley is the rare scholar who can write engagingly for a popular audience (he is also senior editor of The American Spectator), so his prose has an informed verve. “The Once and Future King” is essential reading for Americans tired of being subjects of a Crown government.

Mark Pulliam is a lawyer and commentator in Austin, Texas.

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