Wednesday, October 8, 2014

Both the U.S. Constitution and experience dictate a monumental downsizing of the Office of the Presidency.

It has grown from a tiny acorn into a towering oak since President George Washington.

Taking a page from Shakespeare’s Julius Caesar, the Founding Fathers would ask today, “Upon what meat doth this our presidency feed, that it has grown so great?”

The answer is “Empire.”

Former CIA chief and Defense Secretary Leon Panetta thus errs in faulting President Obama for a reluctance to muscle his policies through Congress or to welcome gladiatorial combat with political opponents. The role of the president under the Constitution is not to play Toscanini to an obedient congressional orchestra, but to bow to Congress except for a handful of foreign policy matters.

Article II, sections 2 and 3 enumerate presidential powers. They are modest: appointing officers of the United States with Senate concurrence; enforcing the laws; negotiating treaties requiring Senate ratification; issuing pardons; acting as commander in chief; receiving ambassadors; delivering an annual State of the Union message; and, recommending to Congress measures thought necessary and expedient. The president also commands a qualified veto authority under Article I, section 7.

Today, a State of the Union message is delivered by the president in person to a joint session of Congress brimming with celebrities. It is punctuated by organized cheering reminiscent of Soviet leader Nikita Khrushchev’s speeches to the Central Committee of the Communist Party. Presidential addresses are filled with legislative proposals.

In contrast, President Thomas Jefferson in 1801 delivered his message in writing. He worried that a personal appearance before Congress would too closely resemble the British monarch’s practice of addressing each new Parliament with a list of policy mandates. Jefferson’s practice continued through the presidency of William Howard Taft in 1912. President Woodrow Wilson in 1913 commenced the modern practice of personal appearances as the United States began its ascent to empire.

Initial presidents believed the qualified veto should be employed only to defend executive power from congressional encroachments, to prevent unconstitutional laws, or to disapprove ill-drafted legislation defying execution. Illustrative was Jefferson’s advice to Washington over a bill chartering the Bank of the United States:

“[U]nless the President’s mind on a view of everything which is urged for and
against this bill is tolerably clear that it is unauthorized by the Constitution, if the pro and con hang so even as to balance judgment, a just respect for the wisdom of the legislature would naturally decide the balance in favor of their opinion.”

Today, presidents wield the veto power over mere policy disagreements with Congress. Moreover, presidential signing statements nullify provisions in a bill that the president unilaterally proclaims are unconstitutional. Signing statements are indistinguishable from line-item veto authority, which the Supreme Court held unconstitutional in Clinton v. New York.

After President John Quincy Adams was defeated in a re-election bid by Andrew Jackson in 1828, he was elected to the House of Representatives in 1830, an institution then of comparable stature and importance. Such a political segue today would be unimaginable, akin Lucifer’s fall from heaven.

In 1885, Wilson took as given “Congress as the central and predominant power of the [constitutional] system” in congressional government. No student of government since then has ever discerned Congress as ascendant over the president. The Holy of Holies, Arthur Schlesinger Jr., authored “The Imperial Presidency” in 1973 tracing the institutional migration of power to the Executive Branch. The more than four decades that have elapsed since then have further elevated the president above Congress, and the republic has suffered accordingly.

Trillions of dollars and thousands of American lives have been squandered in purposeless, objectless, gratuitous presidential wars in Kuwait, Iraq, Bosnia, Kosovo, Afghanistan, Pakistan, Yemen, Libya, Syria, and Somalia. The national debt is approaching $20 trillion. Executive branch regulations stifle economic growth. Ubiquitous executive branch spying is destroying the right to be let alone. Executive secrecy undermines government by the consent of the governed.

We would be better off as a nation if Congress were the lead actor with the president playing a supporting role. Congress is more accessible and responsive to the people. It is more transparent and entertains a wider variety of views and perspectives. It is averse to foreign adventurism. It is better to be slow and steady than fast and impetuous, as the story of “The Tortoise and the Hare” confirms.

We gain strength and maturity as a people by trial and error through the legislative process. We become weak and effete if we accept rule by putative Platonic guardians in the White House.

The choice is ours.

For more information on Bruce Fein, visit brucefeinlaw.

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