The law: connecting presidential power to public law.
The American Political Science Association, founded in 1903, adopted as its mission the scientific study of government, law, and administration. Of six distinct topics identified, two focused on comparative legislation and political theory. The other four were issues of law: international law, including diplomacy; constitutional law, including law making and political parties; administrative law, including colonial, national, state, and local; and historical jurisprudence (Proceedings of the American Political Science Association, 1905, 11).
Edward S. Corwin
As an undergraduate at the University of Michigan, Edward Corwin studied European politics and history, economics, Latin, French, mathematics, and constitutional studies. After taking a few years off to teach high school and work with Professor Andrew McLaughlin at the University of Michigan, he accepted a fellowship at the University of Pennsylvania to study under Professor John Bach McMaster and received his PhD in history in 1905 (Crews 1985, 4-6). From there he joined Princeton University as one of the new "preceptors" to teach students. At that time Woodrow Wilson served as president of the university. From 1909 to 1911, Corwin with his doctorate in history published articles in the Michigan Law Review and the Harvard Law Review. By 1911, he had become full professor and the highest-paid preceptor (Crews 1985, 11).
Among nonlawyers, Corwin's scholarly record in the field of public law and constitutional law is unparalleled. His 20 books include National Supremacy: Treaty Power vs. State Power (1913), The Doctrine of Judicial Review: Its Legal and Historical Basis and Other Essays (1914), The President's Control of Foreign Relations (1917), John Marshall and the Constitution (1919), The Constitution and What It Means Today (1920, but reprinted and updated regularly after that), The President's Removal Power under the Constitution (1927), The Twilight of the Supreme Court (1934), The Commerce Power Versus States Rights (1936), Court Over Constitution (1938), Total War and the Constitution (1947), The "Higher Law" Background of American Constitutional Law (which appeared in the Harvard Law Review in 1928-29 before being published in 1955), and The Presidency Today (with Louis W. Koenig, 1956).
Corwin's major work, The President: Office and Power, first appeared in 1940. A second revised edition appeared a year later. The third and fourth editions were published in 1948 and 1957. As he explained in the preface, the book "is primarily a study in American public law" (Corwin 1957, vii). He expressed concern about "a long-term trend at work in the world that consolidates power in the executive departments of all governments, first in the person of one individual, then in an 'administration' " (Corwin 1957, 304).
In addition to numerous articles in Harvard Law Review and Michigan Law Review, Corwin published in the Yale Law Journal, University of Pennsylvania Law Review, Columbia Law Review, Virginia Law Review, Cornell Law Quarterly, New York University Law Quarterly Review, Boston University Law Review, American Bar Association Journal, Washington Law Review, New Jersey Law Journal, Notre Dame Lawyer, and New York University Law Review. He wrote regularly for political science journals, magazines, and newspapers. In addition, he turned out 58 letters to the editor (Crews 1985, 77-130).
Corwin's major difficulty in upholding scholarly standards involved his decision in 1937 to defend President Franklin Roosevelt's court-packing plan. In previous years, Corwin had opposed adding justices to the Supreme Court as a means of shifting constitutional doctrine. Yet when Roosevelt submitted his court-packing plan to Congress in 1937, Corwin offered "immediate and outspoken support" and became identified as "a Roosevelt loyalist" (Crews 1985, 28). His constitutional analysis could be seen as offering a personal benefit because the addition of six justices "increased Corwin's prospect for joining the Court" (Crews 1985, 28).
On March 17, 1937, the Senate Judiciary Committee called Corwin to testify on Roosevelt's plan. Over a three-hour period, committee members probed Corwin's analysis and paid particular attention to his shift in positions. They wanted him to explain why he had changed his views. His initial statement and responses to questions are available in a book published by Richard Loss (1987, 218-77). The experience of being repeatedly grilled by informed and knowledgeable lawmakers marked a "deep personal, professional, and scholarly disappointment" (Crews 1985, 31).
From Arthur Schlesinger to James McGregor Burns
Corwin's dedication to public law in his study of the presidency was followed by scholars who paid little attention to legal and constitutional principles. From the 1940s to the 1960s, Arthur M. Schlesinger, Jr., Henry Steele Commager, Clinton Rossiter, Richard Neustadt, and James McGregor Burns argued that it was politically necessary and desirable to transfer ever-greater power to the president. They wrote about presidential power in personal terms, generally seeing in the office unique qualities beneficial for the country in combating international fascism and communism. The framers' aspiration for self-government--operating through Congress--held little interest for them.
Schlesinger's book, The Age of Jackson (1949 ), looked to Andrew Jackson as a model for preserving democracy against the 1940s threat of world fascism. He praised Theodore Roosevelt for "usher[ing] in a period of energetic government" and paid tribute to Woodrow Wilson for understanding "the need for executive vigor and government action" (Schlesinger 1949 , 188). The emphasis on executive energy, vigor, and action left little room for Congress, the courts, or the system of checks and balances. Schlesinger's three books on The Age of Roosevelt applauded the activism and leadership of Franklin D. Roosevelt (Schlesinger, 1957, 1958, 1960). To Schlesinger, the eighteenth-century Constitution of the framers needed to be replaced by a twentieth-century model supportive of presidential government.
Truman's unilateral war against North Korea in June 1950 was quickly defended by Schlesinger and fellow historian Henry Steele Commager. With partisan motivations, they made short work of those who raised constitutional concerns. In a letter published in the New York Times, Schlesinger attacked Senator Robert Taft for claiming that Harry S. Truman "had no authority whatever to commit American troops to Korea without consulting Congress and without congressional approval." Taft's statements, Schlesinger said, "are demonstrably irresponsible." Until Taft "and his friends succeed in rewriting American history according to their own specifications these facts must stand as obstacles to their efforts to foist off their current political prejudices as eternal American verities" (Schlesinger 1951, 28). In his book The Imperial Presidency, Schlesinger acknowledged that his own statements about Taft and Truman were "demonstrably irresponsible" and that he had "foisted off" his own political and partisan prejudices (1973, 139, 286). The imperial presidency was fine with Schlesinger in the hands of Roosevelt and Truman. It did not look as good under Richard M. Nixon.
Commager joined Schlesinger in opposing Taft and other critics of the war against North Korea. Writing for the New York Times on January 14, 1951, Commager rebuked members of Congress for claiming that Truman had "usurped" power and "violated the laws and the Constitution of the United States." Those attacks against Truman, he said, had "no support in law or in history" (Commager 1951a, 11). He described these critiques as "so hackneyed a theme that even politicians might reasonably be expected to be familiar with it" (Commager 195 la, 11). What was hackneyed, as will be explained, was Commager's willingness to let his partisan beliefs push aside the professional duties of a scholar.
For the New York Times, on April 1, 1951, Commager dismissed apprehension about presidential power as "misguided and pernicious." It arose "not out of real but out of imagined dangers. It is rooted not in experience but in fears." Strong presidents, he insisted, had used executive power boldly but without threatening democracy or impairing the constitutional system. "There is, in fact, no basis in our own history for the distrust of the Executive authority" (Commager 1951b, 15). He looked to "long-established traditions of Presidential control," referring to the president "as the sole organ of the Government in the conduct of foreign relations" (Commager 1951b, 33). As a historian, he should have known that the sole-organ speech by John Marshall in 1800 did not advocate plenary, independent, exclusive, or inherent presidential power over foreign relations. Marshall merely explained, as a member of the House of Representatives, that President John Adams acted properly under the extradition provision of the Jay Treaty when he turned over to England a British subject charged with murder (Fisher 2007). Anyone reading Marshall's speech can understand how Justice Sutherland in the 1936 Curtiss-Wright decision misrepresented it (Marshall 1800).
The shallow, misleading, and uninformed analyses by Schlesinger and Commager were met by a rebuke from Corwin. In an article published on January 29, 1951, he criticized both historians for ascribing to the president "a truly royal prerogative in the field of foreign relations." He remarked that "our high-flying prerogative men appear to resent the very idea that the only possible source of such control, Congress to wit, has any effective power in the premises at all" (Corwin 1951, 15).
By 1967, after President Lyndon Johnson's decision to escalate the war in Vietnam, both Schlesinger and Commager urged Congress to restore its primacy in going to war. Checks were now needed on presidential power. To Schlesinger, "something must be done to assure the Congress a more authoritative and continuing voice in fundamental decisions in foreign policy" (Schlesinger and de Grazia 1967, 28). Also in 1967, Commager told the Senate Foreign Relations Committee that there should be a reconsideration of executive-legislative relations in the conduct of foreign relations (U.S. Senate 1967, 21). When he returned to the committee in 1971, he testified that "it is very dangerous to allow the President to, in effect, commit us to war from which we cannot withdraw, because the warmaking power is lodged and was intended to be lodged in the Congress" (U.S. Senate 1971, 62).
Remarkably, both Schlesinger and Commager discovered late in their distinguished academic careers that all three branches are subject to the Constitution and that it includes the basic principle of checks and balances. That understanding, eventually appreciated by both historians by 1967, was needed in 1950 when they supported Truman's decision to become the first president to take the country to war without congressional authority. In The Imperial Presidency, Schlesinger admitted to contributing to "the presidential mystique" (1973, ix). It is helpful for scholars to look back on their positions and admit error, but the time for scholarly opposition to presidential violations of the Constitution is when they occur, not decades later (Fisher 2005).
Clinton Rossiter's The American Presidency, published in 1956 followed by a paperback edition in 1960, promoted an idealized and romanticized image of executive power that was entirely unrelated to the performances of those who occupied the Oval Office. Apparently believing that he could reinforce this heroic model by reaching back in time for an early precedent, he offered this 1861 praise from an Englishman, John Bright, about the American president: "I think the whole world offers no finer spectacle than this; it offers no higher dignity; and there is no greater object of ambition on the political stage on which men are permitted to move." Continuing, Bright said "there is nothing more worthy of reverence and obedience, and nothing more sacred, than the authority of the freely chosen magistrate of a great and free people; and if there be on earth and amongst men any right divine to govern, surely it rests with a ruler so chosen and so appointed" (Rossiter 1960, 15).
The properties of reverence, obedience, sacredness, and divine right--usually reserved for religion or perhaps the kind of absolute monarchs rejected by the framers--infused Rossiter's work on the presidency. He set forth the purpose of his book: "to confirm Bright's splendid judgment by presenting the American Presidency as what I honestly believe it to be: one of the few truly successful institutions created by men in their endless quest for the blessings of free government" (Rossiter 1960, 15). Admitting that the office had "its fair share of warts," he wanted "to make clear at the outset my own feeling of veneration, if not exactly reverence, for the authority and dignity of the President" (Rossiter 1960, 15-16). The words veneration and reverence generally express respect, awe, and devotion, describing an office as holy and sacrosanct. With that approach, Rossiter's analysis could not admit legal and constitutional constraints on the president, including checks and balances. Under Rossiter's analysis, the president should be left alone to do good for the nation.
Rossiter was Corwin's last doctoral student. Why would someone with that legal training display so little interest in public law and constitutional checks? To Rossiter, the checks operating on the president are "internal rather than external," kept under control by his "conscience and training, his sense of history and desire to be judged well by it." With those guidelines, a president may "do great things" without violating "the accepted dictates of constitutionalism, democracy, personal liberty, and Christian morality" (Rossiter 1960, 70). External checks were not needed or worth having.
Rossiter died in 1970. We do not know how his trust in presidential power, unchecked by law or other branches, might have changed with the escalation of the war in Vietnam, Nixon's involvement with Watergate, Ronald Reagan's Iran-Contra, the political records of Jimmy Carter and Bill Clinton, George W. Bush's decision to go to war against Iraq on the basis of six false claims that Saddam Hussein possessed weapons of mass destruction, or Barack Obama in 2011 taking unilateral offensive military action against Libya. What is clear, however, is that Rossiter's defense of unchecked presidential power ignored the constitutional framework.
In the 1957 edition of The President: Office and Powers, Corwin offered a backhand compliment to his former student: "Professor Rossiter, whose work on The American Presidency became a classic on publication, teaches, in effect, that the presidency is pervaded with a principle of meliorism that guarantees that it will always be just right. His motto is 'Leave the Presidency alone'" (Corwin 1957, 495n.106). Meliorism is the belief that things will always get better. Rossiter could not have missed this sarcasm from his former professor.
It might be argued that Rossiter adopted the public law model by writing Constitutional Dictatorship: Crisis Government in the Modern Democracies (1948), reprinted in 1963. Certainly it is an ambitious book that analyzes the threat to democracy in France, Great Britain, and the United States. But not only did Rossiter carelessly utter an oxymoron (constitutional dictatorship), he fundamentally misunderstood conditions in the Civil War by referring to "the Lincoln Dictatorship." He argued that Lincoln was "the sole possessor of the indefinite grant of executive authority in Article II of the Constitution" (Rossiter 1963, 225). Lincoln never argued that his powers were "indefinite." He understood what was set aside for Congress in Article I and for the president in Article II. He did not confuse the two. As Rossiter admits, Lincoln told Congress on July 4, 1861, that he had taken actions, "whether strictly legal or not, ... under what appeared to be a popular demand and a public necessity, trusting then, as now, that Congress would readily ratify them. It is believed that nothing has been done beyond the constitutional competency of Congress" (Rossiter 1963, 229; see also Richardson 1925, 7:3225). With those words, Lincoln publicly admitted that he had acted beyond his legal and constitutional powers. He had exercised not only his own powers but those of Congress and therefore needed statutory authority to make his actions legal. That is not the language of a constitutional dictator (Fisher 2010a).
Richard Neustadt's Presidential Power is probably the most influential work on the presidency to guide scholars, students, the media, policy makers, and the public. Millions of copies were assigned to university classes. Neustadt endorsed a nearly unlimited concept of independent presidential power, unconcerned with the Constitution or law. He makes that plain in the preface: "This is not a book about the Presidency as an organization, or as legal powers, or as precedents, or as procedures" (Neustadt 1964 , vii). The deficiency of his work, as explained by Ronald Moe, was to cast aside legal and constitutional values, separating presidential power from a framework of public law (Moe 1999, 2004).
Neustadt's work has an initial appeal because it focuses on interesting stories, case studies, and an apparent effort to study presidential power in practical terms. He begins with a modest and attractive theme by defining presidential power as "the power to persuade" (Neustadt 1964 , 23). He explains that persuasive power "amounts to more than charm or reasoned argument.... For the men he would induce to do what he wants done on their own responsibility will need or fear some acts by him on his responsibility."
The powers of the elected branches "are so intertwined that neither will accomplish much, for very long, without the acquiescence of the other." This appears to promote a constitutional system of checks and balances by describing political power as "a give-and-take" (Neustadt 1964 , 43, 45, 47). Readers will recall Neustadt's statement that the framers did not create a government of separated powers. Instead, they "created a government of separated institutions sharing powers" (Neustadt 1964 , 42, emphasis in original).
That position, appearing early in the book, is highly misleading. Neustadt later urges presidents to take power, not give it or share it. The objective is to acquire and concentrate power in the presidency and use it for personal reasons. Neustadt praises Franklin D. Roosevelt and derides Dwight D. Eisenhower for failing to seek political power for personal use. He explains, "The politics of self-aggrandizement as Roosevelt practiced it affronted Eisenhower's sense of personal propriety" (Neustadt 1964 , 157). He did not understand that Eisenhower's position was rooted in the constitutional values of separation of powers and federalism. Such issues of public law did not interest Neustadt.
With regard to Truman's decision to go to war against North Korea without first obtaining congressional authority, Neustadt offered no constitutional objections. Certainly Truman made no effort to "persuade" Congress to grant him authority to use military force against North Korea. He acted unilaterally. For Neustadt, there was no need for "give-and-take" or "shared power." Neustadt believed it was Truman's right "to make decisions and to take initiatives." Neustadt admired Truman as the "man-in-charge" and someone "who seeks to maximize his power" (1964 , 166, 171). Constitutional limits and checks and balances did not enter Neustadt's analysis. He urged personal power, not institutional power or constitutional authority. Such a framework met the needs of the president that Neustadt wanted. It also fits the political models of Adolf Hitler, Benito Mussolini, and Joseph Stalin.
When Neustadt's book was reissued in 1990 under a different title, he seemed to alter his model of presidential power, taking into account the abuse of executive power during the Vietnam War and Watergate. He now wrote, "To share is to limit; that is the heart of the matter, and everything this book explores stems from it" (Neustadt 1990, x). Nothing in his earlier editions promoted those values. Belatedly, Neustadt was taking some cues from Corwin.
James MacGregor Burns is another scholar who promoted presidential power with little interest in legal or constitutional constraints. His work, Presidential Government: The Crucible of Leadership (1965), explained that presidents have two choices: first, "operate on the basis of the odd Madisonian model--the model of checks and balances, bargaining among minority coalitions, limited presidential power, and the inability of government to make major departures in policy except on the basis of a popular consensus"; second. act on the Jeffersonian model of executive "leadership, majority rule, party responsibility" (Burns 1965, ix). Burns strongly favored the latter. Without questioning the accuracy and validity of Justice Sutherland's erroneous dicta in the 1936 Curtiss-Wright decision, Burns adopted Sutherland's language about the "very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations--a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions in the Constitution" (Burns 1965, 208). Burns added, "The power of Congress to make a declaration of war has become hardly more than a formality" (Burns 1965, 208).
Later in the book, Burns explains that he had "long favored an active partnership between President and Congress rather than presidential supremacy" (Burns 1965, 295). Still, he did not disavow the sole-organ doctrine. As for those who worry about "the perils of the Presidency," he found "no support in history" that "an authoritarian type of person" would be elected president (Burns 1965, 295). He addressed a second concern: "that some President might, because of personality defects, crumble under pressure and perpetuate a terrible act of violence such as a nuclear attack." In acknowledging the seriousness of this issue, he advised that the people who could restrain the president from "erratic, irrational, or psychotic action are those close to him--and not Senators or congressmen or judges" (Burns 1965, 297). As for the constitutional system of checks and balances, they "do not operate in the making of war or even in the making of foreign policy that could precipitate war." If the president "makes a colossal mistake, there is no institutional safeguard against its consequences." A "presidential course set for war cannot be reversed." The only protection is the one the White House already affords: "a group of men closely related to the President who can restrain him if need be" (Burns 1965, 298).
Burns agreed with Neustadt on this fundamental point: "As a general proposition the Presidency had become the chief protector of our procedural and substantive liberties; as a general proposition, the stronger we make the Presidency, the more we strengthen democratic procedures and can hope to realize modern liberal democratic goals" (Burns 1965, 318). As for the role of Congress, Burns regarded it as "an almost total failure" (Burns, 329).
A study in 1963 listed the fields of political science in which the most significant work was being done. At the top: general politics and behavioralism. Next in importance came comparative government and international relations. Following next were public administration, political theory, and American government. At the very bottom: public law (Somit and Tanenhaus 1963, 941).
Restoring Balance and Public Law
The studies described in the previous section urged presidents to act decisively and unilaterally, equating greater executive power with the public good. The need to check and limit presidential power was ignored or dismissed. Other scholars believed that the framers were correct to be concerned about political abuse that comes from concentrated power. The system of checks and balances from the eighteenth century continued to apply to the twentieth century, perhaps even more so because of greater presidential authority and resources. From the 1940s to the 1960s, those who criticized presidential power and defended Congress tended to be conservatives, including Friedrich Hayek, James Burnham, Willmoore Kendall, and Alfred de Grazia.
In The Road to Serfdom, Hayek issued this warning: "The belief is becoming more and more widespread that, if things are to get done, the responsible authorities must be freed from the fetters of democratic procedure" (1994 , 75). Power, he objected, would flow from the people to executive officials. James Burnham, in Congress and the American Tradition, said the framers "believed that in a republican and representative governmental system the preponderating share of power was held and exercised by the legislature" (1959, 92). "By the intent of the Founding Fathers and the letter and tradition of the Constitution, the bulk of the sovereign war power was assigned to Congress. Although the Constitution names the President Commander in Chief, it does not explicitly allot him any other element of the war power," other than the defensive authority to repel sudden attacks (Burnham 1959, 184). He regretted the "abdication of Congress" and predicted that "the political death of Congress would mean plebiscitary despotism for the United States in place of constitutional government, and thus the end of political liberty" (Burnham 1959, 277, 352).
Willmoore Kendall took a fresh look at some prevailing stereotypes, with intellectuals believing that the executive reflected "enlightened opinion" and Congress representing low principle, reaction, and unintelligence (1960, 325). Interestingly, Kendall compared the speaking styles of representatives, senators, and presidents. He concluded that members of the House, because of the limited size of their constituency, were more likely to be "talking about something, not nothing," but that as the constituency increased in size with the Senate and the presidency, those elected officials were more likely to find themselves talking about "nothing, not something, and will also find themselves talking about situations that are too large, too complicated, for them to understand" and communicate with any clarity (Kendall, 1960, 343, emphases in original).
Alfred de Grazia wrote regularly in support of Congress and self-government. His Republic in Crisis: Congress against the Executive Force (1965) examined the claim that the President is strong because of his unity, while Congress is weak for its fragmented and decentralized nature. He wrote, "The President is a Congress with a skin thrown over him" (De Grazia 1965, 72). His point was that the executive branch is highly fragmented, with conflicts among and within departments and bureaus, but scholars and the media nonetheless speak of a magical unity said to exist in the president. Rossiter referred to the president as "Chief Legislator," tasked with guiding Congress "in much of its lawmaking activity" (Rossiter 1960, 28). De Grazia referred to a study by Lawrence Chamberlain on the origin of major legislation from 1873 to 1940 (Chamberlain 1946). Chamberlain found that congressional influence was twice that of presidents (De Grazia 1965, 80-82). De Grazia later organized a series of 12 studies, published as Congress: The First Branch of Government (De Grazia 1966).
From the 1970s to the 1990s, during the administrations of Gerald Ford, Jimmy Carter, Ronald Reagan, and Bill Clinton, conservative support for Congress and public law began to decline. Neoconservatives now vigorously championed plenary presidential power, especially in the field of national security. The names include Irving Kristol, Jeffrey Hart, Norman Podhoretz, Charles Krauthammer, Gordon Crovitz, Jeremy Rabkin, and Terry Eastland (Crovitz and Rabkin 1989; Eastland 1992; Hart 1974; Krauthammer 1987; Kristol 1974; Podhoretz 1976). It has been said, I think correctly, that nothing explains this shift in the conservative community "more than the election of Ronald Wilson Reagan" (Tatalovich and Engeman 2003, 10).
Some conservative scholars, including Joseph Bessette (1994), promoted thoughtful consideration of constitutional issues and the value of Congress and the deliberative process. In a volume edited with Jeffrey Tulis in 1981, he placed presidential power within the framework of a constitutional order (Bessette and Tulis, 1981). In 2009, they issued a second edition with many new authors (Bessette and Tulis, 2009). Mickey Edwards, who served for many years as a Republican member of the U.S. House of Representatives from Oklahoma, is another conservative scholar who promotes checks and balances and separation of powers. His book, Reclaiming Conservatism, deplored House and Senate Republicans for functioning as "just another executive branch agency, waiting for orders from the president and his staff" (Edwards 2008, 81). He criticized the George W. Bush administration for its "arrogance of power" and "an unusually high degree of incompetence" (Edwards 2008, 95). Similarly, Gene Healy of the Cato Institute published a hard-hitting critique of the romance (by both conservatives and liberals) with executive power: The Cult of the Presidency (2008).
Thomas Cronin was an early critic of artificial models of the U.S. president. In a paper delivered at the 1970 American Political Science Association annual meeting, he shot holes in romantic and idealized statements about the presidency. Entitled "The Textbook Presidency and Political Science," Cronin accused scholars of promoting "inflated and unrealistic interpretations of presidential competence and beneficence." In what he called infatuation with the presidency, the cost was a diminished role for Congress, the Constitution, checks and balances, and democratic government (Cronin 1970).
In The State of the Presidency (1975), Cronin expanded on those themes in a chapter called "The Cult of the Presidency: A Halo for the Chief." He described the writings of Clinton Rossiter as "one of the most lucid venerations of the American presidency" and objected to Neustadt's suggestion that if a president "lacks a consuming hunger for the office and a penchant for manipulating people, then he or she is unfit for office" (Cronin 1975, 28, 30). The final chapter of his book has a title that would have been inconceivable to Schlesinger, Commager, Rossiter, Neustadt, and Burns: "Making the Presidency Safe for Democracy."
By the 1980s and 1990s, a number of scholars analyzed the damage done by presidential military initiatives. Larry Berman highlighted the miscalculations and deceit by President Lyndon Johnson in escalating the war in Vietnam. Johnson and his advisors were discredited when it was discovered they had manipulated information (Berman 1982, 1989). An insightful study by John Burke and Fred Greenstein (1989) compared the leadership styles of Eisenhower and Johnson in determining the reality, feasibility, and constitutionality of national security policy, with Johnson coming in a distant second. A book by H. R. McMaster, an Air Force major, punctured the belief that presidents are surrounded by experts who provide reliable information and advice. He explained how the Johnson administration's war in Vietnam was undermined by partisan motivations, miscalculations, the timidity of the Joint Chiefs in offering realistic options, and a record of lies and deceptions (McMaster 1998). Alexander DeConde issued a trenchant analysis of presidential wars, pointing out how scholars and other writers "built an industry out of the study of the presidency. They gave it fictitious qualities that defied reality" (2000, 5).
Previous presidential scholars, including Schlesinger, Commager, Rossiter, Neustadt, and Burns, argued that the nation benefited by transferring ever-greater power and discretion to the president. That policy has been systematically debunked by a number of contemporary scholars who place executive power within the framework of the Constitution, law, and checks and balances. They do not promote imaginary qualities about presidential virtues and goodness. These studies include the works of Christopher Pyle and Richard Pious on national security law (1984, 2011). Other examples of political scientists who ground their work on public law include Mark Rozell (2010) on executive privilege, Robert Spitzer (1988) on the veto power, Katy Harriger (1992, 2000) on the independent counsel, Phillip Cooper (2002) and Kenneth Mayer (2001) on executive orders, Nancy Baker (1992, 2006) on the Justice Department, David Gray Adler and Larry N. George (1996) on the war power, James Pfiffner (2004, 2008) on presidential character and wars, Robert Pallitto and William Weaver (2007) on the state secrets privilege, Mitchel Sollenberger (2008) on the power to nominate, and Jeffrey Crouch (2009) on the power to pardon. Sollenberger and Rozell (2012) published a book that analyzes presidential "czars" within a careful constitutional framework. Chris Edelson, a presidential scholar, has a book on Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror (2013). These studies analyze legal issues not presidential virtuousness. They subordinate presidential power to a higher constitutional purpose: maintaining republican government.
In contrast to these law-based studies by political scientists, certain law professors remain attracted to a system of government that concentrates power in the president without any legal or constitutional checks, either from Congress or the courts. In Terror in the Balance (2007), Eric Posner and Adrian Vermeule describe the executive branch as the only institution of government with the resources, power, and flexibility to respond to national security threats. Individual civil liberties, they argue, are appropriately subordinated and marginalized because they "interfere with the effective response to the threat" (Posner and Vermeule 2007, 4). They urge lawyers to "restrain other lawyers and their philosophical allies from shackling the government's response to emergencies with intrusive judicial review and amorphous worries about the second-order effects of sensible first-order policies" (Posner and Vermeule 2007, 275). What if the policies are senseless and abusive? No external restraint on executive actions? Posner and Vermeule maintain that, as lawyers, they "do not have any expertise regarding optimal security policy, and so we do not try to argue for or against any particular policy" (2007, 6). But in fact they do argue for a general policy: leave the president alone to protect the nation. They advise judges to defer to executive decisions "though we have no view about whether those policies are correct" (Posner and Vermeule 2007, 94). Thus, whether executive policies are correct or incorrect, legal or illegal, courts should be submissive. The two law professors seem to be channeling the orientation of Schlesinger and Commager in their early careers and the writings of Rossiter, Neustadt, and Burns.
Posner and Vermeule develop the same theme--actually a more radical one--in The Executive Unbound: After the Madisonian Republic (2010). Their advice is to trust not in law or the Constitution to constrain the president. Instead, they advise relying solely on public opinion and political elections, "substituting the rule of politics for the rule of law" (Posner and Vermeule 2010, 14). To reach that position they follow two contradictory methods of analysis. For Congress and the judiciary, they review various deficiencies and weaknesses before dismissing both branches in the fight against terrorism. When they analyze the president and the executive branch, they create an imaginary and idealistic model, attributing to presidents and executive officials an unmatched capacity to respond effectively to emerging threats. They express confidence that the president "knows the range of options available, their likely effects, their costs and benefits--thanks to the resources and expertise of the executive branch--and so, if he is well-motivated, he will choose the best measures available" (Posner and Vermeule 2010, 130).
On what evidence do they make this claim? Their trust that the president is "well-motivated" and receives reliable advice from executive officials does not take into account the lengthy record of presidential errors, misjudgments, and incompetence in many military operations, including Korea, Vietnam, and Iraq (Fisher 2010b). They advise "normative theorists" to "cease bemoaning the decline of Madisonianism and instead make their peace with the new political order" (Posner and Vermeule 2010, 209). Yet their book is a normative effort from start to finish. By dispensing with law as a check on presidential power, would they have access to a court if the executive branch designated them as terrorists or threats to national security and held them in indefinite military detention? They do not explore that prospect.
Over a period of decades, presidential studies were dominated by the writings of Rossiter, Neustadt, Commager, and other scholars, promoting imaginary properties for those who sat in the Oval Office, with little attention to legal and constitutional checks (Fisher 2012). There was some limited pushback against their theories during that period. The heavy cost of presidential wars, coupled with Watergate, Iran-Contra, and other scandals, reawakened interest in, and respect for, separation of powers and checks and balances. That trend, healthy for constitutional government, was partly undermined by the terrorist attacks of 9/11, leading many scholars and public officials to support unchecked presidential power. Costly and poorly executed wars in Afghanistan and Iraq produced renewed respect for constitutional government.
It is encouraging that many political scientists have dedicated their careers to public law and public policy. Their work is intended to be useful to public officials. As a consequence, they are often invited to testify before congressional committees and asked for advice by the other branches. They dismiss academic objections that they are improperly following a "normative" course by making judgments and reaching conclusions. Government officials depend on specialists who have thoroughly researched a field and are prepared to state their positions and explain how they reached them. Thomas Haskell remarked, "I see nothing to admire in neutrality. My conception of objectivity ... is compatible with strong political commitment. It pays no premium for standing in the middle of the road, and it recognizes that scholars are as passionate and as likely to be driven by interest as those they write about" (1998, 150).
Earlier this article identified political scientists and presidential scholars who have worked closely in public law and public policy: Christopher Pyle, Richard Pious, Robert Spitzer, Phillip Cooper, Kenneth Mayer, Katy Harriger, Nancy Baker, David Gray Adler, James Pfiffner, Robert Pallitto, William Weaver, Mitchel Sollenberger, Jeffrey Crouch, and Chris Edelson. I now want to acknowledge the accomplishments of others: Walter Oleszek for providing high-level support to lawmakers and congressional committees, Nancy Kassop for studies in national security law and the White House Counsel's office, Jasmine Farrier for work on congressional budgeting and delegated authority, and Bruce Peabody's publications on constitutional and statutory interpretation (Fisher 2013, 520-21). Other practitioners have contributed significantly to public policy and public law: Peri Arnold, Larry Berman, Joseph Bessette, Jeffrey Biggs, Meena Bose, Elizabeth Bowes, Thomas Cronin, George Edwards, Lee Epstein, Ryan Hendrickson, Loch Johnson, Christopher Kelley, Jessica Korn, Martha Kumar, Frances Lee, Thomas Mann, Maeva Marcus, Norman Ornstein, James Thurber, Jeffrey Tulis, Stephen Wayne, Marcia Lynn Whicker, and Don Wolfensberger (Fisher 2013, 521-23).
Lawyers have dominated the field of public law for too long. It is time not to encroach on their domain but to recapture territory unwisely abandoned. Political scientists have much to offer with their studies. More important than how presidents do something, or why they act as they do, is to determine the source of their authority and limits to it.
AUTHOR'S NOTE: Thanks to Chris Edelson, Richard Pious, Mitchel Sollenberger, and Robert Spitzer for many thoughtful suggestions on this article.
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The Constitution Project
Louis Fisher is Scholar in Residence at The Constitution Project. He spent four decades at the Library of Congress from 1970 to 2010 as Senior Specialist in Separation of Powers and Specialist in Constitutional Law. Many of his articles, books, and congressional testimony are available at http://loufisher.org.
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|Publication:||Presidential Studies Quarterly|
|Date:||Feb 12, 2014|
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