The Presidency in the Constitutional Order

An Historical Examination

Joseph M. Bessette, Jeffrey Tulis

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351476522
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

This classic collection of studies, first published in 1980, contributes to the revival of interest in the powers and duties of the American presidency. Unlike many previous books on the constitution and the president, the contributors to this volume are political scientists, not law professors. Accordingly, they display political scientists' concern with structures as well as power, with conflict between the branches of government as well as their functional separation, and with political prescription as well as legal analysis. Underlying the entire volume is a persistent attention to the nature of executive power and its particular manifestation in the American system.

Part One introduces the foundations that underlie contemporary issues, including the famous James Madison-Alexander Hamilton debate over the powers of the presidency. Contemporary political and scholarly controversies, which are the subjects of Part Two, include the constitutionality of the War Powers Resolution of 1973, the legislative veto, executive privilege and secrecy, the character of the presidency, presidential selection, and the nature of executive power.

The essays in The Presidency in the Constitutional Order represent some of the most cogent thought available about the highest elected office in America, and the themes of the volume continue to be timely and provocative.

PART ONE: Foundations

I
The Constitution, Politics,
and the Presidency

Joseph M. Bessette and Jeffrey Tuils

It was not long ago that a large portion of the political and scholarly community proudly shared the view that our government was presidential government. It was widely believed that the dynamics of American politics virtually guaranteed a compatibility between presidential policy and the highest goals of the American regime, that what was good for the presidency was good for the country. The administrations of two strong presidents, Lyndon Johnson and Richard Nixon, however, effectively shattered the consensus on these points. In the wake of sustained public criticism of what appeared to be unfettered executive power, scholarship on the nation’s highest office has entered a new period characterized by dissatisfaction with the settled views of the recent past and a renewed attention to the problems posed by executive power for constitutional government.

Although the current reconsideration of the role and purposes of the executive branch is unprecedented in scope, much of the recent literature is in fact a manifestation of a mode of analysis that was given classic expression nearly four decades ago in what was for many years the standard text on the presidency: Edward Corwin’s The President: Office and Powers. Corwin described his work as “primarily a study in American public law.” Its central theme was “the development and contemporary status of presidential power and of the presidential office under the Constitution.” The study begins with an analysis of the executive office as established by the Constitutional Convention in 1787, goes on to examine the legal and constitutional development of the office since its inception, and ends with a call for institutional reforms to check “a history of [presidential] aggrandizement.” Not surprisingly, much of the study is an examination of the legal doctrines promulgated by the federal courts. In his final edition Corwin cites over 250 judicial decisions. The clear import of his analysis is that the modern presidency threatens to break free from constitutional restraints, that this poses a serious danger for American democracy, and consequently that a regeneration of respect for constitutional principles and norms is called for. However beneficial presidential leadership might be in specific instances, Corwin suggests, an unfettered executive power is the antithesis of constitutionalism.¹

Around the time that the last edition of The President: Office and Powers was published (1957), Corwin ‘s work was both substantively and methodologically at odds with far-reaching developments in scholarship on American politics. One of these was the increasing extent to which political scientists were turning their attention away from formal rules and procedures to focus instead on actual political behavior, which, it was argued, was little influenced by laws and constitutions. In the field of presidential studies this new orientation was given its most articulate and influential expression in Richard Neustadt’s Presidential Power: The Politics of Leadership. Neustadt’s subject was the “power problem” faced by every president: “From the moment he is sworn the man confronts a personal problem: how to make those powers work for him. That problem is the subject of this book. My theme is personal power and its politics: what it is, how to get it, how to keep it, how to use it.” Neustadt emphasized that the formal authorities vested by the Constitution were not the main determinants of effectual presidential power: “The probabilities of power do not derive from the literary theory of the Constitution” Rather, a president’s power “is the product of his vantage points in government, together with his reputation in the Washington community and his prestige outside.” According to Neustadt some of these “vantage points” derive from the formal authorities vested by the Constitution, thus “formal power” is indispensable to a president’s “personal influence.” Although Neustadt conceded this much, what was truly distinctive about his approach was how little it had to say about specific constitutional provisions. The whole thrust of his analysis was to move us away from formal authority in explaining actual presidential power; for distinctions of the sort employed in constitutional analysis seemed to him to have no effect on presidents: “The things [the president] personally has to do are no respecters of the lines between ‘civil’ and ‘military,’ or ‘foreign’ and ‘domestic,’ or ‘legislative’ and ‘executive,’ or ‘administrative’ and ‘political.’ At his desk—and there alone—distinctions of these sorts lose their last shred of meaning.”²

While Neustadt was rejecting the Constitution as the most important source for understanding the actual exercise of presidential power, other students of American politics were rejecting constitutional analysis for a related but distinct reason: because, in their view, the principles of separation of powers and checks and balances, which lay at the heart of the American constitutional order, made it virtually impossible for American institutions to generate the political leadership necessary to meet contemporary national needs. The foremost proponent of this view was James MacGregor Burns. Reflecting a theme that dates back at least to the writing of Woodrow Wilson, Burns argued that the fear of arbitrary power and of majority tyranny so dominated the minds of the framers that they devised a political system that made any kind of effective political action extremely difficult, if not impossible, at least while constitutional forms were observed. To a large extent “our system was designed for deadlock and inaction.”³ For Burns and a host of other political scientists the way to get around the inherent limitations of the American constitutional system was twofold: to reform the American two-party system in the direction of more programmatic and more highly structured nationally based organizations, and to strengthen the institution of the presidency at the head of the majority party. Consequently, these political scientists recommended a variety of political reforms, some simply requiring voluntary changes on minor matters, some requiring new legislation at the state or national levels, and some mandating amendments to the Constitution. In the last category were proposals for a four-year term for members of the House of Representatives (and perhaps also for senators) synchronized with the presidential term, reform of the electoral college in favor of a more direct popular election, and a reduction in the numbers of senators necessary to ratify a treaty from two-thirds to a simple majority. Those who advanced these and other similar reforms implicitly rejected several principles of the American constitutional order as the proper standard for guiding American politics in the middle of the twentieth century.⁴

As a result of the developments reflected in the works of Neustadt, Burns, and others, by the middle of the 1960s the constitutional or public-law approach was well out of the mainstream of presidential studies. This began to change when Vietnam, Watergate, and other perceived abuses of presidential power led some scholars to reject the predominant political approaches to the study of the presidency because of their apparent lack of standards to limit presidential conduct and their implicit encouragement of executive branch aggrandizement. One result of this reaction was the resurgence of the public-law approach in a variety of studies that attempted to judge presidential action against the traditional standard of constitutionally.⁵ In varying degrees the authors of these studies turned to the document written in 1787, to the original intention of its framers, and to the development of constitutional doctrine throughout American history for a set of standards against which to judge the legitimacy of presidential actions and on the basis of which to curb future abuses. Although these studies have been valuable in reminding us that executive power unconstrained by law is a danger to republican government, they suffer from the same kinds of limitations that characterized the earlier constitutional approach to the study of American politics. First, they are of little help in explaining why political leaders behave the way they do: the connection between constitutional forms and political practice is largely undeveloped. Second, they are particularly weak at demonstrating why the constitutional standards that derive from the document drafted in 1787 should be embraced as a guide for contemporary politics.

It should be noted that most of the contributors to the new public-law studies have been law professors rather than political scientists.⁶ This is one reason why these studies are not centrally concerned with explaining political behavior. Moreover, a mode of analysis which focuses on questions of legality cannot in itself determine whether greater political benefits will derive from strict adherence to the existing fundamental law or perhaps from its alteration or even rejection. In the post-Watergate period legalists have forcefully argued that our national well-being will be enhanced if we rein vigórate the principles of the American Constitution. Such prescriptions, however, are derived not from legal analysis per se but from political reasoning and political judgment.

Of course political scientists have also contributed to the current reconsideration of presidential power. Several new works have appeared which, like the public-law studies, are highly critical of the earlier “textbooks” on the presidency for emphasizing political effectiveness over public responsibility.⁷ They differ from these earlier political studies not so much in method or approach as in their call for a more accountable or democratic presidency. As with the new constitutional studies, their purpose is to establish a set of principles or guidelines that will bring executive power under control. Contrary to the public-law approach, however, these principles are not sought primarily through a reconsideration of the nature of the American constitutional design, but rather derive largely from assessments of recent ādminis trations.

As a result, the constitutional and political approaches are now effectively divorced. The legalists seem unable or unwilling to show how constitutional interpretation is relevant to understanding contemporary political behavior. The political scientists seem susceptible to the charge that it was the emancipiation of presidential studies from a concern with legal and constitutional restraints that implicitly encouraged the abuses of executive power that we have recently witnessed, and that newly devised standards for restraining presidents have an unsatisfactory ad hoc quality to them and cannot match the long-term effectiveness of constitutional safeguards.

We contend that contemporary presidential scholarship is ill served by this divergence between the legal and political approaches—a divergence that stems, perhaps, from agreement on one central point. Whether praising the actions of Franklin Roosevelt or castigating those of Richard Nixon, it is generally implied by legalists and political scientists alike that the most interesting aspects of these presidencies lie outside or beyond the constitutional order. That is to say, the explanation of the inner workings or the real “stuff” of recent presidential politics is to be found elsewhere than in the legal or constitutional sphere. While the legalists certainly want to get the presidency back under the Constitution, thereby implying that the Constitution could limit presidential behavior, and while political scientists concede that the Constitution is an indispensable source of actual political power, neither makes a serious attempt to explain how constitutional forms mold political behavior. We can begin to bridge the gap between the legal and political approaches by reconsidering the various ways in which political forms may influence political practice.

The Constitution and Political Behavior

No argument poses a greater challenge to the pertinence of constitutional analysis to the study of the contemporary American presidency than the charge that this nearly two-century-old document has little if any impact on present practice, in either the legal or political sphere. As one contemporary observer states:

The historical Constitution remains an honored relic, preserved intact in the National Archives. It is a symbol of the nation, much like the flag. In a secular society such as the United States, it is a substitute for God. The ancient Document is worshipped, and vested with mystery and authority and seeming power that no parchment could ever have.⁸

Political scientists in particular tend not to attach much explanatory weight to the Constitution in their accounts of American politics—either because they believe that 190 years of social, economic, and technological change have rendered the original arrangements obsolete, or because in their view constitutional forms never have much more than a tenuous relationship to practice. Nonetheless most students of contemporary politics would at least concede that the United States Constitution establishes the parameters for political conflict, or serves as the arena in which that conflict works itself out. In effect the Constitution sets forth the “rules of the game” for the players in American politics, rules that are not comprehensive, unambiguous, or universally adhered to, but rules on which there is such widespread consensus among the America...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• Preface
• Introduction to the Transaction Edition (2010)
• Part One: Foundations
• Part Two: Contemporary Issues
• Appendix A: Constitutional Provisions Relating to the Presidency
• Appendix B: Two Texts on How to Study the Presidency in the Constitutional Order, by Herbert J. Storing
• Contributors
• Index