In response to: Ten Ways for the Next President to Promote the Rule of Law
Adam White’s Liberty Forum essay offers 10 ways for our 45th President to promote the rule of law, many of which I find appealing. But I fear he could offer a thousand such ideas without much effect, and in the end he concedes that he, too, doubts that Presidents will restrain themselves or their governments for the sake of anything so abstract as constitutional principle. His conclusion: We must ultimately look to Congress to rein in the other political branch, and our hopes will only be realized if and when “the people themselves” (and especially those in the President’s party) make restraining the capriciousness of the executive one of their primary duties. “It will be a generational task,” he says, to force the wave of executive government to finally break and roll back.
He may be right, but in this response I explore a different route to the desired outcome, one in which “the people” come to focus on the cause of constitutional government and the rule of law not because of any rediscovery of principle, but because of a drama played out among elites. I have in mind a particular kind of drama that we’re familiar with from recent American history: the Nixonian tragedy, in which presidential hubris becomes so infuriating that it leads to a passionate reprisal against both the officeholder and the office.
Taking this route would exact many costs, not least that it would mean lowering the average person’s sense of trust in government even below its current nadir. Still, a phoenix-like immolation and resurrection might be the best way to allow the country to stagger back toward constitutional equilibrium. Indeed when we leave the realm of abstraction and look at the candidates most likely to be President come January 21, it seems hard to take seriously, for the foreseeable future, any path other than triumph-in-failure.
Such a drama would be most helpful to a constitutional restoration if the presidential malfeasance combined contempt for Congress with administrative overreach. To most Americans, administrative threats to the rule of law today seem abstract and distant—matters for corporate managers to worry about, and (therefore) not worth getting too worked up about. If they even notice them at all, that is. But a historical drama in which a cabinet secretary or agency head turned some powerful piece of the bureaucracy toward clearly abusive ends, hurting sympathetic victims, and in a way that could be traced back directly to the will of the President—well, that would catch just about every political observer’s attention.
But before turning to restoration-by-scandal scenarios, let me first say a word about the administrative overreach that White’s prescriptions are meant to address. He offers substantive critiques focused on particular decisions from the Obama administration, and (generally) implies that the 44th President’s actions represent a decisive turn away from the rule of law. That line of argument is surely familiar to Law and Liberty’s readers.
For my part, this view looks significantly incomplete, and probably misleading. If some variable has been trending ever upward over many decades, it will always be the case that the most recent period registers the highest levels yet seen. But ascribing an important causal effect to particular characteristics of the latest period will almost certainly be wrong. This is how the rise of executive-centered discretion seems to me. The Obama administration has reached unprecedented heights, but this isn’t because of something deep in Barack Obama’s or Rahm Emanuel’s ideology or worldview or soul; it is because this is what Presidents have done in recent American history.
When we consider the forces shaping the modern presidency, this shouldn’t be a mystery. On the campaign trail, voters do not want to hear about the constraints faced by the lonely occupant of the Oval Office, they want to hear promises of near-messianic transformation that the new leader will effect through sheer force of will. The President’s copartisans in the legislature have, in recent years, wanted less in the way of deference to their branch’s coequal status and more in the way of an energetic team captain capable of smiting the enemy. And posterity, for its part, tends to lionize those “who preserved or augmented the authority of the office” (as Greg Weiner recently wrote on this site). The strategy of self-limiting in the name of the rule of law is not, as the game theorists would say, “incentive compatible” for a contemporary President.
There is something a bit quixotic in hoping against hope that the inhabitants of the office will be able to resist these pressures, charting their own course on behalf of deeply held constitutional principle. I don’t doubt that if we made Adam White the President of the United States, he would do so, but then our contemporary candidate-filtering process manifestly selects for someone with very different qualities (if they can be called that). Such politicians as can run this gauntlet and win our nation’s highest office, confronting White’s central question of “how executive power can be employed toward the proper ends, with proper checks and balances,” will find remarkable expanses of authority within the realm of the proper. And they will have good lawyers assuring them that they’re right. Ideas about “proper checks and balances” will be calibrated according to the political needs of the moment.
We need not keep this discussion in the realm of the abstract. We have had two 21st century Presidents. They have both been described, with some justice, as having scaled outrageous peaks in the annals of presidential unilateralism.
Some conservatives remember George W. Bush’s presidency as aggressive about executive power only in the realm of foreign policy—and it certainly was that, driven not only by post-9/11 exigencies but by a deeply held conviction that the President ought to be both supreme and insulated on matters concerning national security. But it bears remembering that there were also plenty of ways in which the Bush administration made executive unilateralism a theme of domestic policymaking: in the aggressive use of signing statements; in the creation of the Office of Faith Based initiatives; in the EPA’s turn to emissions trading markets in its Clean Air Interstate Rule after the administration failed to move its Clear Skies Act through Congress (which rule was eventually rebuffed by the D.C. Circuit). And then, of course, there was the series of actions orchestrated by Treasury Secretary Hank Paulson, responding to the developing financial crisis in late 2007, and these were hardly a portrait of solicitude for the rule of law.
Against that backdrop, candidate Obama preached a gospel of cooperation with Congress. Once in office, however, he found that what he meant was cooperation with a Democratic Congress. After the Republicans took control of the House of Representatives in 2010, he found himself in perpetual conflict with that chamber. Wherever you think the blame lies for the lack of constructiveness in this relationship, it’s very easy to see why an administration convinced of the righteousness of its own ends would view circumventing Congress as defensible in such a situation—as the only way to honor the pressing needs of the American people. And so it did.
Between these two administrations, we have seen two dominant dynamics between the Presidents and their counterparts down Pennsylvania Avenue: cooperation in which Congress takes the role of subordinate copartisan handmaiden, and hostile cross-partisan conflict. The prospects for a new dynamic in 2017 do not look promising: neither Hillary Clinton nor Donald Trump is known as a crusader for the rule of law, to say the least. And so reforms on its behalf, generated from the inside, with an elected leader following a mandate to prioritize constitutional values, look all but fantastic at present.
That leaves us (with fervent apologies to Samuel Beckett) “waiting for –Gate. Doh!” That is to say, hoping that the President will become an unwitting agent of the rule of law and a rebalancing of constitutional power by playing the role of scapegoat rather than savior. Undoubtedly there is something more than a little distasteful about nursing such a perverse hope, but unlike White’s more optimistic “waiting for Coolidge” version, the likelihood of a rancorous institutional implosion of the “–gate”-suffixed sort seems high. So high that it’s worth looking frankly at the productive role that such disharmony could play in our system of contested, separated powers.
The three epic clashes between the President and Congress in our history are the impeachment of Andrew Johnson, the near-impeachment of Richard Nixon during the Watergate scandal, and the impeachment of Bill Clinton. Let us briefly examine each in its constitutional dimensions.
The Johnson impeachment, which took place in February 1868, was the culmination of a years-long clash between Radical Republicans in Congress and the Tennessean Democrat who was made President by an assassin’s bullet. Radical senators and representatives bridled at Johnson’s manipulation of patronage appointments to try to build up his own independent base of political power around the 1866 midterms. They had sought to impeach him several times, in fact, and found their moment when he removed the Secretary of War, Edwin Stanton, thereby apparently running afoul of the Tenure Act of 1867.
One of the notable things about the Johnson impeachment is that questions of moral turpitude and criminality hardly entered in (albeit his political enemies did allege that he was an alcoholic). Primarily it was a political battle between federal officeholders concerning how each branch could legally wield federal power. Although Johnson was not convicted, his impeachment had lasting consequences. As Keith Whittington describes it, the impeachment “served as a focal point for a series of [constitutional] constructions that redefined the nature of the presidency in the division of powers and ushered in the era of congressional government.” To follow the Johnson impeachment template, then, one needs a Congress determined to realize a particular vision of a Chief Executive subordinate to Congress-made law.
The next example comes a century later, and in this case, Richard Nixon’s determination to use the institutional resources of the presidency toward furthering his own political fortunes did result in criminality by his subordinates during his 1972 reelection effort. Even so, the fight between Congress and the President grew out of a sustained clash of visions over who should wield federal power. On questions of budgeting and spending, war powers, and executive intelligence-gathering, the Democrat-controlled Congress was sharply at loggerheads with the secretive Nixon administration. The march toward impeachment in 1973-1974 facilitated congressional reform efforts on each of these important substantive matters. While this was somewhat obscured by the drama surrounding the misdeeds of Nixon and company, it is the clearest example of congressional assertion of legislative primacy in modern American political history.
Contrast this with the impeachment of Bill Clinton by congressional Republicans in 1998, which played out as a kind of farcical echo of Watergate. As one Washington Post commentator put it, impeachment had been “reduced from its former spine-tingling grandeur to a level of cheeseball banality.” The majority of the American public believed the President’s congressional opponents had worked hard to gin up a cause of impeachment against Clinton, and Republicans did not manage to organize their complaints against him around any substantive institutional critique. Whittington again: “The constitutional discourse surrounding the impeachment was surprisingly thin, and analysis of the impeachment generally emphasized the familiar script of partisan politics and political handicapping.” Nearly two decades removed from this episode, it is hard to characterize it as having had important constitutional effects either in terms of disciplining the President or elevating Congress.
The lesson we might take from these three episodes is that, if they are to be formative for our constitutional order, Congress must bring to bear its own affirmative vision of how the federal state should operate, not just seize on particular “crimes and misdemeanors” to try to secure a conviction in the Senate. Should they adopt that approach, impeachment is likely to be a potent weapon against an out-of-control presidency. Indeed, as Law and Liberty’s Michael Greve recently pointed out, impeachment today looks to be one of the sharpest arrows remaining in the congressional quiver, making it overwhelmingly likely that it will play a role in our next President’s administration (whether for the President her/himself or for a subordinate official).
Especially if Hillary Clinton becomes President, she will understand this hazard quite clearly. Following Adam White’s eighth suggestion, to “Put Ethics First,” she would be likely to emulate the Obama administration by empowering an “Ethics Czar” as a prophylactic against impeachable stumbles, which proved remarkably effective for Obama. But we might wonder whether her deep-seated suspicion of congressional Republicans might lead her to cross some important line, either seeking to insulate her administration from legitimate congressional scrutiny or even using the tools of the federal bureaucracy to disadvantage her political opponents. If that came to pass, it could well enliven her Republican adversaries’ sense of their own constitutional prerogatives.
With the swearing in of a President Trump, the effects on our familiar political lines of contestation are as unpredictable as he is. At a minimum, we could see some portion of congressional Republicans finding themselves effectively in opposition to an ideologically unmoored President attempting to use the tools of his office to build a durable and independent power base (a la Zachary Taylor circa 1849). Given all that we do know about Trump, it is hard to imagine that he would be terribly scrupulous about avoiding legal missteps, and so once again a full-blown impeachment clash between Congress and the President could potentially be a venue for constitutional contestation. (For a brief rendering of a hypothetical conflict such as this, see my second scenario here.)
With either a Clinton or a Trump presidency, it would fall to congressional leaders to define the conflict in such a way as to implicate important constitutional values; otherwise, there is the specter of debilitating conflict with little potential payoff. The greatest benefit of this path is clear: it would be a way for constitutionally sophisticated elites to reinject a healthy respect for the rule of law into our politics without waiting for the people to experience an independent revelation about the importance of the same. I am not sure we have a critical mass of political elites ready to champion such a constitutional construction, but perhaps a sufficiently juicy scandal could get them there.
If I have picked on Adam White for engaging in some wishful thinking, here is the place to admit that all of the foregoing musings are open to the same criticism. It remains more likely that the dysfunctions of the unbounded executive government will take even deeper root than that they will be extirpated, either by virtuous leadership or in the aftermath of a political crisis. At least White’s exercise in political imagination puts us in a happy mindset of piecemeal constitutional reform, whereas mine invites the unsavory mindset of cheering for the failure of a presidency. But these are difficult times for constitutional government, and it is worth considering all of the ways in which we might seek out happier ones, however fraught they may be.
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