Recent weeks have seen angry charges leveled at both Donald Trump and Hillary Clinton. Key among these have been claims against both candidates that they are unworthy of the people’s trust. The implication is that each would be liable to abuse the powers of the presidency. Some might find in such charges a sad lack of civility. Indeed, Mr. Trump, at least, has had exactly this charge leveled at him for questioning Mrs. Clinton’s commitment to constitutional government and the rule of law. I intend to defend neither Mr. Trump nor the idea that such charges are uncivil. Rather, it seems to me that it is long past time for Americans to begin asking whether candidates for the highest office under the United States Constitution will, in fact, faithfully execute laws made according to the procedures and within the enumerated powers of that document.
In other words, it is long past time for Americans to start worrying about presidential power.
For most of the Obama Presidency, critics on the right have noted the current president’s contempt for constitutional restrictions on his power. This president has announced a variety of executive orders that violate the Constitution because they have the force of law, but were not passed by both houses of Congress and therefore, constitutionally speaking, are not law. Most prominent was Mr. Obama’s executive order declaring that duly enacted immigration laws shall be ignored. In addition, this president has paid money to the Iranian regime in violation of legal restrictions on such funds transfers. And he has overseen a series of administrative power grabs by the Department of Education (regarding sexual discrimination in schools) the Justice Department (taking over various local police agencies) and the EPA—all under the guise of “interpretations” of regulations passed according to statutes.
Almost as a matter of course, this president has acted literally outside the law. Sadly, Mr. Obama has merely accelerated a trend begun decades ago, and rendered endemic, especially under President Bill Clinton. Mr. Clinton actually established a new federal agency (the National Nuclear Security Administration) on the basis of a mere signing statement. That is, he signed a bill into law and said in the (usually pro-forma) statement accompanying his signature that, in order to implement it, he was ordering the formation of a new public agency. Mr. Clinton’s successor, George W. Bush, was no better. “Bush II” made a policy of signing bills into law, then issuing statements that declared his intention to enforce only portions of them, or only in accordance with highly self-serving interpretations of his discretionary power in re-defining their purposes and appropriate goals.
Bush II’s use of signing statements was especially lacking in courage and forthrightness. Then again, as a Republican he had more reason than the other Presidents mentioned here to avoid overt conflict with the legislature and especially the media over his views on public policy and foreign policy in particular. There had been a time, after all, when the press and academia showed great concern over the expansion of executive power. Arthur M. Schlesinger, Jr. penned a highly influential book on The Imperial Presidency as an overt attack on President Richard Nixon. It would be wrong to defend Nixon against the charge that he misused and expanded federal powers. But it would be equally wrong to single him out as an extreme example of presidential overreaching. The single most important factor determining the press’ attitude toward executive power has been the partisan affiliation of the president being scrutinized. Proof? Consider what happened to Nixon when evidence surfaced that he acted in a manner obstructing investigation into the break-in by low-level staffers into the Watergate hotel, and what happened to Mr. Clinton when it became undeniable that he had committed perjury in attempting to cover up his sexual misconduct. Verbiage concerning the underlying conduct being covered up is meaningless; in both instances, presidents placed themselves above and intentionally interfered with the due process of law. But one president was hounded from office—and at least had the decency to resign. The other hurled abuse at his accusers and, with the help of media disparagement of the charges, held onto office.
The problem of executive power has roots deeper than Mr. Clinton’s contempt. The massive programs of federal expansion undertaken by Presidents Wilson, Roosevelt (I and II) and Johnson all required executive actions beyond the limited confines provided for in our Constitution. In overcoming these limitations, these executives relied on a coterie of apologists, most especially in the press and the academy, demanding that the “deadlock of democracy” be broken through executive action. From here grew the myth of the “Great President.” A myth that haunts us to this day.
Great Presidents, we are told, are those who break the mold, those who institutionalize new ideas and projects, who transcend the limitations of their own day and so transform the office of the presidency. They are the Wilsons and Roosevelts. They never could be the Coolidges or Clevelands, who sought to operate within the confines of their constitutional mandate, to defend the people against an overreaching federal government, and to promote the American spirit by keeping attention on the proper making of proper, limited laws so that the people might continue leading lives of virtuous self-government in their own families, churches, and local associations.
Our Constitution was written for a free and virtuous people living their own lives within their own communities. Experience has shown that when we demand that the federal government assume responsibility for our well-being, it will undermine the associations that actually make decent lives possible. Moreover, that central government will be incapable of ruling within the confines of our Constitution. In particular, Congress, the branch entrusted with the lawmaking power, will hand over its proper authority to the other branches, undermining the rule of law.
This electoral season gives scant reason to hope for re-establishing a genuine rule of law. But it is important to note that we have slid this far into a regime ruled by decree through decades of misunderstanding and constitutional corruption. At root, the problem is that we demand too much from our central government and too little from ourselves, as individual persons and as members of more local, fundamental associations. An all-encompassing government must rule by discretion, leaving the people to plea-bargain with it, to seek waivers from its laws, and in general to become supplicants before its power.
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