Friday Review: Whither the Imperial Presidency?

We’ve been hearing a lot of talk recently about the revival of the imperial presidency. Most recently, last Sunday’s New York Times published a highly critical editorial called “The imperial presidency at work,” lambasting Bush for what it saw as an attempt to manipulate the fear of terrorism to claim illegitimate executive power. “Mr. Bush,” the editorial admonished, “sees no limit to his imperial presidency,” (for some less recent examples of this kind of invocation of the imperial presidency, see here, here, here). Since this blog has (critically) used the term occasionally, in this Friday review we’d like to probe more deeply into the meaning of this phrase, and clarify our position on it. What is meant when Bush is described as an imperial president and how much critical insight does the term offer?

Although already in use in the late 1960’s, the term gained great prominence with the 1973 publication of The Imperial Presidency by the eminent liberal historian Arthur Schlesinger Jr. Written in the midst of the Watergate scandal and the last year of the Vietnam War, Schlesinger saw the growth of presidential power as, in his words, "the shift in the constitutional balance – with, that is, the appropriation by the Presidency, and particularly by the contemporary Presidency, of powers reserved by the Constitution and by long historical practice to Congress." The metaphor imperial means that presidential power grows by colonizing or absorbing powers that were reserved to the other branches. It’s a metaphor
about the abrogation of the separation of powers.

But it’s not just any metaphor. Imperial also retains the sense of the term’s most immediate meaning: direct political rule over extensive colonies or territories. Of course, this is not to say
that the Times actually meant that Bush ruled over an empire. The editors made clear that they were objecting to Bush’s disrespect of the other branches. But the term draws it rhetorical force from the illegitimacy associated with imperial rule, and it’s no accident
that we have seen a revival of the term following the Iraq war. Calling Bush an imperial president confers a sense of the arrogance and pompousness of empire, without having to concretely analyze the nature of the Iraq occupation and its relation to historical
examples of political rule. Substituting metaphorical evocation for straightforward argument, the imperial presidency invokes an aura of illegitimacy that ultimately has little analytical or polemical force.

The ultimately vacuous nature of the concept is evident in the kind of solutions that are frequently proposed as a cure for the imperial presidency. Schlesinger, for his part, somewhat lamely calls for “a new attitude on the part of the American people toward their Presidents…specifically, a decline in reverence.” After considering and rejecting such institutional proposals as plural executives, Schlesinger’s own conclusion is that the nation required both a strong Presidency for leadership and the separation of powers for liberty… a constitutional Presidency, as great Presidents have shown, could be a very strong Presidency
indeed. But what kept a strong President constitutional, in addition to checks and balances incorporated within his own breast, was the vigilance of the nation.

What’s interesting about this is that Schlesinger himself had already shown precisely the opposite: that “great” presidents are those that have significantly enlarged the presidency, expanded its prerogatives, undermined congressional powers, and pushed their
authority to the brink of constitutional limits. For instance, Schlesinger, an establishment Democrat and former member of the Kennedy administration, clearly admires Lincoln, FDR, and Kennedy. But all three of these men dramatically expanded presidential power, as Schlesinger somewhat uncomfortably admits. In each case, however, Schlesinger points to the virtues their personality, and individual restraint, which presumably qualify them as “great” in spite of their contributions to the very accretion of power Schlesinger is denouncing. Whether one accepts Schlesinger’s evaluation of presidential personality, the idea of relying on “checks and balances incorporated in his own breast” is completely
spurious. Schlesinger’s overvaluation of presidential personality obscures a deeper contradiction: he frames his argument about the growth of presidential power as such, but he is really only objecting to the abuse of presidential power for what he regards as
illegitimate ends.

Peter Irons, in his recently published War Powers: How the Imperial Presidency Hijacked the Constitution, suffers from the same lack of political imagination. After a blistering indictment of the Bush’s imperial presidency, Irons rather meekly suggests that “the iron grip of the president on every aspect of foreign policy will loosen only when Congress reasserts its constitutional powers” of war-making. But given the eagerness of Congress to delegate its
authority and pass blank-check authorizations, it is hard to imagine a return of congressional war power as a solution. Furthermore, this solution rests on Irons’ questionable idea that
the president is the sole vehicle for economic corporations bent on gaining imperial markets. But why should Congress be any better? Irons spends three chapters denouncing the Bush administration’s wars in Afghanistan and Iraq and domestic emergency powers. But
these cases do not support Irons’ argument: Bush was given explicit authorization for both wars by Congress. Congress passed the PATRIOT ACT in overwhelming numbers, denied court hearings to anyone declared to be an “unlawful enemy combatant,” and will most likely
re-pass the PATRIOT ACT without major changes. Even in the recent hubbub over secret domestic wiretapping, the Bush administration is claiming that congress authorized that too, in an extremely broad 2001 statute authorizing the president to use military force against anyone he determines to be related to terrorist attacks.

The weakness of both Schlesinger’s and Irons’ proposed solutions point to a second problem with the concept of the imperial presidency itself, even taken as a polemical device: its political implications tend to be excessively formalistic. For example, Peter Irons argues strongly that what is needed is for Congress to take back the war making power. But since it was Congress itself that helped create such a strong presidency in the first place by delegating its powers, it is unclear how this presents much of an alternative in terms of policy. Likewise, Schlesinger lapses into vagueness when he tries to explain why the strong presidency is fine for Roosevelt and Kennedy, but unacceptable for Nixon. The concept of the imperial presidency, grounded on formalism and with a rhetorical bite that relies on metaphor, simply doesn’t offer enough insight to clearly articulate what’s wrong with the growth of presidential war powers, and what should be done about it.

Although they value it differently, Schlesinger, and Irons both describe a very strong presidency acting alone in wartime or national emergencies. But both these authors ignore the internal political dynamics that drive the presidential invocation of emergencies and war. For instance, historically powerful presidents such as Lincoln and Franklin Roosevelt used extra-legal emergency powers to radically transform the structure of the American state,
and its relations with society. They are much better understood as future oriented, reconstructive figures representing genuine forces in society, rather than conservative “constitutional dictators” trying to overcome an emergency to restore the status quo.

But how to understand the current Bush presidency from this perspective? The Bush administration has certainly been remarkably bold and audacious in its claims of presidential authority and its use of emergency powers. But Bush is neither a reconstructive president, bursting through constitutional bounds with great electoral majorities, nor a Schlesingerian imperial president kept aloft by Cold War international engagements. Schlesinger’s imperial
presidency, which stretched from Roosevelt until Nixon, represented a real growth in presidential power. But this Cold War presidency was already in total disarray in the Clinton administration, and reached its lowest ebb in the disastrous 2000 election amidst the
Florida scandal and the loss of the popular vote. Especially following the Jeffords defection in the Senate, Bush faced the prospect of legislative gridlock, and the further weakening of the
presidency cycle.

Of course, September 11th changed that by injecting Bush’s presidency with a sense of crisis and plebiscitary energy. During this period, Bush was able to superficially invoke the crisis
administrations of Franklin Roosevelt or even Lincoln. But the resemblance was completely surface level. Without a substantive reconstructive program for the transformation of the state, Bush’s plebiscitary appeal was based solely on fear of a perceived terrorist threat, and the administration’s ability to overcome the perceived crisis. There was no transformative or even substantial political project underneath it. The pathological flipside of this situation, however, is that the actual overcoming of the crisis reduces the president’s authority. Once the emergency is over, the basis of Bush’s plebiscitary appeal is extinguished as well. Hence
the curious nature of many of the emergency related acts of the Bush administration, which might be described as ‘fear management’ in the intentional sense of the term: color coded warnings with no imaginable benefit to public safety, holding individuals as enemy combatants only to release them without changes or transfer them to ordinary courts, vast immigration dragnets that wield few or no convictions, a network of secret prisons, many of which lie empty, and the perplexing indifference to the distribution of emergency preparedness funds. What all these have in common is that they are less about overcoming some imminent threat to the state than creating the appearance of vigorous and urgently required action.

But it is precisely this dynamic which is eluded by the concept of the imperial presidency. Our liberty today is not threatened by a genuine menace to the state, nor by a plebiscitary president claiming to represent the popular will. The problem is when politically weak presidents require fear and emergency powers in order to govern. We need concepts to understand and criticize this trend, but the imperial presidency takes us in the wrong direction.