Swollen with power (2/19/2012)

The historic American debate on the nature and scope of executive authority, punctuated and dramatized by the renowned 18th century exchange between James Madison and Alexander Hamilton, and spiked in our time by sweeping assertions of unilateral presidential power in foreign affairs and war making, and by claims of prerogative powers, privilege, secrecy and immunity in domestic matters, is worthy of renewed consideration as the nation celebrates Presidents’ Day tomorrow.

The changing nature of the nation’s high office across a vista of two centuries, from Chief Clerk to Imperial Presidency, recalls John Adams’ sage advice. “A frequent recurrence to the fundamental principles of the constitution,” the second U.S. president wrote, is “absolutely necessary to preserve the advantages of liberty and to maintain a free government.”

The framers of the Constitution, whose fear of a powerful executive was grounded in their own experience and reading of history, sharply limited presidential power and rejected monarchical prerogatives as ill-suited to the republican enterprise on which they had embarked.

For the past half century, however, the presidency has ridden the horse of power and trampled Congress — and the Constitution — underfoot. This is not a partisan issue, for presidents of both parties, Republicans and Democrats, conservatives and liberals alike, have asserted expansive conceptions of executive power that race beyond constitutional boundaries. The fact that presidents have frequently defied the metes and bounds of American constitutional law raises a question of great moment for a nation committed to the rule of law, and invites Chief Justice John Marshall’s rejoinder in the landmark case of Marbury v. Madison (1803): “To what purposes are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained.”

Executive transgressions have become routine since the 9/11 outrage. Indeed, no feature of recent governmental practice has more vexed, betrayed and disfigured the Constitution than presidential aggrandizement of war and foreign affairs authority. The Imperial Presidency took flight under the administrations of Lyndon Johnson and Richard Nixon, and it remains in full flight under the pilotage of Barack Obama. It never was grounded, even though it flew at a somewhat lower altitude under Gerald Ford and Jimmy Carter. The concentration of power in the executive is pregnant with menace: It has reduced the trumpet sound of the rule of law to tinkling crystal, laid waste to the separation of powers and checks and balances, and reduced Congress to the role of spectator. As the historian Charles McIlwain wrote, “The two fundamental correlative elements of constitutionalism for which all lovers of liberty must yet fight are the legal limits to arbitrary power and a complete responsibility of government to the governed.”