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A “Hands-Tied Presidency”? Refer to the syllabus…

- September 8, 2013

A piece in the Sunday review section of the New York Times, “The Hands-Tied Presidency,”  argues that President Obama has discovered “he holds office at a time when the presidency itself has ceded much of its power and authority to Congress.”

Well… if received in my presidency course this thesis might receive the following kinds of comments:

(1) The idea that presidents have “ceded” power and authority to Congress? Surely most of it was Congress’s to begin with. Especially since the examples given in the paper — Newt Gingrich’s House, George W. Bush’s failure to win passage of his proposals for immigration or Social Security reform — are examples of legislators making legislative choices. Congress is, um, the legislative branch. It certainly is under no obligation to enact presidential requests into law. Indeed, it has a variety of powers even in national security areas.

The reading for the first day of class was the Constitution. Congress is Article I, and should be: its powers, when it chooses to use them, are immense. It was the framers’ first preoccupation. In Federalist 48 James Madison warned: “Where the legislative power is exercised by an assembly…it is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions.” Thus, Congress was split into two chambers; and thus, in fact, was the rationale for a single executive in the first place, the better to have the strength to resist what Madison called the “impetuous vortex” of legislative power. Even so most presidential powers rely on Congress for activation, not the other way around.

(2) So, was there some other time, some era when things were different? FDR, LBJ, Reagan and others – in fact, ALL the others – had plenty of problems with Congress. Richard Neustadt’s famous book on Presidential Power in 1960 stressed the shared powers that constrained presidential action. The work of George Edwards III, highlighted in Dan Balz’s essay in the Washington Post today, has long stressed the limits of presidential rhetorical and congressional influence – and stresses again that even the presidents we think of as most powerful in this regard were heavily constrained by the parties and preferences they faced at the other end of Pennsylvania Avenue. Michael Genovese’s Memo to a New President puts it this way: “There is no way to convey to you at this point the utter frustration and anger to which the Congress will drive you.”

(3) There are times presidents get what they want. Now might not be one of them. But this doesn’t mean the office is weaker, necessarily, just that conditions for gaining presidential preferences are unfavorable. The broader secular trend with regard to institutional power goes the other way: in fits and starts, the presidential office has grown far beyond the “presider” implied by its name to the “decider” status claimed by George W. Bush (more readings: here, here, here).

Much of that has to do with the 20th century growth of government and the enhanced administrative powers connected thereto, a series of wars (hot, cold, and secret) and the related tendency by Congress to delegate authority to the executive branch (again, not the other way around.) Bill Clinton, after the Gingrich ascension noted here, said that “I think now we have a better balance of… using… the President’s power of the Presidency to do things, actually accomplish things, and . . . not permitting the presidency to be defined only by relations with the Congress.” His aide Elena Kagan later developed a long how-to manual on just how to “do things” via “presidential administration.”  Public administration scholar (and practitioner) Richard Nathan wrote a book about the Nixon-era efforts to establish an administrative presidency and called it “the plot that failed” – a current version might have to conclude the plot succeeded.

If so, the burden of this paper is to counter that history. In which case the argument requires rather more: at the least, I think, examples of Congress controlling these (real or claimed) executive powers, rather than exercising legislative or clearly shared powers. Say, the implementation of policy – the development of regulation – the overturning of signing statements – of actually invoking the War Powers Resolution without asking the president to do it for them. (Frankly, as I have argued in previous posts (here, and here), I wish they would do more of it.  (Some examples of legislators actually doing their most crucial job – passing a budget every year – would be nice, too, but I realize recent examples of that are hard to come by.))

A quick addendum: (4) Bonus points for noting Woodrow Wilson’s efforts to “correct” the framers’ mechanics via what Jeffrey Tulis calls a “second constitution” (Wilson thought the idea of checks and balances too mechanistic, whereas governance was organic.) But points off for not actually citing Prof. Tulis’s argument.

Anyway, Wilson’s idea that “congressional government” was a problem (as correctly noted here, not everyone agrees; see also Charles Kesler’s spirited take) was consonant with ideas of scientific management which held sway in public administration well into the New Deal. But this did not actually change the constitutional structure, noted above. As the paper notes, sort of. Thus undercutting its own thesis?