The Concept Of The Imperial Presidency

It was historian Arthur M. Schlesinger who popularised the term ‘imperial presidency to describe the evolution of the ‘modern day president’. Schlesinger contended that expansion and abuses of the presidential office were so profound by 1972, they had thwarted the traditional checks and balances of the constitutional system. He concluded the imperial presidency emerged due to the aggregation of presidential ‘war powers’ that were primarily acquired in response to America’s participation in twentieth century wars. Schlesinger connected the presidencys usurpation of foreign policy to the accumulation of domestic powers, stressing that the war powers and executive secrecy were two significant devices which gave rise to the misuse of power by presidents. [4] He also reflected a growing belief that the evolution of the presidency had permanently transformed the balance of power; resulting in an extremely powerful president and a resident Congress in the decision-making arena. [5] 

Until recently, many commentators widely regarded that the Nixon administration represented the true singular embodiment of the imperial presidency. [6] More than three decades later, the notions of the imperial presidency has once again resurfaced. Many scholars, including Schlesinger himself, observe that the imperial presidency has been revived under the Bush administration, [7] and given further vigour under the leadership of President Obama. [8] But how authentic is this approach in understanding presidential power in decision-making today? How much utility is there in Schlesinger’s concept of an imperial presidency? Is it the case as Schlesinger suggests, the modern day president is out of control, operating beyond the constitutional parameters and in clear defiance of the doctrine of ‘separation of powers’.

THE IMPERIAL PRESIDENCY REBORN

The starting point of this paper is recognition of Schlesinger’s imperial presidency, and that it was restored to former prominence under the presidency of George W. Bush. However, this paper makes a distinction between the usurpation of power and the abuse of power. [9] Unlike presidents who temporarily assumed power in times of war, we argue like Nixon, Bush abused power by “claiming a near absolution of power to be the enduring prerogative of the presidency.” [10] Presidents such as Lincoln, FDR, and Truman, it is argued, momentarily usurped power anticipating Congress would hold them to account after the wartime emergency ended. [11] It is in this distinction that we argue makes the presidency of George W. Bush an imperial presidency. By actively trying to keep a monopoly of constitutional power, it continuously relied on powers beyond those vested in the executive by the Constitution, and often unilaterally of Congress.

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THE NEW IMPERIAL PRESIDENCY

“The imperial presidency of George W. Bush was constructed and enforced by Vice-President Cheney and his chief legal advisor Addington, given legal veneer by Deputy Assistant Attorney General Yoo, endorsed by White House Counsel and later Attorney General Gonzales.” [12] 

This paper also makes a distinction between the imperial presidency under Nixon and the imperial presidency under Bush. A drawback of Schlesinger’s approach is that his theory emphasises the abuse of power by the individual in the office, the president. Qualifying his theory, we argue that it was not an imperial presidency but an ‘imperial vice-presidency’. There is insurmountable amount of evidence suggesting Vice-President Dick Cheney was the “chief architect” [13] “behind the concept of broad-based, unreviewable, and secret presidential powers” [14] that gave further projection to the ‘unitary executive legal theories’. [15] These legal theories, advocated by Cheney, [16] were depended upon frequently and in various contexts by the Bush administration to justify their assault on individual liberties and other intrusions of the American constitution. [17] 

However, it is clear from the opening sentence of Article II, the Constitution vests the entire executive power in the president and not the vice-president; [18] a point illustrated by President Truman’s Oval Office desk plate, which read, ‘the buck stops here’. [19] Reflecting this point, Clinton Rossiter described the presidency as a “one man job…who…can never escape making the final decisions in which the public and Constitution hold him responsible.” [20] To make sense of Bush’s presidency, this paper argues that the Bush administration was a victim of what Janis termed ‘Groupthink’. [21] Applying Janis’s hypothesis, an example of the influence of groupthink can be found in the Bush administration’s decision to pursue an invasion of Iraq. [22] According to former Pentagon analyst Karen Kwiatwoski, there was a groupthink style of environment throughout the executive hierarchy, which blindly sought for the agreement to invade Bagdad. [23] Theses neoconservative executives formed a ‘royal court’ around Bush, and by controlling the type and supply of information they were able to shape and influence his knowledge, to such an extent, it could be argued they were making presidential decisions on behalf of the president. Bush was simply a string-puppet, who was directed ironically by the men whom he led. For example, in a press conference in 2002, President Bush was asked what he was doing to capture Osama Bin Laden, an individual in his conviction to be the America’s most notorious enemy. Bush responded, “You know, I just don’t spend much time on him.” [24] This perhaps explains why President Bush and Congress rushed into war before a broad-based coalition of allies could be formed. In this sense, Congress and the American public also became victims of groupthink, as they too were persuaded by highly misleading information. Therefore, it was not just an imperial vice-presidency but an ‘imperial executive presidency’, where power was being abused by a number of executive individuals. [25] 

REINING IN THE EXECUTIVE

Schlesinger’s approach in understanding the charges of a too powerful president is useful. Although, it’s utility of the ‘great man perspective’ is restrictive and misleading at the same time when trying to understand the true nature and power of the presidency in the decision-making process. Despite operating under similar conditions, it is arguable that the current Obama administration no longer enjoys the vast amount of executive power, which was expanded and abused under the Bush administration.

A similar argument can be drawn when analyzing Bush’s two-term presidency. As the presidency entered into its final bout, with the political, media and public attention transferring to the presidential candidates, the Bush presidency became somewhat ‘lame duck’, [26] whose authority and influence had been curtailed extensively. Therefore, a distinction can be made between Bush’s first and second term. It is evident that in his first term, the Bush administration acquired a vast amount of executive authority, which allowed them to dictate American foreign policy. However, this is not a new phenomenon. Wildavsky’s ‘Two Presidency’ theory suggests that the president wears two hats, enjoying more freedom in foreign affairs. [27] Qualifying his theory, we argue that the Bush administration’s ability to act unilaterally in this domain had a ‘spill-over effect’, which soon began to pervade and embolden the domestic presidency as well. This gave rise to Schlesinger’s ‘revolutionary presidency’; [28] the Bush administration was able to change the dynamics of American democracy by creating a ‘plebiscitary presidency’ [29] where they were only accountable during elections (ironically strengthening his presidency as he was re-elected). Moreover, by overriding the constitutional provisions of checks and balances the Bush administration became the dominate branch in the decision-making process of the American political system. However, it is arguable that towards the end of his second term the Bush administration was far more restricted and constrained, especially in relation to its domestic policy ambitions with a more assertive Congress playing a more dominant role in the decision-making process. [30] Even though the presidency continuously and arrogantly acted unilaterally from Congress, its scope to do so especially in the domestic arena had been heavily curtailed.

We contend that the expansion of the presidency to a certain degree has been ‘reined-in’, going some way to restoring the balance of power between the president and Congress.

ALTERNATIVE APPROACHES AND THE CONCEPT OF PRESIDENTIAL POWER

The utility of the historical and legal approach helps us make sense of the current change in dynamics of the presidency and sheds light on how the Bush administration was able to act unilaterally in the decision-making process. This approach suggests that the aggregation of presidential power has not occurred continuously, and neither is the modern day presidency a source of permanent power that has nullified the Constitution as suggested by Schlesinger. This is because presidential power is not an attribute but a relation. The constitutional and historical legitimacy of the presidency may put any president in a privileged position in the decision-making process, but the magnitude of his power is variable as much of it exists in relation to his influence over other individuals and institutions. Therefore, we contend that presidential power at the federal level ‘ebbs and flows’: varying from one domain of political activity to another; from one circumstance to another; from one presidency to another; evolving gradually at times and fluctuating abruptly at other times.

A prominent reason for this is because of the deliberate efforts by the Founding Fathers to ‘stagger’ the constitutional powers, installed conflict into the heart of the American polity. [31] The vague wording of the Constitution instigates a natural invitation for struggle between the executive and legislature, [32] in which both institutions push the boundaries to maximize their political power. Consequently, a ‘tug of war’ for influence develops between the presidency and Congress for control of the political agenda, which is more prevalent when Congress is divided, or in times of uncertainty.

The historical approach does seem to suggest that a pattern exists: repeated assumptions of power in the decision-making process are followed each time by a chorus of criticism, which in return is followed by stricter congressional oversight towards presidency. [33] Similarly, scholarly judgments tend to reflect this cycle, although it is arguable, that these observations are somewhat exaggerated and do only reflect that period of time. For example the notions of an imperial presidency were embedded due to the fierce opposition of the Nixon presidency. Likewise, the reflections of an ‘imperiled presidency’ post-Watergate were an overstated reaction to the perceived limited presidential activity in the decision-making process by Carter and Ford. [34] However, it is plausible based on the history of the American polity that the option is either executive supremacy or congressional supremacy. On the other hand, the concept of power suggests this does not necessarily mean that it has to be one or the other. As aforementioned above, power only exists in relation to influence, but influence is not a game of fixed sums, where one gains the other looses in the decision-making process. Similarly, the influence of both institutions is in a constant flux, forever changing in different circumstances. Therefore, it is pointless to make judgments which institution has more power at any given moment as evidence is murky.

AGENDA-STRUCTURING POWERS

According to C. Wright Mills, a president has more scope of influence in relation to Congress in resolving issues then introducing new issues on the political agenda. Other commentators like James Bryce make a similar distinction by arguing:

“In quiet times the power of the president is not great; yet in troublesome times it is otherwise, for immense responsibility is thrown on one who is both commander-in-chief and head of the civil executive.” [35] 

An explanation for these phenomena can be found in the executive’s function to respond to unforeseen circumstances more responsively than the deliberative decision-making body of Congress. Thomas E. Cornin contends, when such events occur, the presidency is in the driving seat, especially in relation to foreign affairs. The presidency enjoys the prerogative in determining what constitutes a crisis, [36] and can exploit its privileged position to structure new developments to their accord. This is not to say Congress lacks the constitutional authority to intervene, rather, it often lacks the will or courage to do so. [37] This is because whenever a president waves the crisis flag or takes a foreign-policy initiative, in most circumstances, he is likely to have the country behind him, including influential business leaders, the media and the majority of the public. [38] 

This explains how the Bush administration was able to implement their visions of an imperial presidency. The unprecedented events of 9/11 infused Wildavsky’s two presidencies into one, presenting the Bush administration a blank canvas whereby they were able to structure the emergency response. More importantly, 9/11 strategically placed them at the forefront of the decision-making process in both domains. However, it is plausible the reason why Congress ‘rubber stamped’ Bush’s 9/11 policies, is because at the time Congress too favored a strong political response and held the commander-in-chief responsible to deliver such a response. In this sense, according to sociological approach of Mills, [39] the Bush administration was not exerting presidential power, but was simply reflecting the will of Congress and the American public. Bush was merely a surf-rider on the waves of international developments. Like Kennedy in the Cuban missile crisis, [40] the Bush administration knew it was important to act on their wishes and was conscious that an unpopular response to 9/11 would result in a backlash politically. Therefore, this approach suggests, due to the natures of emergencies, no matter who happens to be president, every incumbent is compelled to follow a course of action that most Americans and congressmen approve, purely for political opportunism and political survival. In this sense, the presidency shapes the president.

On the other hand, the utility of Barber’s psychological approach suggests presidents also shape presidencies. [41] Although presidential decisions are determined by political and other constraints largely beyond their control, the personality of the incumbent is significant in helping shape presidential decisions. Presidential decisions may be influenced by the ‘climate of expectation’ and ‘power situation’, [42] but because they enjoy the best bully pulpit, presidents actively try to influence the public and educate them through various means into going along with what they want. [43] In the case of the Bush Presidency, the administration successfully manipulated both the public and Congress about the severity of threat Iraq imposed. A fundamental reason why Congress was easily tricked into war was because Congress relied heavily upon the information provided by the White House to inform them about the debate. In the domestic domain, Congress is more of an expert and can rely upon various avenues of information to gain a better understanding. However, in foreign affairs information is more restricted and it is usually the case Congress goes along with the expertise of the executive. As the American media often failed to report accurately on the Middle East wars, focusing on rallying behind the troops, the Bush administration was in the privileged position of educating the public and Congress about America’s successful campaign against the war on terrorism. As there was no official oppositional leader to challenge Bush, his presidency was able to shape American foreign policy unilaterally, thus allowing President Bush to become an imperial president whose actions were undisputed by Congress. It was only until casualties started mounting up, that the public support started wavering. In the absence of public consensus, Congress became more assertive in relation to Bush’s policies, as it became concerned about its lack of involvement in the strategy of the wars that was draining America out of its men and resources. However, by then it was all too late. For the sake of national prestige Congress was committed (as usual) to keep funding the wars which had allowed the presidency to run riot. The irony here is, although, the wars liberated the presidency from the constraints of the domestic environment, it projected the presidency into a more complex and volatile environment with multiply constraints. Once Bush committed the troops, he found it extremely difficult to pull the troops out. This meant they became part of the environmental parameters within which the Obama administration had to operate in. Again, the irony here is, rather than embolden the domestic presidency it has reversed the process and added more constraints on the Obama presidency.

CONCLUSION

Does the United States still have an imperial presidency? The difficulty in the answer lies with the concept. The imperial presidency still means many things to many people. The answer is further complicated as it is hard to distinguish between a strong presidency and imperial presidency. Schlesinger’s concept implies that the imperial presidency exists because of the president’s prerogative in foreign policy which he abuses to extend his other powers. The problem here is, because the Supreme Court rarely passes judgments in relation to presidential abuses in this domain, [44] we are left with political judgments from politicians and scholars that are conflicting, as there is more than one criteria to judge presidential power. It is like Michael Novak observed, “the right worries about the imperial president at home; the left about the imperial president abroad.” [45] This is evident for the Obama presidency. As he has implemented an extraordinary amount of legislation and continued executive secrecy, some commentators contend that he has extended Bush’s legacy. [46] They see his ambitious economic and social policies as unconstitutional. As aforementioned above, the modern day president is compelled for the sake of American prosperity to pursue certain kinds of economic and social policies. Just because the Obama presidency has been successful, it does not mean other actors have not have not influenced the final decision. In most of the legislation passed, Obama has had to compromise, even his national health care programme.

We conclude that the seeds of an imperial presidency have always existed. However, for it to flourish there has to be a combination of men and events. [47] If the individual in the office does not have a sense for power and relies on the formal powers of the office then it is likely the system of checks and balances will hold firm. Similarly, extraordinary events can curtail presidential power. America recently had the diplomatic version of 9/11 with confidential cables being exposed, withdrawing even more influence from the president in decision-making power. [48]