AN ALL POWERFUL EXECUTIVE: EXACTLY WHAT THE FOUNDING FATHERS FEARED
BY
ALLAN C.BROWNFELD
————————————————————————————————————————
During the colonial period, Americans became all too familiar with the dangers of unlimited and arbitrary government. The Revolution was fought to prevent such governmental abuses and to make certain that individual citizens might be secure in their lives and property. When the Articles of Confederation were being considered , fears of excessive concentration of authority were often expressed. The town of West Springfield, Massachusetts, to cite one example, reminded its representatives of the “weakness of human nature and growing thirst for power …It is freedom, Gentlemen, it is freedom, and not a choice of the forms of servitude for which we contend…”
Samuel Adams asserted that, “There is a degree of watchfulness over all men possessed of power or influence upon which the liberties of mankind much depend. It is necessary to guard against the infirmities of the best as well as the worst of men.” Therefore, “Jealousy is the best security of public liberty.”
The American system created a system of checks and balances. After their experience with King George 111, unlimited executive power was feared and the Constitution clearly limited the power of the president.
The Constitution, for example, gives the warmaking power to Congress. The last time we went to war as the result of a congressional declaration was World War 11. In his book “The Way We Go To War,” Merlo Pusey notes that, “In recent years, the President has been exercising the power to make war with alarming consistency. One-man decisions involving the lives of citizens and the fate of the nation have become the rule at a time when the President has at his command more power than any other human being has ever had.”
At the present time, U.S. military assistance to Israel, according to a new assessment by Amnesty International, has been used in alleged violations of international law agains Palestinian civilians. It says Israel’s military has used U.S.-manufactured weapons to conduct unlawful attack or kill civilians, which Amnesty says should be investigated as war crimes. Amnesty declares that, “The United States Government must immediately suspend the transfer of all weapons…to the Israeli government so long as compliance with international humanitarian and human rights law is not demonstrated.” The Biden administration itself has said that Israel’s use of U.S.-provided weapons in Gaza ‘likely violated international humanitarian law.” Despite all of this, President Biden continues the flow of weapons to Israel. At this point more than 35,000 Palestinians have been killed, thousands of them women and children.
We have gone to war without a congressional declaration in Korea, Vietnam, Iraq, Afghanistan and other places. The expansion of presidential power and the growing abandonment of the separation of powers and the idea of checks and balances is explored by University of Virginia Law Professor Saikrishna Prakash in his book “The Living Presidency: An Originalist Argument Against Its Ever Expanding Powers.” He points out that by small steps, without any constitutional amendment, the presidency has become “more Royal and powerful and less executive and duty bound.” He argues that because of this “creeping constitutional coup,” the presidency “has no enduring limits, no permanent frontiers.”
Prakash points out that the Constitution’s treaty clause, requiring approval by two-thirds of the Senate is “a shell of its former self.” Domestically, President Biden appears to be violating the Constitution’s appropriations clause by spending, without congressional authorization, $153 billion thus far, by forgiving student loans. When he was president, Donald Trump “repurposed” for building his border wall, money authorized for other purposes.
The Founders, Prakash writes, viewed the President as “an instrument of Congress,” executing the laws it passed. In his view it is possible to “recage the executive lion” if only Congress would exercise the powers it has permitted to atrophy. Yet at this very moment, in the case of Trump v. United States, the Supreme Court is considering whether Mr. Trump can claim absolute immunity for his conduct while president, including the alleged crimes in the Justice Department’s election fraud case. Most of the justices appeared skeptical of such a claim. This claim includes immunity from even murder. The Justices are considering a hypothetical borrowed from D.C. Circuit Court of Appeals Judge Florence Y, Pan : “Could a president order SEAL team 6 to assassinate a political rival?”
In his book “Rebellion: How Antliberalism is Tearing America Apart—-Again,” Robert Kagan writes: “Americans are going down this route today because too many no longer care enough whether the system the Founders created survives…the unique political system established by the Founders based on the principles of universal equality and natural rights…”
The Founders feared that the system of limited government and checks and balances might not survive into the future. Kagan writes: “The Founders understood, and feared, that the fervor for rights and liberalism that animated the Revolution might not last. Writing in 1781, two years before the end of the war, Thomas Jefferson predicted that once the war ended, ‘we shall be going down hill.’ The people would return to their quotidian lives, forgetting their passionate concern for rights, intent only on ‘making money.’ They might never again come together ‘to effect a due respect for their rights,’ and so their government would stop being solicitous of their rights. Over a half century later, Lincoln, in his famous Lyceum address, lamented that the original spirit of the Revolution had dissipated with time, leaving Americans with only the normal selfishness of human beings. The original ‘pillars of the temple of liberty’ had ‘crumbled away.’ A little over two decades later, the nation fell into civil war.”
If our government should fail, in Kagan’s view, “…it will not be because the institutions established by the Founders failed. It will not be because of new technologies or flaws in the Constitution…”. It will, in the end, because our citizens no longer value democracy and individual freedom.
Democracy becomes suicidal when the members of competing parties come to view one another as enemies rather than as fellow citizens engaging in a political process set forth in a Constitution which has made ours the oldest continuous form of government in the world today. I remember a far different kind of politics. After law school, worked in the U.S. Senate and House of Representatives for a number of years. In one position, I was assistant to the research director of the House Republican Conference.
In that position, I worked with Republicans preparing legislation to deal with a variety of national problems. Among our members were two future presidents, Gerald Ford and George H.W.Bush. I never heard them speak ill of their Democratic counterparts. Instead, they sought to form coalitions with Democrats to promote policies that were best for the country. Working together, Republicans and Democrats won the Cold War and advanced civil rights. Today, we see elected officials engaging in personal insults and viewing members of the other party as “enemies.”
Democracy is in real trouble if such a mindset persists. The Founding Fathers did an extraordinary job in crafting a Constitution which limited the power of the executive and created a system of checks and balances. It has lasted almost 250 years, longer than any government in the world. Whether it survives into the future is entirely up to us.
##
.