Eric Posner reviews two books about the expansive powers of the president and the federal executive in general. His reviews illustrate some of the problems with executive power that we will cover this week.
The first is The Discretionary President: The Promise and Peril of Executive Power, which attempts to determine when and under what conditions a president may be able to justifiably exceed the limits placed on his powers by the constitution:
He argues that the president needs the discretionary power to disregard the law during emergencies, but also that actions taken pursuant to this power should not be regarded as within his legal power. The president may use his “extra-constitutional” authority to take such actions if they are necessary to protect the nation; the actions must be taken during “extraordinary” rather than ordinary times, and they must not reflect the president’s personal views about what is morally important or politically expedient. If the president does not satisfy these conditions, the public must pressure Congress to impeach him. If he does satisfy them, his actions undergo a kind of constitutional baptism that washes away the taint of illegality.
For all the talk we have offered regarding how the presidents is not allowed prerogative powers, this isn't an absolute restriction. It must be accepted that on occasion a president will have go beyond constitutional limitations, but when that happens, other restrictions must kick in gear:
Hobbes, Locke, Hamilton, Madison, Jefferson, and Lincoln march splendidly across its pages, dispensing wisdom in extraordinary prose. The Americans in that group of authorities all agreed that the president of the United States must have the discretionary authority to disregard laws where necessary to address an emergency. They disagreed about whether the president enjoys implicit constitutional authority to take these actions or must act outside the Constitution. This distinction mattered to the founders and to Lincoln because they had to explain how their visions of limited government left the executive the discretionary powers it needs to protect the nation. But history settled the debate. Executive prerogative has been institutionalized. The only remedy for abusive behavior by presidents is political: in impeachment or at the polls.
The second book is The Decline and Fall of the American Republic which details the problems associated with the expansion of executive power that we will cover this week. The book's author outlines remedies Posner finds unrealistic and in his conclusion has this to say about the factors leading to the increase of presidential power:
The executive has evolved to its present state because it is the one political institution that can address modern problems. The clumsy, many-headed Congress is hampered by its over-elaborate structure and its senatorial half, where the threshold for action is so high and senators from small states have excessive power. The courts are too weak, passive, and decentralized. State governments are too small. The military lacks people’s trust, at least as far as civilian governance is concerned, because it is not a democratic institution. Precisely because the Founders created an executive office with ill-defined powers, this office could rise to meet modern challenges. James Madison’s vision of checks and balances has given way to a system of executive primacy, but rather than leading to tyranny, as he feared, democratic politics has-so far—kept the American president, sometimes for better and sometimes for worse, under control.
The increased power of the executive may have been inevitable.
