By Stromberg, Joseph R.
Freeman , Vol. 57, No. 1
"Well, when the president does it that means it is not iUegal."
- Richard Nixon, interviewed by David Frost, May 19, 1977
American government under the Constitution was supposedly meant to work as follows: Congress, staying within delegated powers and the Bill of Rights, passes laws; the president executes the laws; and the courts sort out ensuing wrangles. This plan ran aground rather early - the 1798 Alien and Sedition Acts, for example - which raises at least two possibilities: 1) The Federalist movement systematicaUy misrepresented its project or 2) the framers' weU-meant "design" fell short of their goals. Figuring this out is difficult, with original sin, human nature, foreign complications, and more tangling up the causal chain.
Even so, the Constitution - read anywhere near its apparent intent - might be worth hanging onto; but how can we get such a reading? Enter a new crop of "conservative" legalists to offer us one under the rubric of "originalism."
For this crop of presidentialists, which includes John C. Yoo, Roger J. Delahunty, David Addington, Jay S. Bybee, and Attorney General Alberto Gonzales, originalism centers on the Unitary Executive Theory (UET) - a bizarre doctrine of presidential infaUibility allegedly prefigured by Alexander Hamilton. Under the UET, America's president is utterly sovereign in his sphere and sole judge of his own powers.
The merest glance at America's founding suggests that no one really wanted full-bore elective despotism. Nonetheless, American presidentialists apparently find just that in the terms "war powers" and "commander-inchief," and in presidential dominance of foreign affairs. Yet their forebear Hamilton conceded that in war the president has "nothing more than the supreme command and direction of the military and naval forces, as first General and Admiral of the Confederacy" (Federalist 69).
Presidentialists take John Marshall's comment, in Congress, that the president is our "sole organ of communication" with other nations as entailing lots of power. And always, presidents assert powers and store up precedents. Presidentialists turn presidential duties, chores, and everyday practices into powers, and strong figures have built the office.
In the Mexican War (1846-48), President James Polk established the practical precedent of maneuvering Congress into war. But it was Abraham Lincoln, above aU, who asserted immeasurable war powers belonging (mostly) to the president, by combining the commander-in-chief clause with the president's job of enforcing the laws. Of this, legal historian Raoul Berger writes in Executive Privilege: "[W]hen nothing is added to nothing the sum remains nothing." But success succeeds, and later presidents - Richard Nixon and George W Bush among them - have eagerly wrapped themselves in Lincoln's mantle of effectively suspending the Constitution to save the country.
After Lincoln presidential war powers rested up until 1898, when President William McKinley wielded them overseas. (McKinley issued a virtual ultimatum to Spain over Cuba a month before Congress declared war.) Theodore Roosevelt thought he could do anything not prohibited, at home and abroad, thereby neatly reversing the premise on which the Constitution was sold. Woodrow Wilson, too, had large views, but in 1917-1918 amiably shared with Congress the power of treading liberty under foot (conscription, for example), albeit with no new doctrines, merely existing bad ones.
Worse luck, in United States v. Curtiss- Wright Export Co. (1936), conservative Supreme Court Justice George Sutherland fancied that during our revolution, George Ill's prerogative powers somehow lighted on the union, hovering, extra-constitutionally, above successive Congresses, descending finaUy on the presidency. Berger deconstructed Curtiss-Wright, underscoring the break with England and the resulting institutional discontinuity. Sutherland's opinion stands, approvingly cited by UE theorists. …