Supreme Court Expansion of Presidential Power

Unconstitutional Leanings

Louis Fisher

• Publisher: University Press of Kansas
• Year: 2017
• ISBN:
  9780700624683
• Topic: Politica e relazioni internazionali
• Subtopic: Costituzioni

In the fourth of the Federalist Papers, published in 1787, John Jay warned of absolute monarchs who "will often make war when their nations are to get nothing by it." More than two centuries later, are single executives making unilateral decisions any more trustworthy? And have the checks on executive power, so critical in the Founders' drafting of the Constitution, held? These are the questions Louis Fisher pursues in this book. By examining the executive actions of American presidents, particularly after World War II, Fisher reveals how the Supreme Court, through errors and abdications, has expanded presidential power in external affairs beyond constitutional boundaries—and damaged the nation's system of checks and balances. Supreme Court Expansion of Presidential Power reviews the judicial record from 1789 to the present day to show how the balance of power has shifted over time. For nearly a century and a half, the Supreme Court did not indicate a preference for which of the two elected branches should dominate in the field of external affairs. But from the mid-thirties a pattern clearly emerges, with the Court regularly supporting independent presidential power in times of "emergency, " or issues linked to national security. The damage this has done to democracy and constitutional government is profound, Fisher argues. His evidence extends beyond external affairs to issues of domestic policy, such as impoundment of funds, legislative vetoes, item-veto authority, presidential immunity in the Paula Jones case, recess appointments, and the Obama administration's immigration initiatives. Fisher identifies contemporary biases that have led to an increase in presidential power—including Supreme Court misconceptions and errors, academic failings, and mistaken beliefs about "inherent powers" and "unity of office." Calling to account the forces tasked with protecting our democracy from the undue exercise of power by any single executive, his deeply informed book sounds a compelling alarm.

1

CONTEMPORARY BIASES

From their study of history, the Framers understood that the decision to initiate military actions against foreign nations should not be left to single executives. They knew that war is the nurse of executive aggrandizement and a threat to individual liberty. John Jay’s expertise in foreign affairs might have made him sympathetic to unilateral executive actions, but he bluntly warned in Federalist No. 4: “It is too true, however disgraceful it may be to human nature, that nations in general will make war whenever they have a prospect of getting any thing by it.” Absolute monarchs, he said, “will often make war when their nations are to get nothing by it, but for purposes and objects merely personal, such as a thirst for military glory, revenge for personal affronts, ambition, or private compacts to aggrandize or support their particular families or partisans.” Those and other motives, “which affect only the mind of the sovereign, often lead him to engage in wars not sanctified by justice or the voice and interests of his people.”¹

Was Jay speaking purely of attitudes and understandings of the eighteenth century, with no relevance to contemporary conditions of the twenty-first century? No. He was talking about fundamental human nature. Has it changed? Are we better able today to support unilateral decisions by single executives to take the country to war and play a dominant role in foreign affairs? An informed judgment comes not from theoretical models but by studying how Presidents actually function in office, particularly after World War II.

Consider the record from 1950 to the present: Harry Truman as the first President to go to war (against North Korea) without coming to Congress for either authorization or declaration; Dwight D. Eisenhower agreeing to use covert action to topple a democratically elected prime minister in Iran, Mohammad Mossadegh, contributing to Muslim fundamentalism and anti-Americanism; John Kennedy’s miscalculations with the Bay of Pigs; Lyndon Johnson using lies and deception to escalate the war in Southeast Asia; Richard Nixon’s secret bombing of Cambodia and the Watergate scandal leading to his resignation; Ronald Reagan’s Iran-Contra scandal, requiring an independent counsel to investigate and prosecute; Bill Clinton’s impeachment for perjury and obstruction of justice (he admitted to perjury as he left office); George W. Bush going to war against Iraq on the basis of six empty claims; Barack Obama unilaterally using military force against Libya, producing a failed state and a breeding ground for terrorism. Details on those precedents are explored in subsequent chapters.

The cost to the nation from presidential errors, misjudgments, and deceptions has been heavy, both in material terms and the constitutional values of self-government and checks and balances. The examples above are not isolated illustrations. They form a pattern that carries forth from one President to the next. Peter Shane has pointed out that “time and time again, it has become evident that Presidents, left relatively unchecked by dialogue with and accountability to the other two branches, behave disastrously. The new unilateral presidency is thus not appealing either as constitutional interpretation or as good institutional design. To put the point another way, the Framers got this right.”² On the basis of this record, on what rational ground would we (and the Supreme Court) express confidence in vesting largely unchecked power in the President, whether in external affairs or domestic policy? As noted in a study by Harold Bruff on how Presidents interpret their constitutional powers: “Even in ordinary times, our system has recently become similar enough to a permanent constitutional dictatorship to give deep pause.”³

Supreme Court Misconceptions

Initially, the Court interpreted constitutional disputes between the elected branches without favoring presidential power over Congress. In Little v. Barreme (1804), it recognized that when a presidential proclamation in time of war conflicts with congressional policy expressed in a statute, the legislative position establishes national policy.⁴ Opinions from that time to the Curtiss-Wright decision in 1936 were generally careful in analyzing the relative powers of the President and Congress. For more than eight decades, however, the Supreme Court has used its decisions—including erroneous and misleading dicta—to promote presidential authority.

The distinction between a judicial holding—guided by briefs and oral argument—and extraneous dicta simply tossed in goes back to the beginning. After authoring Marbury v. Madison in 1803, Chief Justice John Marshall expressed concern in Cohens v. Virginia (1821) about the degree to which litigants were reading Marbury carelessly, failing to separate its core holding from “some dicta of the Court.”⁵ When it became evident that attorneys were rummaging around Marbury to find nuggets favorable to their cause, he insisted that the “single question” before the Court was whether Congress could give the Court original jurisdiction in a case in which the Constitution had not granted it.⁶ That was the core holding. Everything else amounted to dicta. It was a mystery to Justice Benjamin Cardozo how judges, “of all persons in the world, should put their faith in dicta.”⁷ There was a constant need to separate “the accidental and the non-essential from the essential and inherent.”⁸ That understanding is regularly ignored by the judiciary, both lower courts and the Supreme Court.

The custom is to cite whatever appears in a decision. Supreme Court support for independent presidential power is drawn from both judicial rulings and dicta carelessly added to holdings. Dicta can be demonstrably false, as with the sole-organ doctrine that found its way into the Curtiss-Wright decision, analyzed in Chapter 4. Scholars immediately saw the error and wrote about it decade after decade, correctly pointing out that it was being exploited by the executive branch and courts to promote inherent, independent, and unchecked presidential power. Nevertheless, the error remained firmly in place. As explained in Chapter 14, not until 2015 did the Supreme Court acknowledge this error. In doing so, it left in place other erroneous dicta from Curtiss-Wright that favor presidential power. I am unaware of Supreme Court decisions that, through error and misconception, advanced congressional power beyond constitutional limits.

The risk of judicial misconceptions about historical precedents should be well known. An article by Justice Robert Jackson in 1945 observed: “Judges often are not thorough or objective historians.”⁹ In his study of judicial dependence on history, Charles Miller warned that the Supreme Court “as a whole cannot indulge in historical fabrication without thereby appearing to approve the deterioration of truth as a criterion for communication in public affairs.”¹⁰ Writing in 1965, Alfred Kelly described the Court’s role as constitutional historian as “if not a naked king, no better than a very ragged one. From a professional point of view, most, if not all, of its recent historical essays are very poor indeed.”¹¹ Too often Justices “reach conclusions that are plainly erroneous.”¹²

Matters have not improved with time. In an article on originalism in 1989, Justice Antonin Scalia remarked that the judicial system “does not present the ideal environment for entirely accurate historical inquiry.”¹³ Justice John Paul Stevens, in a book published in 2011, wrote that “judges are merely amateur historians” whose interpretations of past events, “like their interpretations of legislative history, are often debatable and sometimes simply wrong.”¹⁴ Judge J. Harvie Wilkinson underscores judicial limitations in understanding matters of history. He explains that historians spend years studying a period of time “and investigating its nuances,” while judges have only months to decide each case “and even that time has to be divided among all the cases on the docket.”¹⁵ History professors, he points out, have t...