Mises Institute: The American Empire

A republic if you can keep it

This rather long article is actually a condensation of a longer piece by Garet Garrett called The Rise of Empire, which was published in 1952. The American Empire appears in Mises Wire. It’s a bit of a contrast with AG Barr’s article about how the executive branch is too weak, but there is overlap. Part of the difference between the two lies in the administrative agencies and whether they are truly under the control of the President or under the control or influence of other political interests. Constitutionally, administrative agencies as law-making bodies should not exist at all, but as part of the executive should be entirely under the direction of the office of the President. In practice, they have been unaccountable, extra-Constitutional legislative bodies only marginally under the power of the executive branch. When the occupant of the Presidential office is able to appeal to the appetites and desires of the various administrative agency heads, he will be much more powerful than a President at odds with those same agencies.

We have crossed the boundary that lies between Republic and Empire. If you ask when, the answer is that you cannot make a single stroke between day and night; the precise moment does not matter. There was no painted sign to say: “You now are entering Imperium.” Yet it was a very old road and the voice of history was saying: “Whether you know it or not, the act of crossing may be irreversible.”

That a Republic may vanish is an elementary schoolbook fact.

The Roman Republic passed into the Roman Empire, and yet never could a Roman citizen have said, “That was yesterday.” Nor is the historian, with all the advantages of perspective, able to place that momentous event at an exact point on the dial of time. The Republic had a long, unhappy twilight. It is agreed that the Empire began with Augustus Caesar. What Augustus Caesar did was to demonstrate a proposition found in Aristotle’s Politics, one that he must have known by heart, namely this: “People do not easily change, but love their own ancient customs; and it is by small degrees only that one thing takes the place of another; so that the ancient laws will remain, while the power will be in the hands of those who have brought about a revolution in the state.”

Revolution within the Form

There is no comfort in history for those who put their faith in forms; who think there is safeguard in words inscribed on parchment, preserved in a glass case, reproduced in facsimile and hauled to and fro on a Freedom Train.

Let it be current history. How much does the younger half of this generation reflect upon the fact that in its own time a complete revolution has taken place in the relations between government and people?

The extent to which the original precepts and intentions of constitutional, representative, limited government, in the republican form, have been eroded away by argument and dialectic is a separate subject, long and ominous, and belongs to a treatise on political science. The one fact now to be emphasized is that when the process of erosion has gone on until there is no saying what the supreme law of the land is at a given time, then the Constitution begins to be flouted by executive will, with something like impunity. The instances may not be crucial at first and all the more dangerous for that reason. As one is condoned another follows and they become progressive.

To outsmart the Constitution and to circumvent its restraints became a popular exercise of the art of government in the Roosevelt regime. In defense of his attempt to pack the Supreme Court with social-minded judges after several of his New Deal laws had been declared unconstitutional, President Roosevelt wrote: “The reactionary members of the Court had apparently determined to remain on the bench for as long as life continued — for the sole purpose of blocking any program of reform.”

Among the millions who at the time applauded that statement of contempt there were very few, if there was indeed one, who would not have been frightened by a revelation of the logical sequel. They believed, as everyone else did, that there was one thing a President could never do. There was one sentence of the Constitution that could not fall, so long as the Republic lived.

The Constitution says: “The Congress shall have power to declare war.”

That, therefore, was the one thing no President could do. By his own will he could not declare war. Only Congress could declare war, and Congress could be trusted never to do it but by will of the people. And that was the innermost safeguard of the republic. The decision whether or not to go to war was in the hands of the people — or so they believed. No man could make it for them.

It is true that President Roosevelt got the country into World War II. That is not the same thing. For a declaration of war he went to Congress — after the Japanese had attacked Pearl Harbor. He wanted it, he had planned it, and yet the Constitution forbade him to declare war and he durst not do it.

Nine years later a much weaker President did…

The first requisite of Empire is:

The executive power of government shall be dominant. It may be dominant originally, as in the days of hereditary kingship, or it may come to be dominant by change, as when the Roman Republic passed under the rule of Caesars.

What Empire needs above all in government is an executive power that can make immediate decisions, such as a decision in the middle of the night by the President to declare war on the aggressor in Korea, or, on the opposite side, a decision in the Politburo in the Kremlin, perhaps also in the middle of the night, to move a piece on the chessboard of cold war.

The Federal income-tax law of 1914 gave the government unlimited access to wealth and, moreover, power for the first time to levy taxes not for revenue only but for social purposes, in case there should arise a popular demand for redistribution of the national wealth. World War I immediately followed. Looking backward we can see that these two events marked the beginning of a great rise in the executive power of government. Then came in rapid succession (1) the Great Depression, (2) the revolutionary Roosevelt regime, and (3) World War II, all within an arc of twenty years…

(2) By reinterpretation of the language of the Constitution. That is done by a sympathetic Supreme Court.

(3) By innovation. That is when, in this changing world, the President does things that are not specifically forbidden by the Constitution because the founders never thought of them.

(4) By the appearance in the sphere of Executive Government of what are called administrative agencies, with power to issue rules and regulations that have the force of law. These agencies have built up a large body of administrative law which people are obliged to obey. And not only do they make their own laws; they enforce their own laws, acting as prosecutor, jury and judge; and appeal from their decisions to the regular courts is difficult because the regular courts are obliged to take their findings of fact as final. Thus the constitutional separation of the three governmental powers, namely, the legislative, the executive and the judicial, is entirely lost.

(5) By usurpation. That is when the President willfully confronts Congress with what in statescraft is called the fait accompli — a thing already done — which Congress cannot repudiate without exposing the American government to the ridicule of nations…

(6) Lastly, the powers of Executive Government are bound to increase as the country becomes more and more involved in foreign affairs. This is true because, both traditionally and by the terms of the Constitution, the province of foreign affairs is one that belongs in a very special sense to the President…

Another brand mark of Empire is: Ascendancy of the military mind, to such a point at last that the civilian mind is intimidated.”

…It was General MacArthur himself who uttered these devastating words:

Talk of imminent threat to our national security through the application of external force is pure nonsense. … Indeed, it is a part of the general pattern of misguided policy that our country is now geared to an arms economy which was bred in an artificially induced psychosis of war hysteria and nurtured upon an incessant propaganda of fear. While such an economy may produce a sense of seeming prosperity for the moment, it rests on an illusory foundation of complete unreliability and renders among our political leaders, almost a greater fear of peace than is their fear of war.

The bald interpretation of General MacArthur’s words is this. War becomes an instrument of domestic policy. Among the control mechanisms on the government’s panel board now is a dial marked War…

No doubt the people know they can have their Republic back if they want it enough to fight for it and to pay the price. The only point is that no leader has yet appeared with the courage to make them choose.

Click here to read the entire article at Mises Wire.

Attorney General Barr: Checks and Balances Are Unbalanced

The following is an excerpt from a speech given by Attorney General Barr earlier this month to the Federalist Society’s National Lawyers Convention. In the speech, Barr expands on imbalances which have developed over time which he claims have weakened the office of the President so that it cannot properly balance against the Legislative and Judicial branches. He has some insightful things to say, so stick with it. I’m not sure buy the entire argument, but there is a lot of truth in here.

The consensus for a strong, independent Executive arose from the Framers’ experience in the Revolution and under the Articles of Confederation.  They had seen that the War had almost been lost and was a bumbling enterprise because of the lack of strong Executive leadership.  Under the Articles of Confederation, they had been mortified at the inability of the United States to protect itself against foreign impositions or to be taken seriously on the international stage.  They had also seen that, after the Revolution, too many States had adopted constitutions with weak Executives overly subordinate to the Legislatures.  Where this had been the case, state governments had proven incompetent and indeed tyrannical.

From these practical experiences, the Framers had come to appreciate that, to be successful, Republican government required the capacity to act with energy, consistency and decisiveness.  They had come to agree that those attributes could best be provided by making the Executive power independent of the divided counsels of the Legislative branch and vesting the Executive power in the hands of a solitary individual, regularly elected for a limited term by the Nation as a whole. As Jefferson put it, ‘[F]or the prompt, clear, and consistent action so necessary in an Executive, unity of person is necessary….”

While there may have been some differences among the Framers as to the precise scope of Executive power in particular areas, there was general agreement about its nature.  Just as the great separation-of-powers theorists– Polybius, Montesquieu, Locke – had, the Framers thought of Executive power as a distinct specie of power.  To be sure, Executive power includes the responsibility for carrying into effect the laws passed by the Legislature – that is, applying the general rules to a particular situation.  But the Framers understood that Executive power meant more than this.

It also entailed the power to handle essential sovereign functions – such as the conduct of foreign relations and the prosecution of war – which by their very nature cannot be directed by a pre-existing legal regime but rather demand speed, secrecy, unity of purpose, and prudent judgment to meet contingent circumstances.  They agreed that – due to the very nature of the activities involved, and the kind of decision-making they require – the Constitution generally vested authority over these spheres in the Executive.  For example, Jefferson, our first Secretary of State, described the conduct of foreign relations as “Executive altogether,” subject only to the explicit exceptions defined in the Constitution, such as the Senate’s power to ratify Treaties.

A related, and third aspect of Executive power is the power to address exigent circumstances that demand quick action to protect the well-being of the Nation but on which the law is either silent or inadequate – such as dealing with a plague or natural disaster.  This residual power to meet contingency is essentially the federative power discussed by Locke in his Second Treatise.

And, finally, there are the Executive’s powers of internal management.  These are the powers necessary for the President to superintend and control the Executive function, including the powers necessary to protect the independence of the Executive branch and the confidentiality of its internal deliberations.  Some of these powers are express in the Constitution, such as the Appointment power, and others are implicit, such as the Removal power.

One of the more amusing aspects of modern progressive polemic is their breathless attacks on the “unitary executive theory.”  They portray this as some new-fangled “theory” to justify Executive power of sweeping scope. In reality, the idea of the unitary executive does not go so much to the breadth of Presidential power.  Rather, the idea is that, whatever the Executive powers may be, they must be exercised under the President’s supervision.  This is not “new,” and it is not a “theory.”  It is a description of what the Framers unquestionably did in Article II of the Constitution.

After you decide to establish an Executive function independent of the Legislature, naturally the next question is, who will perform that function?  The Framers had two potential models. They could insinuate “checks and balances” into the Executive branch itself by conferring Executive power on multiple individuals (a council) thus dividing the power.  Alternatively, they could vest Executive power in a solitary individual.  The Framers quite explicitly chose the latter model because they believed that vesting Executive authority in one person would imbue the Presidency with precisely the attributes necessary for energetic government.  Even Jefferson – usually seen as less of a hawk than Hamilton on Executive power – was insistent that Executive power be placed in “single hands,” and he cited the America’s unitary Executive as a signal feature that distinguished America’s success from France’s failed republican experiment…

I am concerned that the deck has become stacked against the Executive.  Since the mid-60s, there has been a steady grinding down of the Executive branch’s authority, that accelerated after Watergate.  More and more, the President’s ability to act in areas in which he has discretion has become smothered by the encroachments of the other branches.

When these disputes arise, I think there are two aspects of contemporary thought that tend to operate to the disadvantage of the Executive.

The first is the notion that politics in a free republic is all about the Legislative and Judicial branches protecting liberty by imposing restrictions on the Executive.  The premise is that the greatest danger of government becoming oppressive arises from the prospect of Executive excess.  So, there is a knee-jerk tendency to see the Legislative and Judicial branches as the good guys protecting society from a rapacious would-be autocrat.

This prejudice is wrong-headed and atavistic.  It comes out of the early English Whig view of politics and English constitutional experience, where political evolution was precisely that.  You started out with a King who holds all the cards; he holds all the power, including Legislative and Judicial.  Political evolution involved a process by which the Legislative power gradually, over hundreds of years, reigned in the King, and extracted and established its own powers, as well as those of the Judiciary.  A watershed in this evolution was, of course, the Glorious Revolution in 1689…

The second contemporary way of thinking that operates against the Executive is a notion that the Constitution does not sharply allocate powers among the three branches, but rather that the branches, especially the political branches, “share” powers.  The idea at work here is that, because two branches both have a role to play in a particular area, we should see them as sharing power in that area and, it is not such a big deal if one branch expands its role within that sphere at the expense of the other.

This mushy thinking obscures what it means to say that powers are shared under the Constitution.  Constitution generally assigns broad powers to each of the branches in defined areas.  Thus, the Legislative power granted in the Constitution is granted to the Congress.  At the same time, the Constitution gives the Executive a specific power in the Legislative realm – the veto power. Thus, the Executive “shares” Legislative power only to the extent of the specific grant of veto power.  The Executive does not get to interfere with the broader Legislative power assigned to the Congress.

In recent years, both the Legislative and Judicial branches have been responsible for encroaching on the Presidency’s constitutional authority.  Let me first say something about the Legislature

A prime example of this is the Senate’s unprecedented abuse of the advice-and-consent process.  The Senate is free to exercise that power to reject unqualified nominees, but that power was never intended to allow the Senate to systematically oppose and draw out the approval process for every appointee so as to prevent the President from building a functional government.

Yet that is precisely what the Senate minority has done from his very first days in office.  As of September of this year, the Senate had been forced to invoke cloture on 236 Trump nominees — each of those representing its own massive consumption of legislative time meant only to delay an inevitable confirmation.   How many times was cloture invoked on nominees during President Obama’s first term?  17 times.  The Second President Bush’s first term?  Four times.  It is reasonable to wonder whether a future President will actually be able to form a functioning administration if his or her party does not hold the Senate.

Congress has in recent years also largely abdicated its core function of legislating on the most pressing issues facing the national government.  They either decline to legislate on major questions or, if they do, punt the most difficult and critical issues by making broad delegations to a modern administrative state that they increasingly seek to insulate from Presidential control.  This phenomenon first arose in the wake of the Great Depression, as Congress created a number of so-called “independent agencies” and housed them, at least nominally, in the Executive Branch.  More recently, the Dodd-Frank Act’s creation of the Consumer Financial Protection Branch, a single-headed independent agency that functions like a junior varsity President for economic regulation, is just one of many examples.

Of course, Congress’s effective withdrawal from the business of legislating leaves it with a lot of time for other pursuits.  And the pursuit of choice, particularly for the opposition party, has been to drown the Executive Branch with “oversight” demands for testimony and documents.  I do not deny that Congress has some implied authority to conduct oversight as an incident to its Legislative Power.  But the sheer volume of what we see today – the pursuit of scores of parallel “investigations” through an avalanche of subpoenas – is plainly designed to incapacitate the Executive Branch, and indeed is touted as such. ..

Click here to read the entire speech at the Dept. of Justice website.

Related:

Intellectual Takeout: The Deep State – The Headless Fourth Branch of Government

CSG: WA Constitution – Executive, Online Class Dec. 28, 2017

The Center for Self Governance is hosting an online class on the Executive portion of the Washington State Constitution on December 28th, 2017. Tuition is $25.

Click here to register.

State Constitution 300: Executive

NOTE:  This class is a LEVEL 300 WASHINGTON STATE CONSTITUTION CLASS.

You do not have to be a CSG student to attend.  You do not have to take the Constitution classes in sequence.

This is a 4 hour online lecture-style class.  Supplies to bring include: paper, pen, a copy of your state constitution and your enthusiasm! This is an interactive class and we look forward to hearing from you.