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.

Tenth Amendment Center: The Presidency is Too Powerful

The following article was written by Trace Mitchell at the Foundation for Economic Education, but republished at the Tenth Amendment Center. In The Presidency is Too Powerful Mitchell lays out an explanation for how President after President has drawn more power to the office. And his analysis there is correct – Presidents have sought to increase the power of the office. However, after giving an example of President Trump’s rhetoric over China Mitchell says “That is how we got to where we are today.” This, unfortunately, ignores the fact that Congress on its own initiative has shifted more power to the executive over time through their desire to escape responsibility. Mitchell touches on it when he talks about Congress delegating their power, but he only puts it in terms of a response to Presidential rhetoric. Congress has accomplished this escape from culpability by unconstitutionally transferring their power and duty to pass all laws to various administrative agencies in the executive. The executive branch now writes administrative law which is enforced by executive agents and judged in executive administrative courts.

This problem was being noted as early as 1944 in a Virginia Law Review article titled “Administrative Law: A Threat to Constitutional Government?” There are times when Congress finds itself at an impasse over certain issues. They know that an action must be taken, but it get done in Congress because of political interests. Sometimes they are able to pass this off to independent committees which decide the outcome and Congress decides that they will vote yea or nay on the committee’s decision without subjecting it to further debate. Other times, though, Congress will simply pass a law that authorizes an executive agency to create the laws covering an area. Congress wins because they can tell their constituents that they acted to resolve an issue, but any negative outcomes can be blamed on the executive agency. Representatives are happy because they can’t be held accountable. Presidents are happy because the executive branch has more power. Citizens lose doubly.

An excerpt from The Presidency is Too Powerful:

Even if Trump does not have the power to directly order all U.S. firms to cease trade with Chinese corporations, the discretionary power held by the executive branch is strong—so strong that he may be able to achieve a similar outcome through other means. He could impose massive tariffs so large they essentially act as de facto prohibitions. He could threaten noncompliant firms with harsher regulations or enforcement that is more aggressive. He may be able to achieve his goals indirectly even if he cannot achieve them directly.

Either way, rhetoric like this shifts the Overton window further and further. We begin to accept things that seemed entirely unacceptable not long ago. We become desensitized. The dividing lines between the different branches of government become increasingly blurred. That is how we got where we are today.

Executive overreach is not a new phenomenon, but it does have an accumulative effect. Each president is able to get away with a little bit more, typically under the guise of an “emergency.” Slowly they amass greater and greater power. Slowly the concept of strictly limited, enumerated powers deteriorates. While each president since the founding has attempted to increase the scope of their power, this behavior took a new form after Woodrow Wilson.

Wilson was able to take advantage of an overly ambitious president’s best friend: war. As FDR’s Attorney General Francis Biddle said, “The constitution has not greatly bothered any wartime president.” Wilson began by going after one of the most fundamental constitutional guarantees: freedom of expression.

After being inaugurated into his second term, Wilson asked Congress to give him the authority to censor the press during times of war, to criminalize the promotion of America’s enemies, and to combat literature that was “of a treasonable or anarchistic nature.” Congress listened and passed the Espionage Act of 1917, which gave Wilson almost everything he asked for except the ability to censor the press. However, just a year later the Espionage Act was amended with the Sedition Act of 1918, which provided for more government surveillance of its citizens and further limited speech that was viewed as detrimental to the government. Wilson finally amassed most of the power he wanted.

Franklin D. Roosevelt continued this legacy of expanding executive power during times of distress. In fact, during his first week in office, FDR used the Trading with the Enemy Act of 1917—a law granting the president vast economic powers during times of war or national emergency—to order a “bank holiday” in order to prevent bank runs. This was particularly aggressive because the act did not give him the power to regulate the domestic economy. Since FDR, executive power has continued to expand and grow, increasing more and more under each successive president. Truman, Eisenhower, Kennedy, Johnson, Nixon, Ford, Carter, Reagan, Bush Sr., Clinton, Bush Jr., Obama, and Trump have each used and built upon the powers seized by their predecessors.

The Founders were afraid of this exact scenario. James Madison, often referred to as the “Father of the Constitution,” wrote that power “is of an encroaching nature” and thought “it ought to be effectually restrained from passive the limits assigned to it.” To combat this tendency, he created a system of checks and balances where each branch has significant authority over their domain and can limit the power of the other branches. Or, in the words of the great modern philosopher Kanye West, “No one man should have all that power.” However, Madison did not predict that branches would delegate their power to the extent they have with legislation like the Espionage Act or the International Emergency Economic Powers Act.

Click here to read the entire story at the Tenth Amendment Center.