In a week of news coverage dominated by the Bergdahl affair, President Obama submitted, “I’m never surprised by controversies that are whipped up in Washington,” before forwarding his administration’s latest rationale as to why he agreed to swap an American serviceman for five Taliban terrorists: “I write too many letters to folks who, unfortunately, don’t see their children again after fighting a war.”
Earlier in the same press conference, he posited that it is a “basic principle” that the United States does not leave any soldier behind on the battlefield. A day prior, the Obama Administration defended the secrecy of the deal on the basis that telling Congress as required by Section 1035(d) of the 2014 National Defense Authorization Act would have put Sgt. Bergdahl’s life at risk. And the day before that, the Administration suggested that it was motivated by Bergdahl’s health.
The Administration’s daily affirmations, explanations, and refutations followed last weekend’s Rose Garden announcement celebrating the Bergdahl swap and a Sunday talk show circuit victory tour aptly described by both the Weekly Standard’s Stephen Hayes and the Wall Street Journal’s Kimberly Strassel as amateur hour once again at 1600 Pennsylvania Avenue. Why send Administration officials on national television advancing the case that Bergdahl had served honorably and that the move did not undermine American national security, if you knew otherwise? And why argue thereafter that the Administration was fully within its legal prerogative in a blatant misreading of the Defense Authorization Act? Memo to the White House: Many of the controversies that are whipped up in Washington D.C. are self-inflicted.
We certainly understand the President hating to write letters to parents of lost servicemen. The 70th anniversary of D-Day last Friday was a poignant reminder of the sacrifices that servicemen and servicewomen and their families make to secure American liberty. The military’s commitment not to leave soldiers behind is also, obviously, commendable. But neither of these principles justifies actions that undermine the core constitutional responsibilities of the President. Let President Obama show that his trade made American liberty more secure before he calls this a Washington tempest in a teapot or seconds Harry Reid’s judgment that critics “are making a big deal over nothing.”
In reality, when one peels away the outer layers of this week’s news onion, it becomes clear that “the controversy whipped up by others” emerged from the President’s desire to make good on his 2008 campaign promise to close the Guantanamo Bay detention camp. Why hasn’t he simply closed down the camp? Too politically risky. Why not suggest that as Commander-in-Chief, he has the constitutional authority to act unilaterally on the matter? Because his Administration had already penned a memo contending that the executive did not possess sole authority on such matters. Thus he was left this week trying to square several circles he had drawn in his attempt to distance himself from President Bush’s foreign policy.
At the core of the onion, however, is not anything the president or his advisors said on the campaign trail or on their way into office, but rather the Constitution itself and its distribution of powers among the three branches of the federal government. Senator and candidate Obama was a consistent critic of what he took to be executive overreach on the part of the Bush Administration in its response to the September 11th attacks of 2001. President Obama, however, has acted upon much the same principles as his predecessor, while adding new dimensions of domestic policy executive overreach. The result: an increasingly hegemonic presidency that employs the Constitution as campaign fodder during election season but sees it as a nuisance otherwise.
Statesmanship bridled by the Constitution looks very different.
It is impossible to overstate the significance of the separation of powers in the political thought of the American founders, despite the fact that the connection between it and the cardinal principle of republicanism–the rule of law–was of relatively recent discovery. John Locke’s definitive Second Treatise of Government, for example, published one hundred years before the Constitution was written, identifies three basic political powers, but places no special emphasis on maintaining their independence. As James Madison notes in Federalist 47, it was only with the publication of Montesquieu’s Spirit of the Laws, sixty years later, that the doctrine of the separation of powers was brought decisively “to the attention of mankind.”
Its conquest, if recent at the time of the founding, was nevertheless complete: “No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty,” claimed Madison in the same essay. As a result, he readily conceded that if the Constitution did not provide adequately for the separation of powers “no further arguments would be necessary to inspire a universal reprobation of the system.”
Why such a strong affirmation? According to Madison:
“The accumulation of all powers, legislative, executive, and judiciary in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”
For Madison, tyranny can be identified in the form of a regime, before any tyrant has appeared or any oppressive actions have been taken: absolute power can be “accumulated” in the framing of a government. On the other hand, it may also arise, de facto, even where the formal constitution provides against it, by the progressive “accumulation” of power by one branch or another. While Madison did not expect the powers exercised by the three branches of government to be completely ‘separate and distinct,’ he warns, “where the WHOLE power of one department is exercised by the same hands which possess the WHOLE power of another department, the fundamental principles of a free constitution are subverted.”
As we’ll see further in subsequent essays, Madison, like most of the founders, believed that a hegemonic Congress was the greatest (at least near-term) threat to the American republic. But here too one hundred years of Progressivism has taken its toll, making the Congress, today, the “least dangerous branch” in the system.
Consider the balance of authority in the present controversy over the Bergdahl trade. Congress, according to the Constitution’s Article I, Section 8, has the authority “to make rules concerning Captures on Land and Water” and “to make rules for the Government and Regulation of the land and naval Forces”; the President is, of course, “commander-in-chief” of the military. A plain reading of the texts in view suggests that Congress was well within its rights to prescribe the conditions upon which detainees (“Captures”) could be released from Guantanamo. Whatever the wisdom of Congress’s measure, the president is to “take care that the laws be faithfully executed”–a clear constitutional responsibility that apologists for executive authority left and right would do well to prioritize over more speculative conclusions.
The president’s serial violations of that charge undermine the balance of our system. The essence of legislative power, according to Federalist 78, is “will.” That is, in our republic, it is the duty of the Congress to direct our political course, within the boundaries set by the Constitution (and the law of nature). However, when the president only follows the laws he likes–and the parts of the laws he likes–his becomes the ultimate will in the system.
When “will” and “force” (the primary executive power) combine, they pose a special menace to liberty. Legislative will, to be just, must be expressed in general, forward-looking laws. Thus the Constitution explicitly prohibits both ex post facto (retroactive) laws and bills of attainder (which declare a given party guilty of a crime without trial–with penalty attached). Executive force, to be just, must be applied against specific offenders for past actions. When the same hands exercise both powers, however, the law easily becomes an instrument of force, used to target opponents with oppressive rules that are only ex post facto laws and bills of attainder by another name.
We know, at least in part, what this looks like from the Administration’s Obamacare contraceptive rules, its IRS abuses, its recent EPA greenhouse gas rules, and more. Obama apologists might counter that what has been gained in Progressive reform outweighs any harm done to American constitutionalism.
If the result of President Obama’s hegemonic presidency has not yet met the standard of monocracy, the general expansion of executive power on his watch has left threadbare the constitutional restraints on executive action. All that keeps the president’s “pen” and “phone” from making Congress superfluous is politics–the calculation that the American people are not yet ready for a king. Perhaps the same result is accomplished by bread and self-inflicted weekly circuses that conveniently distract the American people from realizing their constitutional losses. The upcoming mid-term elections offer us another good opportunity to reverse this trend by electing a Congress more inclined to check our hegemonic presidency.
David Corbin is a Professor of Politics and Matthew Parks an Assistant Professor of Politics at The King’s College, New York City. They are co-authors of “Keeping Our Republic: Principles for a Political Reformation” (2011). You can follow their work on Twitter or Facebook.