Timing may not be everything, but it can certainly help. Just as we observe President Barack Obama audaciously making unilateral changes to the key law that he prevailed upon Congress to pass, Graham Dodds has published a most timely book. The subject of unilateral presidential directives (UPD) may sound rather dry and unexciting to the uninitiated, but Dodds uses it to explain a great deal about presidential power.
Scholars have long been perplexed about the American presidency. When established it was an unprecedented institution. Indeed the Constitution is rather vague about the office. It does confer some specific powers on the president, but the source of his political strength is two ambiguous clauses plus a lot of intangibles. It is those intangibles that have kept presidential scholars busy for well over a century.
One thing that is clear from the Constitution and The Federalist Papers is that the Framers were fearful of allowing too much power to be concentrated into too few hands. Despite that intention, the presidency has expanded in scope and power, especially during the past century. Indeed one early presidential scholar had described the history of the presidency as “a history of the aggrandizement of power.” As a result, many presidency experts became concerned that the excessive concentration of power was causing the intricate system of checks and balances to become unbalanced. Arthur Schlesinger, Jr.’s, The Imperial Presidency illustrates that type of concern. After Richard Nixon's overreaching culminated in the Watergate scandal, it seemed that his successors had become mindful of the dangers and thus began to comport themselves more modestly. Yet many of the earlier fears were revived during George W. Bush's tenure.
Whether one dates the so-called modern presidency from Franklin D. Roosevelt, as is quite common, or from Theodore Roosevelt, as Dodds does, there is no doubt that the power, importance and centrality in the system of the presidency has expanded substantially and in numerous ways. Presidents have a tendency to test the limits of their power. When they are not opposed effectively, they create a precedent of the expansion of power. These expansions are cumulative, so that for quite some time the vaunted checks and balances of the Framers have not been in balance. Of course, there are examples where Congress or the Supreme Court, the two bodies that should act as counterweights to an expanding executive, has resisted successfully. But those examples have not arrested the general trend, which is quite apparent during the present administration.
Why have the barriers to the expansion of presidential power proved to be insufficient? One key reason is that the two branches that are supposed to keep the president in check have not been up to the task. Congress, in particular, is where one would anticipate the strongest opposition to presidential expansionism. But that body is so mired in its complex procedures and arcane rules that it is unable to organize itself to do the job. Moreover, given that the president is the leader of his party, it is hardly surprising that his congressional members will defer to his priorities, goals and methods. Consequently, as Dodds notes, Congress simply appears to be uninterested in challenging the president. As for the Supreme Court, it has been a more effective check than the legislative branch, as Richard Nixon would surely have attested. All scholars of American politics can point to high profile cases that have indeed limited the exercise of presidential power. But Dodds stresses that such cases were the exception and that the Court has gone along with the expansion of federal government power under presidential leadership.
Another reason for the enhancement of the president's position is that the growth of the role of the United States in terms of world leadership and the necessity to use military force during the past century has necessitated presidential action in areas that constitutionally are disposed to presidential dominance.
Dodds emphasizes that under such circumstances UPD's become a valuable presidential tool that has not been effectively challenged. The resultant growth of presidential power worries him, but he does not offer the reader much reason to expect that the process will be reversed, concluding simply that it is up to the people. However, bearing in mind that usually the president has been elected by a majority of the people and that he wants to reward his voters, is it reasonable to expect the people to bring the presidency under control?
Over the long run we can anticipate further presidential attempts to expand the reach of the office. Congress appears to be unable to get its act together while the citizenry can be kept onside by various rewards. That leaves the Supreme Court. It does have the capacity to arrest the excessive growth of presidential power. Alexander Hamilton thought that the judiciary had neither force nor will, only judgment, at its disposal. Will that be enough?
By compelling readers to address such questions Dodds is performing a vital service and doing so in a stimulating manner that is anchored in careful and thorough scholarship.
