Sunday, April 1, 2007

The looming constitutional crisis between the White House and Congress is not the result of allegedly imperial pretensions on the part of the president, but rather the result of an inclination inseparable from the very nature of legislative power. The fact is, as Alexander Hamilton put it in “The Federalist,” the people’s representatives in the legislature “seem sometimes to fancy that they are the people themselves” and thus “betray strong symptoms of impatience and disgust at the least sign of opposition from any other quarter.” They take such opposition to be nothing less than “a breach of their privilege and an outrage to their dignity.”

Confronted by such institutional impudence as a president actually presuming to exercise his own constitutional powers, Congress can always be expected to live up to the Founders’ worst fears. The reason the Framers so carefully crafted their scheme of separated powers was their fear not of executive overreach but of “legislative usurpations.” They had no doubts that history had shown time and time again the undeniable and unhealthy “tendency of the legislative authority to absorb every other.” That is why James Madison was so famously blunt in his unblinking assessment. “The legislative power,” he warned, “is every where extending the sphere of its activity, and drawing all power into its impetuous vortex.”

No small concern of those who created the Constitution was the prospect of legislative tyranny, the exercise of power for illegitimate purposes carried out in the name of the majority. But that was not the only concern. The exercise of the legislative powers within the states had convinced such statesmen as Hamilton and Madisonthat,left unchecked, those powers would also lead to “incurable disorder and imbecility in the government.” As they sought to bolster the powers of the nation as opposed to the states, they were committed to not introducing such chaos as they had seen below.

And they knew that the fundamental cause of such legislative incompetence, imbecility and tyranny as they had witnessed was the result of there being no real executive power to keep the legislature in its place. They had little doubt as to what it would take. The office of the executive had to be the constitutional preserve of a single person where there would be “power in a single hand.”

The legislature, by its very nature, must be a deliberative body characterized by “differences of opinion, and the jarrings of parties.” It is, by design, intended to produce an open and thorough consideration of the pressing issues of the day. Debate, not “promptitude of decision,” is the end sought. This is just the opposite from the executive branch. In the office of the president, the ends sought are not openness and debate but “decision, activity, secrecy and dispatch” — all the qualities a numerous assembly can never have.

The Founders understood that there is often a dangerous gulf between the momentary inclinations of the people and their true and permanent interests, a gulf that cannot be bridged by the legislature. That body cannot be depended upon to resist “every transient impulse” or “breese [sic] of passion” which may infect public opinion. The most it is likely to do is to register that pernicious opinion and act upon it.

That is why the executive, the sole elected representative of all the people, must always be in a position “to dare to act his own opinion with vigor and decision” in order to serve “the interests of the people when they are at variance with their inclinations.” With the political line now having been drawn in the constitutional sand by Congress, President Bush finds himself in the happy company of the Founders who understood that good government depended upon an executive that would not only be independent, but also energetic and powerful.

When Congress undertakes to confront the president over the prerogatives of his office, as it is now doing, it is essential that it be well understood that when it comes to the rightful exercise of his powers that there need be no “unbounded complaisance in the executive… to the humors of the legislature.” Indeed, the president is obligated by his very oath to stand firm. Constitutional independence is not political imperiousness. Acquiescence is not leadership.

Gary L. McDowell is the Tyler Haynes Professor of leadership studies, political science and law at the University of Richmond.

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