Agreg Interne 2008 composition: copie 3

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Dissertation 2008 : The risks of caesarism (livrée telle quelle !)

Note obtenue : 15,5

'The whole history of the American government is one of trying to figure out what executive power actually is", wrote professor of political science Andrew Rudalevige, in his book The New Presidency. What the Framers intended when they wrote the articles of the Constitution was to set up a system of checks and balances, so that none of the three branches of government - executive, legislative, judicial - could seize more power than the others. Yet, as Rudalevige highlighted, they were not precise enough in defining the powers of the president, and the phrasing of Article II of the Constitution has given way to much debate ever since, all the more since as the world evolved, so did the role of the president.
In 1933, when President F.D. Roosevelt was sworn into office, an era of growth of the presidential power began, marked by a succession of presidents who reshaped their institution by juggling with their own historical contexts. This growth did not come naturally, but as a result of breaks and collisions with the two other branches, mainly through foreign policy, until the presidency was elevated to such power that it could pose a threat of caesarism. Still, in a democracy where the separation of powers prevails, what are the chances that a president could hold all of the executive power, dominate the legislative and judiciary, and make unilateral decisions, without a check on his imperial tendencies ? Or, in other words, does the system of checks and balances work, or is the Constitution outdated ?

According to author and historian A. Michelot, the Constitution was written to limit the excesses of executive power. The role of the president was mainly to execute the laws, and govern, as a rule, with the advice and consent of the Congress. When President Roosevelt began his first term, in the context of the Depression following the 1929 Wall Street Crash, he was supported by Congress, which passed most of his New Deal laws, but faced opposition at the Supreme Court, which rejected five of his laws as unconstitutional. His attempt at 'packing the court' by passing a law that would have allowed him to appoint six extra justices at the Supreme Court - one justice for each Supreme Court justice over seventy and a half years of age - failed and made him lose support in Congress. It was only when he became a wartime president, with the beginning of World War II after the attacks on Pearl Harbor, that Roosevelt increased his presidential power both in foreign policy and domestic policy, on grounds of national emergency. He created more than a hundred federal agencies by executive orders and came to gain power at the expense of Congress. He led the way for his successors.

Political historian Arthur Meier Schlesinger, who exposed his theory of imperial presidency in the 1970s, summed up the powers of Congress in three categories : the power to make war, the power of the purse, and the power of oversight and investigation. Being limited by the Constitution, the executive power could only grow by overstepping on the two other branches, using foreign policy as a plank. With President Truman sending troops to Korea without congressional approval, President Johnson using the Gulf of Tonkin Resolution as a precedent to send troops to Vietnam without a formal declaration of war from Congress, the legislative branch lost the first of its powers, the war-making power. The context of the Cold War, then the Gulf war, then President G.W.Bush's "War on Terrorism" allowed the successive presidents to use foreign policy as a means to control domestic policy, declaring national emergency to justify more control from the executive. The fact that the executive branch is the best informed on matters of intelligence and foreign affairs makes it easier for the White House to manipulate Congress and bend it to its will, as happened for instance when Congress passed the Iraq Resolution according to evidence presented by the White House that Iraq was sheltering weapons of mass destruction. It is remarkable indeed that there has been no formal declaration of war from Congress since World War II, and that most of the so-called wars since then were launched by the executive, sometimes prior to a congressional resolution as was the case with Truman or Johnson, and later President Nixon as well.

In contexts of national emergency, the aggrandizement of presidential power is often made at the expense of Congress, but also at the expense of civil rights or individual liberties. While President Roosevelt increased his control of domestic issues through his federal agencies, President G.W. Bush, at the other end of the XXth century presidential spectrum, used the Patriot Act 2001 to diminish individual liberties by allowing federal agencies such as the National Security Agency to wiretap American citizens in contact with foreign individuals, to read private mails and to search alleged terrorists' houses without a warrant, considering it a prerogative of his inherent presidential powers as head of the executive branch.

With the swearing-in of President Nixon in 1968, Congress also lost the power of the purse. Nixon used impoundment as a strategy to retaliate when Congress passed a law he disagreed with. In this manner, he managed to seize more power for himself, but this strategy did not become a feature of modern presidency, contrary to the use of foreign policy for the expansion of presidential powers. However, if foreign policy can elevate a president, it can also undo him and decrease his powers in domestic policy. Despite the fact that foreign policy is often at the forefront of the growth of presidential power, only two presidents were experienced in this field when they came to power : Nixon, who had been Eisenhower's vice-president, and G.H.W. Bush, who had led the Central Intelligence Agency. Thus, President Johnson's 'Great Society' policy, which was of sorts a continuation of the New Deal, did not survive the disaster of the Vietnam War. Likewise, foreign policy does not suffice to maintain an incumbent president in power when his domestic policy is unpopular : President G.H.W. Bush's successful Desert Storm operation was not enough to win him a second term, because he broke the promise of his campaign, he broke his mandate. His slogan : "Read my lips : no new taxes" was his undoing after a recession forced him to contradict himself and raise new taxes, under pressure from Congress.

Therefore, it would seem that the growth of presidential power sprang mainly because of the evolution of foreign policy in a new world context. By gaining more power and disrupting the constitutional order, as Schlesinger wrote, the president upsets the balance of powers until he poses the threat of becoming imperial, and governing like Caesar. Yet it is not the presidential institution itself that causes such disruption, but the interpretation each president gave to his role. Here lie the risks of caesarism.

If presidential power has grown and evolved since 1933, it has done so without continuity, but according to the personality of the occupants of the White House. Political scientist Mr Lowi underlined in his theory the extreme personalization of the presidency, and its increasing isolation. When people rely more on the person and less on the institution, when presidency evolves towards a unitary executive where all the executive power is vested on the president, then the risk of caesarism surges : like Caesar, the president may be tempted to govern unilaterally, oblivious to the advice and consent of Congress, to the constitutional limits set by the Supreme Court, in a context greatly facilitated by the evolution of the world.

The president of the United States is elected nationally and is the symbol of the unity of the nation. Contrary to Congressmen who work in committees and mostly in silence, the president is exposed to the media both nationally and internationally. Diplomacy has evolved since Roosevelt : modern presidents travel more easily, and as far as foreign affairs are concerned they are often, with other members of the executive branch, the only interlocutors with other countries. There is indeed a contrast between Roosevelt who invited Congressmen to sign the Bretton Woods agreements, and Eisenhower who signed fifty executive agreements with foreign countries without congressional knowledge. The size of the Executive Office of the President has grown accordingly, as has the role of vice-president.

President Roosevelt was the first to personalize the presidential institution, when he gave his "fireside chats" on the radio, forming a direct link with the American people. The media have been the main instrument of presidential personalization, and their increasing influence over the last decades has greatly contributed to shape a new presidency. It is no coincidence that President Johnson, who was little loved by the press, declared : "our greatest mistake may have been our inability to communicate with the press and the television, with the communication media". The mistake cost him part of his popularity. Some presidents personalized the institution so much that they gave no other choice to their successors than continuity or total break-up. Ronald Reagan, the Great Communicator, was after all an actor who used the media as a tool to gain popular support and turned the "State of the Union Address" into a show, inviting national heroes and symbolic figures to the White House gallery and televising his speech. He was the first, but not the last : President Clinton used his "State of the Union" speech to launch his premature campaign for reelection. President Kennedy, before them, had given such an image of glamour and popularity to presidency that he was nicknamed "the marketed president" by some critics, who also criticized the influence of the wealthy Kennedy family in his campaign during the primaries.

Presidency is also personalized because candidates tend more and more to campaign through television and advertisements, putting the man at the forefront rather than the party. In this context it is easy for a candidate to feel like a crowned emperor rather than the head of an institution. This confusion of roles does not concern only the American people : when the Republicans in Congress voted a motion to impeach President Clinton, they judged the man, not the president, going so far as to accuse him of attempting a diversion when he retaliated in Lebanon after terrorist attacks. Many political historians described this attempt at impeachment as a political mistake which damaged the presidency. This personalization of presidency came together with increased powers, each president using their own tools to gain still more room for manoeuver. Roosevelt and Eisenhower made a large use of executive agreements and executive orders. President Truman, using the Korean war as a pretext of national emergency, seized the steel mills when the steel industries threatened to go on strike - this would have consequences on the war -, claiming inherent powers as the commander-in-chief and president. Those 'inherent powers' are not explicitly mentioned in the Constitution, but some presidents have used the claim, referring to the fact that they have sworn to protect their country. And while the Supreme Court ruled in favour of the steel industries, declaring it unconstitutional for the president to seize private property, the justices did not determine explicitly whether the 'inherent powers' were constitutional, or not.

More recently, pushed by attorney John Yoo and former White House member of staff Samuel Alito, President G.W. Bush has been using signing statements "to quietly expand presidential power", as law professor Christopher Kelley puts it. While before G.W. Bush only about a hundred signing statements had been issued by his predecessors, since his first term there have been more than seven hundred. Signing statements explain how a president wishes to implement the laws that Congress has passed, and are tantamount to law-making themselves. The most telling example is the signing statement G.W. Bush issued about the McCain Amendment, which prohibited torture and had been passed as an answer to alleged torture in the Guantanamo Bay prison : in this signing statement, the president declares that he shall 'construe the law' according to his powers as commander-in-chief.

Therefore this exposed role in the media, and the various tools at the disposal of the White House to bypass the decisions of Congress, added to the fact that the modern president is the institution rather than part of it, have dramatically changed the role of presidency since 1933 and made the president emperor in fact if not in name, if one follows Schlesinger's definition of presidential imperialism. Nevertheless, another power has risen, parallel to the presidency : the power of the judiciary. Yet is this power enough to maintain the checks and balances ? Or should the Constitution evolve with the role of the president ?

As the symbol of unity, when the President is strong, so is the executive branch. But for Congress, the reality is different : since Roosevelt there have been several instances when Congress has reacted to the increase of presidential power, but often the reaction came late, and was sometimes ambivalent. After President Nixon seized the war-making powers and the power of the purse, and added to this a secretive tendency by not providing Congress with information about foreign affairs, Congress was slow to retaliate, and only did so after the Watergate scandal had weakened Nixon. They passed the War Powers Act of 1973, but its contents only confirmed that the president could bypass Congress : the text stipulated that the president had to notify Congress within sixty days, when he used armed forces. Therefore he did not have to ask for their consent. The Case law, passed in the wake of Nixon's resignation, was likewise ambiguous : it concerned executive agreements and also gave a delay to the president. By these two laws, Congress failed to reclaim their power. The most successful piece of legislation passed to limit the power of the executive might be the Twenty-Second Amendment, which bars the president from seeking a third term : this amendment was voted after President Roosevelt's four terms, and effectively cuts any will of caesarism at its root, the only perspective for a president being a possible second term, so eight years at the presidency. This also makes the second term of a president a "lame duck", as it weakens his position and his policy-making. The second check on the possible tendency to caesarism would be the divided government : in the last few decades, it has almost become a norm. Truman experienced it with the 80th Congress : he tried to govern against Congress, and failed. Clinton found a compromise with the triangle strategy, using Republican themes even if he was a Democrat, but it only led him to clash once the budget was at stake and the line-item veto declared unconstitutional by the Supreme Court. A divided government might be a sufficient balance to an increased presidential power provided it is united. If President Johnson enjoyed "a string of legislative triumphs", in the words of Lewis Gould, during the first two years of his presidency, it was because the opposition party found it difficult to oppose the continuing policy of a slain president - Kennedy. And the Republicans failed to impeach Clinton for lack of votes because they were not united.

Yet is the law sufficient to dampen the ambitions of a would-be Caesar, when such presidents as Nixon and G.W. Bush for instance have a unilateral reading of the Constitution ? President Nixon once declared : " If the president does it, that means that it's not illegal", and President G.W. Bush thirty years later : "I'm the decider". Since 1933, the power that has limited the presidential power the most is the judicial branch, gaining more power in parallel until reaching a role of referee in the tensions between the president and Congress. In some instances it could not be the referee : the rejection of Bork's nomination to the Supreme Court by President Reagan, who hoped to place a famously conservative justice in the seat of a moderate one who was the swing vote of the court, Lewis Powell, or the controversy and heated debate around the nomination by President Bush of Justice Clarence Thomas, for example, provoked tensions and inner conflicts between Congress and the White House which could not be eased by the judicial power.

It is remarkable to note that the executive branch has the power to appoint judges, and that a president can influence lastingly the judicial power by appointing judges who are in favour of his policies, and who are appointed for a lifetime, greatly exceeding the presidential limit of two terms. If Caesar can appoint his judges, then who will put a limit to his powers ? The nominations sometimes backfired, as when President Eisenhower appointed judge Warren, thinking he was a conservative, and later complained about it and called this "the biggest damned fool mistake I ever made". Indeed, the Warren court in the 1960s reshaped the role of the Supreme Court by pushing for civil rights rather than limiting itself to interpret the Constitution, giving to the judicial branch a role at the forefront of the country, when it was rather in the background before. Roosevelt also tasted the end of his reign when his court-packing plan failed, but regained his lustre by becoming a war president.

The court sometimes made decisions to limit presidential powers, as with Truman in the steel industries case, or in US v. Nixon where the justices rejected the claim of executive privilege made by the president and ordered him to hand over the tapes concerning the Watergate Scandal. It also declared the line-item veto unconstitutional, depriving President Clinton and his successors of a useful strategy to influence the power of the purse of Congress by vetoeing mere items of the budget instead of the budget as a whole. However it failed to rule about the constitutionality of the claim of inherent powers, and never rejected explicitly the notion of executive privilege, allowing a breach through which many presidents quietly passed. Nevertheless, with its decisions in the Rumsfeld v. Padilla case, in the Hamdan and the Hamdi cases, the Supreme Court recently limited the powers of President G.W. Bush. Bush was using the Ex Parte Quirin decision, made under President Roosevelt, as a precedent to set military trials for "unlawful combatants" in Guantanamo Bay. He also denied an American citizen accused of being a terrorist the right to file for a habeas corpus. In the three cases, the Supreme Court ruled against the presidential claim. However, as said earlier, Bush then used signing statements as a means to expand the limits that had been set to his power.

Therefore, although the Constitution set limits and checks and balances to prevent caesarism, they are sometimes insufficient to contain the modern presidency ambitions and context. If the Constitution is not outdated, or amended sufficiently, then it may be that to limit the growth of presidential power, the two other branches need to work together, or need to act rather than react. The more power the president claims, however, the more isolated he becomes; when he is at the top, only popular support can keep him there.

The Framers of the Constitution had foreseen the thirst for power of the executive branch and had wished to create a separation of powers that would limit the expansion of presidency. They had foreseen that the checks and balances would keep each branch in its place. But they had not foreseen that the world would change, and become suddenly much smaller. With World War II, Roosevelt used foreign policy to increase his power, and paved the way for his successors. The presidential power grew by upsetting and disrupting the other two branches, until the personalization of the institution led to a risk of caesarism, and to an increasing isolation of the presidency. The two branches that were supposed to keep the executive branch in check failed to anticipate its move and acted only by retaliation. Yet by gaining strength as a caesar, the president weakens his support, and if history is any judge a strong president is often followed by a Congress united in opposition. And then, possibly, then emperor collapses, as Reagan who plummeted in his approval rate when the Iran-Contra scandal was revealed ; and if not the emperor, then the empire. The risks of caesarism are limited : if not by Congress and the Supreme Court, they are limited by time. The years to come will say if the Constitution resists time, or if the tendencies to unitary executive have brought an end to the United States as all the Americans know it.