A critique of Garrett Epps' 'The Founders' Great Mistake'

Epps, in his article ‘The Founders’ Great Mistake’, claims, “The challenge we face today is to find some advantage in Bush’s sorry legacy.”1 He argues, “Some of the problems with the Bush administration, in fact, have their source not in Bush’s leadership style but in the constitutional design of the presidency.”2 Although Epps acknowledges that, “They [The Constitutional Framers] were working in the dark, and they got a lot of things right,”3 he is severely critical of the speed with which the executive branch of government was created. This should be criticised, as it could be argued that the, “Strategy was simply to be vague, to leave the definition of terms and powers to be worked out in practice.”4 Leaving definitions to be worked out on the basis of practicality inevitably invites interpretation. Epps, for example, can be seen to take a rather ‘Madisonian’ approach to the role of the Presidency, and likens the unfavourable practices of Bush to the seemingly unfavourable and authoritarian ‘Unitary Executive’ Theory of Alexander Hamilton. The strength of the comparison between Bush and Hamilton, however, must be questioned. Rudalevige writes, “The historical narrative is animated not by how presidents used constitutional strength but how they sought to overcome constitutional weakness.”5 Perhaps the most effective way of measuring this is to analyse the President’s relationship with Congress. Congress “is the first branch of government and remains the actor with the most potential authority.”6 This is certainly taken into consideration by Epps, and drives one of his most convincing prescriptions. It sets out to clarify the differences between power that is delegated to the executive branch and power delegated to the legislative branch by the Constitution. Nevertheless, many of Epps’ prescriptions, particularly those regarding the expansion of the Vice President’s role, are controversial. They also reflect weaknesses in his criticisms of the Presidency, and thus are crucial to the debate concerning presidential authority.

Epps explains, with reference to Madison’s ‘Notes of Debates in the Federal Convention of 1787’, that, “The executive received surprisingly little attention at the Constitutional Convention in Philadelphia.”7 Perhaps greater deliberation on the executive branch of government would have produced a more specific and thus a more appropriate Article II, one which could not be subjugated. The reason for little attention being given to the question of executive authority, Epps explains, is Washington; “The man for whom the office was being tailored.”8 However, this would suggest a severe short-sightedness on the part of the Framers. The creation of the executive branch should be considered in relation to the legislative branch, which the Framers discussed at length. It should be said that the legislative branch was their primary concern. James, in ‘The Executive Branch’, finds consensus with Rudalevige when he says, “Article II was more open-ended- and by conventional rules of construction, intentionally so.”9 Therefore, it may be incorrect to propose that, “The office [of the Presidency] as we know it today bears so little relation to that prescribed by the constitution.”10

The brevity of the Article II ‘Vesting Clause’, which states, “The executive Power shall be vested in a President of the United States”11, is often championed as a work of genius, rather than “a flaw that would be quickly exploited.”12 President Franklin D Roosevelt, in his 1933 inaugural address, claimed, “Our constitution is so simple and practical that it is possible always to meet extraordinary needs by changes in emphasis and arrangement without loss of essential form.”13 The ambiguity surrounding what constitutes ‘executive power’ inevitably leads to varying interpretation, not exploitation. This is because the interpretation, to which the constitution is naturally subject, is restricted. To suggest the Framers would leave the executive branch entirely to be shaped by practical necessity is mistaken. Rather, the executive branch, and more specifically, the Presidency, is shaped by what the Framers did not want, as opposed to what they wanted. They strongly resisted any idea of monarchy. It could be argued of course, as it is by William Howell and Douglas Kriner, that, “Modern Presidents are put in a seemingly impossible position...the formal powers that the Constitution grants them are wholly insufficient to meet the task.”14 Hence, interpretation is necessary and must not be misconstrued as exploitation. When then, is it justifiable to claim that Article II has been exploited?

The ‘Modern Presidency’, Epps argues, “is primarily the intellectual handiwork not of ‘the Framers’ but of one Framer- Alexander Hamilton.”15 He explains Hamilton’s approach to the presidency as an authoritative one; this is where he draws his comparisons with the Bush Presidency. Epps states, “The president would be a monarch, Hamilton admitted, but an ‘elective monarch’.”16 However, is this really what he said at the Constitutional Convention in Philadelphia? According to a version of his speech, recorded by Robert Yates, Hamilton asked, “Pray, what is monarchy?”17 And then claimed, “These elective monarchs have produced tumults in Rome, and are equally dangerous to peace in Poland; but this cannot apply to the mode in which I would propose the election.”18 Hamilton realises the impracticality of placing a regent in the executive branch and is rather adamant about defining ‘The Real Character of the Executive’ against the British monarch. Federalist No.69 highlights this, “There is a total dissimilitude between [a President] and a king of Great Britain.”19 Weaknesses in Epps’ criticisms of the Presidency are highlighted by his interpretation of Hamilton’s ideas. Although it is possible to dismiss Epps’ idea that Hamilton wished to adopt a monarchy in all but name, it is important to recognise Hamilton’s desire to see the growth of, not an authoritarian executive, but certainly a strong one.

This notion of creating a strong executive branch is evident in his work. Writing his argument in ‘The Federalist No.70’, Hamilton states, “A feeble Executive implies a feeble execution of the government...all men of sense will agree in the necessity of an energetic Executive.”20 How much energy the executive should exercise is a question that arises from Federalist No.70 and it was not until the ‘Neutrality Proclamation’ that this would be intensely debated through practice.

Epps points to the first Pacificus essay as being, “The mother document of ‘Unitary Executive’ Theory that the Bush apologists have pushed to its limits.”21 The Pacificus essay was written in response to the ‘Neutrality Proclamation’. This is significant because it, for the first time, tests the executive branch of government through practice rather than theory; and it exposes tensions between indistinct roles delegated to Congress and the Executive by the U.S Constitution. Hamilton states, “The EXECUTIVE POWER of the Nation is vested in the President; subject only to the exceptions and qualifications which are expressed in the instrument”22 (Much of the same rhetoric was used by Theodore Roosevelt in his ‘Stewardship Theory’). Here he is suggesting a certain degree of flexibility and generality in executive power. Parallels can be drawn here between Hamilton and Bush because they are both concerned with, not only the extent to which they can use the inherent powers given to the executive, but, what those powers actually are. However, the extent to which Bush uses his inherent executive powers to pursue his own agenda vastly supersedes that which is prescribed by Hamilton. Rather it is Bush who, “existed, in effect, outside the Constitution,”23 as opposed to Hamilton. For instance, Joel Aberbach draws on a report from the ‘Boston Globe’ and explains, “George W. Bush has quietly claimed the authority to disobey more than 750 [provisions of] laws enacted since he took office, asserting that he has the power to set aside any statute passed by Congress.”24 Aberbach continues, “[He] had abandoned the constitutionally prescribed veto in favour of a more questionable method: the ‘signing statement’.”25 The crucial difference between Hamilton and Bush here, which is not taken into account by Epps, is the ‘extra tools’ available to President Bush which enable him to manipulate presidential powers, one such tool being the ‘signing statement’.

George W. Bush’s controversial leadership style was most frequently seen in how he chose to conduct foreign policy. It is perhaps when President Bush ignores Congress on these matters that Epps’ idea of the “runaway president”26 can be realised; and it is here where Epps’ prescription to define, with more detail, the President’s role as commander-in-chief is at its most powerful. Richard Pious observes, “Presidents may provide Congress with incorrect information, so that legislative authorisation itself is tainted. This was the tactic used by President Bush when he exaggerated the weapons of mass destruction threat from Iraq.”27 Rudalevige explains in ‘The New Imperial Presidency’, that after September 11th, “Congress had given him immense discretionary authority to act...[and] passed a joint resolution authorising President Bush to use ‘all necessary and appropriate force’.”28 This gave Bush a great amount of unitary power in a very broad sense. It should be acknowledged that this power was granted to him when the Republicans constituted a majority in Congress. This majority changed in the 2006 mid-term elections and, if Bush was to have continued his policies, arguably, he would have had to act unilaterally. Bush maintained, “I am the decider.”29 The act of giving false, or at least incomplete information to Congress illustrates that the President is able to use various administrative processes and regulations to his advantage. In another example, Hamdi v Rumsfeld (2004) the Authorisation for Use of Military Force (AUMF) allowed the executive branch to detain Yaser Hamdi without due process granted in the 5th Amendment and claimed, “The Executive determination that an individual is an enemy combatant is a quintessentially military judgement.”30 Thus, it is possible to agree strongly with Epps’ ‘runaway president’ criticism and sympathise with his prescription.

Epps states, “It should be made clear, for example, that the president’s powers as commander-in-chief do not crowd out the power of Congress to start-and stop- armed conflict. Likewise, the duty to ‘take care that the laws be faithfully executed’ needs to be clarified.”31 Although clarification is essential to legitimising presidential power, the idea that, “Article II should include a specific and limited set of presidential powers,”32 is debatable. It has already been argued that the brevity of the Constitution is a necessity. Rather, what needs to be defined more clearly are the powers delegated to the President by Congress, and the administrative processes that the President uses to exercise power need to be more closely regulated (for example, greater regulation of the AUMF or the War Powers Act in relation to foreign policy). The issue here is, as Rudalevige and Aberbach agree, that, “Congress has done little to protect its institutional position during the Bush years [and] describing Congress as ‘the broken branch’ seems more than justified.”33 Regulating the institutions through which the President can exercise power, and clearly defining what powers he or she can exercise significantly depends on having a proactive Congress.

Another of Epps’ prescriptions that concerns the powers of Congress is the idea that, “If the President was unwilling to assemble... a government, or unable to get congressional approval [during mid-terms], he would have to resign...a resigning president would be replaced by the Vice-President.”34 The difficulty with pursuing this idea, however, is not that it gives too much authority to Congress over the executive branch, but rather, it revolutionises the role of the Vice President and the Cabinet without enhancing the accountability or transparency of the executive branch. Richard Katz explains simply, “The vice-presidency is what the president makes of it.”35 While this remains true, it is difficult to understand how a Vice President, who has endorsed the President’s policies (and even helped in their creation), will be any more successful in their relationship with Congress, or forming a new Cabinet in order to sustain or implement similar policies. Matthew Dickinson, when discussing the reasons for going to war in Iraq in 2003, suggests, “Bush relied much more on the advice of political appointees, particularly the ‘neo-cons’ working in the Department of Defence and on Vice President Cheney’s staff.”36 It is difficult to see how Cheney’s policies would have differed from those of Bush had he been placed in office in 2006. Epps is against the idea of having extensive interregnum periods. If there was a possibility of the Vice President taking over the Presidency mid-term this would increase the number of interregnum periods; it is doubtful as to whether Epps would advocate a constant reshuffling of the executive branch.

Epps’ prescription regarding the interregnum proposes, “The president-elect (and the new Congress) should take office within a week.”37 He explains, “A shorter interregnum would force the creation of something like the British shadow cabinet, in which a candidate makes public the names of his key advisers. That would give voters important information, and provide the president with a running start.”38 It is indisputable that, if a Presidential candidate were to name his or her Cabinet before he took office, voters would be able to make more informed decisions. Arguably, this would also give the President’s mandate to push forward his administration’s policies greater legitimacy. If the President-elect was to name his Cabinet before entering office, it would encourage the President and his or her new Cabinet to deliberate on substantive issues that are important to voters. Wayne criticises elections by saying, “Most presidential elections do not provide a policy mandate.”39 Epps’ prescription for the interregnum period would meet Wayne’s criteria for a mandate to be established which suggests, “Presidential candidates must take a clear and compatible position on the issues, and people must vote for them primarily on these positions.”40 Although a shorter transition period may make the president more accountable to the people, its implications for Congress need to be considered. It is possible to say that choosing Cabinet members very shortly after an election puts a strain on the Senate as they would be given little time to confirm appointees. Could appointments be confirmed by the exiting Senate? Would this be fitting? If pressure is put upon a new Congress to decide whether Cabinet members are suitable or not, this will ultimately put more power in the hands of the President. This is not the only place where weakness can be seen in Epps’ interregnum prescription.

A flaw can also be seen with Epps’ prescription of a shorter interregnum period when analysing his criticism of the current transition method. Epps’ reasons for explaining the Presidential interregnum as, “A recurrent period of danger”41 stems from concerns over, not the selection of the new President’s Cabinet, but rather that the current President may misuse the interregnum period to his or her advantage, due to the lack of accountability. A shorter transition period may make it more difficult for the president to pass decisions unilaterally. However, Presidents, at the end of their term, still, “May issue controversial or corrupt pardons.”42

Donald Kettl in ‘Reforming the Executive Branch of the U.S Government’ explains, “The mark of the genius of America’s founders is not so much in the institutions they created...Rather, it is in the system’s remarkable ability to stretch, change and adapt- without breaking- as new problems present themselves.”43 I have suggested that Epps, by seeking to reform the structure of the U.S Constitution so dramatically, will compromise its great flexibility and dynamism. The Constitution is inevitably going to encourage interpretation and, as Richard Pious rightly states, “The Constitution never decided between the Hamiltonian and Madisonian approaches.”44 Epps explains that, “The ‘modern presidency’ is primarily the intellectual handiwork of...Alexander Hamilton.”45 Whilst it is possible to link the ‘Unitary Executive’ Theory of Hamilton to the practice of George W. Bush (especially with regard to foreign policy), the comparison is not exact; even Epps understands, “There is a difference between executive energy and autocratic license; between leadership and authoritarianism.”46 His criticisms are weakened by his interpretation of Hamilton. James makes a rather astute observation that, “Fundamental asymmetry is at the heart of the presidency’s historical development.”47 This is why measuring presidential power in relation to Congress is vital; this is something that Epps’ criticisms perhaps should engage in greater detail because it is here that Bush has exploited the Presidency. Thus, what is needed to amend the Presidency positively is not extravagant structural change, but instead greater attention must be paid to statutory law and institutions which the President uses as tools to exert unilateral power. This means a more active role needs to be played by Congress. In fact Epps’ prescription to clearly define inherent powers delegated to Congress and inherent powers delegated to the President may prove a valuable place to start. If these inherent powers were more closely regulated, then the need to shorten the interregnum period or replace the President after failing to gain support in mid-term elections would not be necessary; these prescriptions by Epps do little to make the Presidency more transparent and accountable. It is best to suggest then, as Rudalevige does, “The key [to balancing presidential power] is to marry energetic presidential leadership to the accountability enforced by the vigorous debate of legislators- and voters.”48 This can be achieved, not through reforming the U.S Constitution, but by checking those means by which ‘energy in the executive’ is exercised.

Bibliography

Aberbach J D; Peterson M A., ‘The Executive Branch’, (Oxford University Press, 2005)
Campbell C; Rockman B A; Rudalevige A., ‘The George W. Bush Legacy’, (Congressional Quarterly Press, 2008)
Constitution of the United States of America, Katz R., ‘Political Institutions in the United States’, (Oxford University Press, 2007)
Epps G., ‘The Founders’ Great Mistake’,
Hamilton A., ‘The Federalist No.69’, (New York Packet, March 14 1788),
Hamilton A., ‘The Federalist No.70’, (Independent Journal, March 15 1788),
Hamilton A., ‘Hamilton Writings’, (Library of America, 2001) Edited by Joanne B. Freeman
Katz R., ‘Political Institutions in the United States’, (Oxford University Press, 2007)
Pious R., ‘Inherent War and Executive Powers and Prerogative Politics’, Presidential Studies Quarterly, Vol. 37, No.1, (March, 2007), pp.66-84
Rockman B A; Waterman W R., ‘Presidential Leadership: The Vortex of Power’, (Oxford University Press, 2008)
Roosevelt, F D., ‘First Inaugural Address’, March 4 1933,
Rudalevige A., ‘The New Imperial Presidency: Renewing Presidential Power after Watergate’, (University of Michigan Press, 2006)

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