Mother Jones; Evan Vucci/AP; National Archives
Nothing could be more laughable than the claim of this Supreme Court to be originalist.
In July, the court reached a decision that the president has broad immunity for official acts. Justice Sonia Sotomayor, in a dissent, said the ruling meant “the President is now a king above the law.” This is far from what was stated in the beginning.
The originators of our government said that “We the People” are our country’s sovereign power. That is why the legislators, as the representatives of the people, are the only ones authorized to make law or make war. As James Madison said in Federalist 51, “In republican government, the legislative authority necessarily predominates.” The executive power, as the name indicates, just executes the law—or the war, or the policy—given it by the legislators.
In short, the president has to be single to make him accountable—entirely the opposite of what the Supreme Court now says about a president’s immunity from blame.
The framers were afraid of the presidency. They had overthrown one-man rule, which had filched from them their liberties: King George III did not have power by election but by heredity; did not serve for a term but for life; could not be removed but by revolution. Even when Americans altered these terms of executive power—the presidency is elected, not inherited; lasts for a set term, not for life; and can be removed by impeachment, not revolution—the framers of the Constitution did not like the look of any singular executive. They entertained ways to soften it. A plural executive, like the two consuls of ancient Rome? A president required to clear his decisions with a body of consultants, as some governors had to do with the American states?
Alexander Hamilton, in Federalist 70, said these were bad suggestions. He drew on the experience of his own state, New York, where the governor had to get approval from a council to make appointees. When this produced some scandalously bad appointees, investigators could not find what mistakes had been made, or by whom, in the appointment process. Thus “a plurality in the executive…tends to…destroy responsibility.” It is hard to impeach a council, or to sort out blame among several consuls. In the confusion of different people’s different actions, “how easy it is to clothe the circumstances with so much ambiguity as to render it uncertain what was the precise conduct of any of those parties.” In short, the president has to be single to make him accountable—entirely the opposite of what the Supreme Court now says about a president’s immunity from blame.
Where did we go wrong?
It all began with the Bomb.
It was developed by President Franklin Roosevelt in an unaccountable secrecy; dropped by President Harry Truman in an unaccountable secrecy; kept for use by all later presidents in an unaccountable secrecy.
Other wars had taken time for an enemy to develop logistical and other preparations, allowing for debate over possible responses. Now a Bomb could be dropped out of the blue, just as in Hiroshima. Response, with a reciprocating Bomb, had to be instant. Only one man can do that, unaccountably. Congress was out of the game.
When Truman wanted to ask Congress to declare war, so he could prosecute combat against Korea, Secretary of State Dean Acheson said it would be a bad idea to admit Congress controlled power over non-nuclear war, since that might encourage it to wonder about surrendering power over nuclear war. The era of presidential wars had begun—from President Lyndon Johnson’s non-war war as a “police action” in Vietnam, undeclared; to President Richard Nixon’s secret bombings of Cambodia, followed by his invasion of the country; to Bush-Cheney’s war in Iraq, with its accompanying web of secret prisons around the world for torture.
Nor was the secrecy reserved to war sites and action. An apparatus of surveillance and security clearances had to be deployed for the care and development of more nuclear bombs here and abroad, along with spying on our citizens and demands for proof of “loyalty.” The citizenry was being militarized. The title Commander in Chief, confined to the military in time of war by the Constitution, was now adopted by the rest of us, making the president “our Commander in Chief.” Military salutes, required of the military when in uniform, were now increasingly being traded with the non-uniformed president in peacetime as he descended from plane or helicopter.
The power of the president, born of the Bomb and fostered in secrete wars and preparations for war, was expanded by Reagan’s Attorney General Ed Meese, who had the president endorse his acceptance of laws with a “signing statement,” affirming which parts of it he would execute and which not—something that was later placed in the legislative record of each act. This turned the Constitution upside down, with the president making law for himself, rather than letting Congress do it. This was part of Meese’s theory of the Unitary Executive, which reads Hamilton’s Federalist paper with emphasis on the efficiency part and exclusion of accountability. According to this view, the president was not usurping the legislative power in his signing statement; Congress was usurping the presidential power in daring to make law in the first place. No wonder Meese stocked his Justice Department with the founders and promoters of the young Federalist Society, who, as one of them, Steven Calabresi, wrote, were “presidentialists” while their opponents were “anti-presidentialists”—as if claiming, “We are the Americans, and our critics are the un-Americans.”
The two Bush presidents nominated three Federalist Society members to the Supreme Court (Thomas, Roberts, Alito). President Trump nominated three more (Gorsuch, Kavanaugh, Barrett), making up the six-member majority that issued the new decision on presidential immunity. They are, indeed, presidentialists. But the framers were anti-presidentialists. They, like Madison, were republican legislativists.
Garry Wills is the author of Bomb Power: The Modern Presidency and the National Security State.