The Return of the Imperial Presidency?

Jonathan Alter believes the NSA domestic spying flap and the Alito hearings demonstrate that the country is “in danger of scrapping our checks and balances—not just for a few years (as was done during the Civil War), but for good.”

What if we faced a constitutional crisis and hardly anyone noticed? As he quietly mastered the tiresome cat-and-mouse game inside the Senate Judiciary Committee last week, Judge Samuel Alito gave few hints of where he stood on a matter that goes to the heart of what it means to live in a republic. With a few exceptions, the media coverage didn’t help. It’s so much easier to talk about Joe Biden’s big mouth or a right-wing Princeton alumni group or Mrs. Alito’s tears than to figure out how the country should prevent a president of the United States from castrating the United States Congress.


…the nominee’s “no person is above the law” platitudes did not suffice. Alito endorsed a famous 1952 concurring opinion from Justice Robert H. Jackson that the president’s power is at its “lowest ebb” when he operates without congressional authority (the case involved whether President Truman could seize steel mills during the Korean War). But we never heard whether the brainy New Jersey jurist believes (like Bush) that the Constitution entitles the president to break the law in wartime.

Remember, this is not about whether it’s right or wrong to wiretap bad guys, though the White House hopes to frame it that way for political purposes. Any rational person wants the president to be able to hunt for Qaeda suspects wherever they lurk. The “momentous” issue (Alito’s words) is whether this president, or any other, has the right to tell Congress to shove it. And even if one concedes that wartime offers the president extra powers to limit liberty, what happens if the terrorist threat looks permanent? We may be scrapping our checks and balances not just for a few years (as during the Civil War), but for good.

Former attorney general Nicholas Katzenbach has similar thoughts. Reflecting back on abuses of federal power during the 1960s against civil rights leader Martin Luther King, Jr., he writes,

Today we are again engaged in a debate over wiretapping [We’re not wiretapping. -ed.] for reasons of national security — the same kind of justification Hoover offered when he wanted to spy on King. The problem, then as now, is not the invasion of privacy, although that can be a difficulty. But it fades in significance to the claim of unfettered authority in the name of “national security.” There may be good and sufficient reasons for invasions of privacy. But those reasons cannot and should not be kept secret by those charged with enforcing the law. No one should have such power, and in our constitutional system of checks and balances, no one legitimately does.

Forcing the executive to explain its reasons for intrusive law enforcement is essential to maintaining not just privacy but freedom itself. A congressional committee must exercise oversight. So too must an independent court because Congress is also subject to possible political pressure.

Our freedom is too precious, and too much blood has been shed to preserve it, to entrust it to a single person, however sincere and however well intentioned.

But, how exactly are we in this danger? The president asserts that he has certain extraordinary powers during wartime. Fine. But Congress is getting ready to have hearings on the matter and, as alter acknowledges, the federal courts will almost certainly be hearing the case soon.

During the Civil War, the Supreme Court recognized Abraham Lincoln’s ability to lay aside certain constitutional protections during national emergencies. Other rulings in subsequent wars buttressed that view. They also limited it, as in the case of Truman’s attempt to force striking steelworkers to return to work.

Unless President Bush intends to ignore the outcome of Supreme Court decisions and congressional hearings–and there is zero evidence that this is the case–where is the crisis?

FILED UNDER: Congress, Intelligence, Law and the Courts, Supreme Court, Uncategorized, US Constitution, , , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. The crisis is in the fevered conspiratorial minds of those who refuse to accept the will of the people as expressed through our quadrennial plebiscite.

  2. Anderson says:

    I think the problem is media fatigue in the face of a stubborn enough presidency. Bush doesn’t openly defy Supreme Court decisions; they’re just construed in a ridiculously narrow manner, as with Hamdi.

    Similarly, the McCain Amendment was a rare shot across the administration’s bow; Bush pretended to accept it, and then made clear in his signing statement that he considers the laws to be purely advisory as far as he’s concerned.

    And where’s the public outrage? Yawn. Do whatever you want to those brown people, just keep us from getting blown up.

    The only solution is for Bush to piss off the other branches of gov’t enough that they go to town on him. Very unlikely, with Republicans controlling the Supreme Court and the Congress.

  3. M1EK says:

    The ‘crisis’ is that this is no longer a war, if it ever was. We never declared war; and what we’re now calling a ‘war on terror’ could quite conceivably stretch on forever, which puts to lie the ‘it’s a temporary expansion of power during a national emergency’ argument.

  4. LJD says:

    Andersen- I suppose there’s no credit for feeding, providing medicine, or building hospitals, schools, an economy, for ‘those brown people’, especially considering it’s ‘those brown people’ creating most of the explosions…

    M1EK- that crisis, providing military assistance without declaring war, began with our involvement in the U.N. and reaches far beyond Iraq.

  5. Anderson says:

    Right, M1EK. It’s the permanent nature of the “war” that’s so uncannily Orwellian.

    LJD, we did not invade Iraq to provide schools and hospitals, and had the president proposed that as our motive, he would’ve been laughed out of town. Indeed, as you’ve seen at OTB, we’re cutting our funds for such activities (having let them be robbed on a grand scale).

    My point is that so long as Americans think it “those brown people” being detained for years on no legal basis, or being spied upon, then there won’t be any political cost for Bush. It stops being funny, they say, when it starts being you.

  6. DaveD says:

    OK, Congress is getting ready to have hearings. I also hope there will be public questioning of those legislators who were briefed on this program so that we can decide whether their present incredulity is consistent with the recorded notes taken during the briefings at which they were present.

  7. Bithead says:

    These newly discovered civil libertarians would be a lot more trustworthy, had they been screaming this song during the Clinton Mis-administration. As it is, they invariably supported Clinton… and are now arguing against a Republican. Tell me this isn’t a polititically motivated vent… and tell me about the rabbits, too.

  8. Anderson says:

    Bithead, remind us of Clinton’s FISA violations? Of his AG’s coming out & declaring that the Executive was violating FISA? Links, please.

    Dave D, I too look forward to hearings, which will hopefully resolve whether this is a teapot tempest or something else.

  9. bryan says:

    The only solution is for Bush to piss off the other branches of gov’t enough that they go to town on him. Very unlikely, with Republicans controlling the Supreme Court and the Congress.

    Actually, I think you’re assuming quite a lot. Supreme Court justices are no more likely to kowtow to the administration of a Republican than a Democrat. They have big egos, and are not very likely to let judicial power be usurped by the executive just because it’s an elephant in power.

    You seem to miss the simplest explanation for whatever bugaboo that is eating at the left: the Supreme Court (5-4 lot of them) don’t find whatever has been happening particularly unconstitutional.

  10. Steven Plunk says:

    We are far from abandoning our checks and balances. Until both sides of the argument go head to head we have no clear winner. The Bush administration and congress haven’t really duked it out over something of real importance. When that happens we will see where we are at.

    If one wants to talk about the loss of checks and balances why focus on war time activities of the administration? The more appropriate time is pre-9/11. If there has been any drift toward an imperial executive branch it is in the daily running of government. The rule makings handed down by various agencies based on general enabling statutes passed by congress.

    Many times (if not most times) these administrative rules go beyond congressional intent but are not quite bad enough to warrant a re-visit by congress to reign in the overreach.

    This happens at all levels of government and is truly the most severe threat to our liberties.

    Tapping my phone doesn’t really affect me the way local school boards, city councils and the like can make my life miserable.

  11. Herb says:

    Attention Everyone:

    I want you all to know that you should not disagree with Anderson. He has let everyone know that he is the Worlds foremost authorty on the Supreme Court, The Constitution, Foreign Policy, All Matters of State and everything Legal.

    Gods Anderson, I didn’t realize that you also have an inside to the White House and know it all about Bush.

    I bet you never say “Oh My God”. You say “Oh My Me”

  12. Boyd says:

    I see Anderson believes that we would have reacted differently if the terrorists came from Germany, France, Belgium, Norway, etc.

    You don’t tend too lie to yourself so much, Anderson. What happened this time?

  13. LJD says:

    Many reasons for going to Iraq. One of which was freedom of the Iraqi people from a dictator that denied them access to food, shelter, and medical care. More funds would be available, and more troops available to provide and distribute aid, if those ‘brown people’ would stop blowing it up.

    Your ‘slippery slope’ argument doesn’t fly either. People aren’t detained or ‘spied-upon’ because they’re brown. More likely because they are making suspect calls to the M.E. while transferring questionable amounts of money, while researching bomb-making on the internet. Unless you’re a civil libertarian concerned about your right to gather bomb-making materials and case-out subway stations and airports, then you have nothing to worry about.

    Remember, it’s not the ‘evil Bush Administration’ making the investigations. It’s your fellow Americans working 24/7 to keep you safe.

  14. ICallMasICM says:

    ‘so long as Americans think it “those brown people” being detained for years on no legal basis’

    You can always count on supposed liberals to project their own racism. It’s not the color, it’s the terrorist murder.

  15. Barry says:

    charles austin: “The crisis is in the fevered conspiratorial minds of those who refuse to accept the will of the people as expressed through our quadrennial plebiscite. ”

    Not true. I don’t recall a single ad by the Bush campaign which stated the ‘unitary executive’ theory, or that he could nullify a law with a signing statement.