Federalist Project 16

“Creating the Presidency” and Federalist 71 – 74

In the heyday of what many call the “imperial presidency,” it is illuminating and perplexing to go back to the original debates surrounding the establishment of the chief executive and how limited the controversy was considering the relative heavy emphasis paid to the formation the House and the Senate, which the Founders considered the moral and practical core of a tripartite government. The framers were, of course, substantially influenced by their admiration for the separation of powers in their decision to position the president as a check on the lawmaking and tax-and-spending authority of the Congress, but they were also drawing from the quite weak executive frameworks of the prerevolutionary colonies and the states under the Articles of Confederation, many of whose governors were closely monitored by advisory “councils” much more powerful than today’s executive “cabinets”. The Virginia Plan debated in Philadelphia endeavored to strip all notion of “prerogatives” from the office of the presidency, “those badges of domination” (249). Clearly, the taste of an overextended monarchy was still sour in the mouths of the Founders, and they set things up to avoid the worst abuses of power they could imagine at the time. What’s amazing from a modern perspective is how narrowly they often imagined those abuses.

    In particular, Rakove notes a good deal of attention paid to whether or not “executive rights included matters of war and diplomacy”: were these considered aspects of administration? Congress – as a deliberative body – was a less convenient forum for negotiating the details of treaties and trade agreements and certainly a less efficient place to command and control the affairs of war. That much makes sense. The power of the purse was considered such a strong check on executive overreach that the framers of the Constitution could believe cutting off funds – or denying appropriations in advance – would present a sufficient bulwark against unilateral military action. There was a tactical angle to consider, too, as Rakove explains: “Though Congress could still exert great influence through its power of the purse, allowing it to make war (in the sense of directing operations) was another form of encroachment that would compromise the benefits of holding the president as responsible for the conduct of war as for the administration of war as for the administration of government” (263). But whether or not the executive branch has always observed proper decorum in informing Congress and seeking legislative consent in matters of war has been a subject of acrimonious debate ever since, certainly since World War II, the last time war was officially declared in the traditional sense. The dustup over President Obama’s decision to commit U.S. air power to NATO’s operations in Libya is only the most recent example of ambivalence in public understanding and attitudes about the separation of powers with respect to warmaking authority.

    Indeed, what conventioneers spent the most energy discussing were the basic parameters of the presidential office itself: method of election, reeligibility, length of term, the impeachment process, and council of revision (veto power). Robert Morris, in particular, made an eloquent case that the veto was necessary “to discourage or annul the passage of ‘unjust and pernicious laws,’ and to make the executive . . . ‘the guardian of the people, even the lower classes, agst. Legislative tyranny, against the Great & the wealthy who in the course of things will necessarily compose the Legislative body” (261). Morris could well be describing the ethos and strategy of Obama’s communications team in the recent debates about raising the debt ceiling with a “balanced package,” coded language for raising taxes on the wealthiest segment of society, and their urging lawmakers not to balance the federal budget “on the backs of the middle class, seniors, and most vulnerable,” language that reveals the deep roots of any notion of the president – even one called “corporatist” by progressive critics – as guardian-protector of the people.

    When the electoral college emerged as a compromise between the direct popular election and legislative appointment of the president, very little controversy or anxiety seemed to attach to its role in practice. In the late 18th century, when reliable roads were still a luxury in most parts of the country and telecommunications were limited to hand-delivered written correspondence, one can imagine how the electoral college came into view as a convenient way to marshal the opinion of disparate and distant voters in the body politic. Still, Rakove’s assessment is that “[t]he electoral college similarly owed more to the perceived defects in alternative modes of election than to any great confidence that this ingenious mechanism would work in practice” (267) Given the way the electoral college failed to deliver the same result as the popular vote in the contest between George W. Bush and Al Gore in 2000, we might wonder whether the invention has outlived its original ingenuity, as we’ve commented elsewhere. In any case, the genesis of the electoral college at the Convention of 1787 is another example of either how idealistic and trusting the document was in its literal content or just how poorly the contemporary U.S. fits its original intent. Perhaps it is both, after all.

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