“Karl” at Protein Wisdom says I misinterpreted Michael Goldfarb’s blog post where he (incorrectly) argues that the founders intended the president to have “near dictatorial power in pursuing foreign policy and war.”
First, Karl says I took Goldfarb out of context. He says Goldfarb was referring only to the president’s power to direct the conduct of an already declared war. I think this is a naive reading of the passage that even Goldfarb would say is incorrect. Yes, Goldfarb may have been specifically referring to the installation of Gen. Petraeus, but he was using the occasion to make a broader point. It’s a point the Weekly Standard makes regularly: the president’s powers when it comes to war, foreign policy, and national security are nearly absolute. The explicit wording of Goldfarb’s passage says “pursing foreign policy and war.” That clearly implies broader powers than merely determining what sort of counterinsurgency tactics we’re going to employ. Moreover, Goldfarb links to Federalist 70 in the post. That’s the document neoconservatives and unitary executive theorists regularly and predictably fall back on when they’re arguing for enormously expansive presidential power.
Speaking of Federalist 70 Karl next faults me for not discussing it, given that Goldfarb linked to in his post.
Okay, then. Let’s talk about Federalist 70. It was written by Alexander Hamilton, and as noted, it’s a favorite founding document among proponents of the unitary executive. John Yoo refers to it often, as does Dick Cheney. It was heavily referenced in the 1987 GOP minority report on Iran Contra to make the absurd argument that selling arms to Iran then diverting the proceeds to the Contras in direct violation of Congress was a presidential power the founders would have looked fondly upon. It’s regularly invoked by the crowd who believes that when it comes to foreign policy, the president can do whatever he wants, whenever he wants, and there’s nothing the Congress and the courts can do about it.
It’s true that Hamilton was the most pro-presidentialist of the founding fathers. Of course, even if Hamilton did support such broad presidential powers, he was but one founding father, and we aren’t governed by the Federalist Papers, but by the Constitution.
But the thing is, Hamilton never intended the president to have anywhere near the powers Yoo, Cheney, David Addington and company argue for today. Karl too erroneously writes that Hamilton favored a unitary executive. He didn’t. Hamilton was the most pro-president of the founders, but even he never envisioned the “near-dictatorial” powers the likes of Yoo and Cheney argue for today. The unitary executive crowd has been taking Federalist 70 out of context for 20 years.
Hamilton’s argument in Federalist 70 for “unity” in the presidency in times of war was not an argument for “unity” with respect to the other branches of government. That is, he wasn’t arguing that the president should be able to ignore Congress, take the country to war as he pleases, unilaterally withdraw from treaties, or detain American citizens or residents without ever giving them a trial. Federalist 70 needs to be read within its historical context. It was written in response to suggestions at the Constitutional Convention that the executive office itself be a committee, not a single man. Federalist 70’s “unity” argument was a call for one-man presidency, not a one-man government.
It was not an argument in favor of the president being able to ignore the Congress and courts at will. And it certainly wasn’t a call to ignore the checks and balances that Hamilton and the rest of the founders worked so hard to hammer out and include in the Constitution. Really. Go read it. It’s blatantly obvious that Hamilton’s references to “unity” are only in the sense that he believes the executive should be a one-man office. Even the subtitle of Federalist 70 reveals as much. It refers to the “Executive Department,” clearly noting that the substance of the paper is addressing the internal workings of the executive branch, not the balance of power between branches.
So where did Hamilton stand on the balance of power on issues such as war and foreign policy. Look to Federalist 69, also written by Hamilton. It explicitly lays out the ways in which the American president would be inferior to a monarch or dictator.
The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies — all which, by the Constitution under consideration, would appertain to the legislature.
In fact, Hamilton goes on to argue that governors of states may arguably have more military power than the president. He then describes how the president would differ from the British monarch when it comes to treaties, noting that the king of Britain has the sole power to negotiate, sign, and retreat from treaties, while the president must first consult with Congress. He explains these powers to contrast them with the powers of the American president. Hamilton then concludes by, once again, contrasting the American president to the monarchy:
The one would have a qualified negative upon the acts of the legislative body; the other has an absolute negative. The one would have a right to command the military and naval forces of the nation; the other, in addition to this right, possesses that of declaring war, and of raising and regulating fleets and armies by his own authority. The one would have a concurrent power with a branch of the legislature in the formation of treaties; the other is the sole possessor of the power of making treaties.
What answer shall we give to those who would persuade us that things so unlike resemble each other? The same that ought to be given to those who tell us that a government, the whole power of which would be in the hands of the elective and periodical servants of the people, is an aristocracy, a monarchy, and a despotism.
[Emphasis in original]
You’d think Hamilton had made himself pretty clear, here. In fact, the entire purpose of Federalist 69 is to draw a sharp contrast between the American president and the British monarch. Such is probably why the unitary executive crowd so rarely mentions it. Instead, they routinely cite Federalist 70 wholly out of context, and in direct contradiction to everything else the founders wrote about the presidency at the time.
But don’t take my word for it. Here’s that notoriously leftist legal scholar Richard Epstein, as quoted in Charlie Savage’s book Takeover:
…Richard Epstein, a conservative law professor at the University of Chicago who embraces originalism, said Federalist 69 shows that the administration’s legal theory is “just wrong.” He called the presidentialists’ failure to acknowledge the essay “scandalous” because it is one of the most important records of the Founders’ views on the balance of power between Congress and the commander in chief. “How can you not talk about Federalist 69?” he said. “All you have to do is go on Google and put in ‘Federalist Papers’ and “commander in chief’ and it pops up.”
Karl’s point about Goldfarb being a communications guy and not a policy advisor is well-taken. My point wasn’t that Goldfarb would be a huge influence on McCain. My point was that we can tell a lot about what policies a candidate is going to embrace by what staff he hires. Presumably, a candidate who’s emphasizing foreign policy as much as McCain wouldn’t hire someone for that senior a position if he had strong objections to Goldfarb’s own views on foreign policy–and presumably, if that were the case, Goldfarb wouldn’t accept the job. In other words, the hiring of Goldfarb gives us some insight into McCain’s views on executive power. If you’re a presidentialist, you’re probably happy with the hire. If you’re skeptical of presidential power, as I am, the hire doesn’t bode well.
NOTE: I originally attributed the Protein Wisdom post to Jeff Golstein, that site’s proprietor. It was actually written by a co-blogger who goes by “Karl.”
NOTE II: Via the comments (and email), I should clarify: There’s some confusion about what “unitary executive theory” actually means. In general it means the president should be in charge of the executive, and no one else. How that plays out in actual policy depends on who’s using the term, and what they’re advocating for. Unitary executive theory has been used to argue that a president should be free to dismiss cabinet heads at will (a good thing), to argue against the appointment of independent counsels (I’m undecided, here), and to argue that Congress has no power to end wars, or prevent the president from pulling out of treaties, using signing statements to express your intent to ignore laws passed by Congress, and so on (all bad ideas). There’s nothing wrong with unitary executive theory if the executive you’re arguing the president should have complete control of is limited to its proper scope. The problem is that the biggest proponents of unitary executive theory also believe in an expansive executive with powers the president was never intended to have.
So when I wrote in the post that Hamilton was opposed to a unitary executive, that’s not quite right. He’d have supported the idea that the president and only the president be in charge of administering the executive branch. He’d have opposed giving the president the powers many people today who cite Hamilton are saying Hamilton intended the president to have.