Goldfarb and Protein Wisdom

Wednesday, June 4th, 2008

“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.

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19 Responses to “Goldfarb and Protein Wisdom”

  1. #1 |  adam s | 

    *not actually Goldstein.

  2. #2 |  MikeT | 

    It’s worth mentioning too that the unitary executive theory rests on a vision of the Presidency that is nearly identical to the pre-parliamentary monarchy in Britain, something that our founding fathers unequivocally rejected. Unitary executive advocates would have a better argument if they instead argued that it would be in keeping with original intent to argue for such powers in a case of unqualified emergency, such as a nuclear attack devastating half of the major cities and killing most of the body politic. Even then, it remains dubious as to whether or not the original intent would be to grant the President sweeping powers; in all cases, the President was intended to be bound by the law and constitution.

    One can also reasonably assume that were he alive today, Hamilton would find their interpretation of his words to be disgustingly out of context. It sounds to me like they’ve made a monarchist out of him, when in fact Hamilton was really just a proponent of a reasonably strong centralized government.

  3. #3 |  TheFlamingoKing | 

    Can’t argue with you there, Radley. It seems clear as day in this passage from Fed 70 that they are speaking of the difference between a unitary executive or executive leadership by committee (as we have in the other two branches).

    “That unity is conducive to energy will not be disputed. Decision, activity, secrecy, and despatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished.”

  4. #4 |  Nando | 

    That makes up my mind, right there. Now I’ve decided I won’t vote for McCain. I will try to convince as many of my friends and family as I possibly can to do the same.

  5. #5 |  Lee | 

    You don’t have to refer to Federalist papers to know that the argument of a “unitary executive” is absurd. Of course those that want a dictatorship are going to cite things that are favorable to them, spin them their direction, and ignore everything else.

    History shows that this country was founded on the idea of the opposite of the British crown, monarchies, etc. Centralization of power is what a lot of people fought against and died for, and they gave us this “new idea” of a country founded on principles of natural law and a government of the people by our consent. What has happened over the past 150+ years is pissing on the graves of those that gave us the principles on which this country was founded.

    Read the Constitution some time, and read the Declaration of Independence. It’s pretty clear what the Founders were angry about. The Constitution clearly says that funding for wars lies with the House, and the declaration of war must be reauthorized every 2 years (my memory could be wrong).

  6. #6 |  Jeff | 

    What’s interesting to me is that one of the reasons Hamilton cites for having a single Executive rather than a committee is that with a single executive we know who to blame for bad administration. Bizarre, then, that the same people who propose that the President should have near-dictatorial power over foreign policy also say that the President should be immune from censure by the legislature for his mistakes…

  7. #7 |  Cheerful Iconoclast | 

    You are using the term “unitary executive” incorrectly. The theory of the unitary executive deals with the issue of whether executive powers can be properly dispersed, as with “independent” administrative agencies. It’s about the nature of the executive power, not its scope. You can imagine a “unitary” executive who isn’t very powerful, or one with vast powers.

    The Yoo/Addington/Cheney theory, by contrast, is about the scope of the President’s power, as well as its nature. I think they are wrong in arguing, for example, that the President as Commander-in-Chief has the power to detain American citizens without trial or recourse to a writ of habeas corpus. But that’s not about whether the executive power is unitary; that’s about what the executive power is in the first instance.

    Now it so happens that, if you asked them, Cheney, Yoo, and Addington would undoubtedly argue for a very strong executive power vested in a single person — the President. (Unless Addington discovered some novel argument for vesting it in the Vice President.) Logically, though, those are separate questions. One can imagine a weak unitary executive or a strong executive power that is widely dispersed. The mere fact that John Yoo believes something does not make it false.

    As a libertarian, you really ought oppose attempts to marry the legislative, executive, and judicial powers within administrative agencies. And as a writer, you should use language with greater clarity.

    Given your professed beliefs, you really ought to support strict separation-of-powers principles, and that entails a unitary executive. Now, just to be clear, the Cheney/Addington/Yoo theory of what the President’s powers are is crazy. But there’s nothing at all crazy about arguing for a unitary executive who exercises the powers the President actually has.

    Could Congress, for example, give the President’s pardon power to the Attorney General? Turn conduct of an ongoing declared war over to a congressional committee? Require the approval of a commission of law professors before exercising the veto power? If you answer “no” to any of those questions, then at least to some extent you believe in the theory of the Unitary Executive.

  8. #8 |  Alex | 

    CI,

    That is EXACTLY the arguement Radley is making: “Federalist 70’s ‘unity’ argument was a call for one-man presidency, not a one-man government.”

  9. #9 |  Cheerful Iconoclast | 

    Fair enough, Alex.

    But if that’s the case, he ought not throw around terms such as “unitary executive” with such abandon. Because (if one accepts your interpretation), he too is an advocate of the Unitary Executive.

    Just one who is rather weaker than Yoo, Addington, and Cheney would have us believe.

  10. #10 |  Tokin42 | 

    Here’s a surprise, I disagree with most of that assessment, at least in regards to the role of the commander-in-chief. Reading Federalist Papers 68 through 74 you get the whole picture of Hamiltons view on the powers of the presidency especially as it pertains to the military. 74 starts off with:

    “THE President of the United States is to be “commander-in-chief of the army and navy of the United States, and of the militia of the several States WHEN CALLED INTO THE ACTUAL SERVICE of the United States.” The propriety of this provision is so evident in itself, and it is, at the same time, so consonant to the precedents of the State constitutions in general, that little need be said to explain or enforce it. Even those of them which have, in other respects, coupled the chief magistrate with a council, have for the most part concentrated the military authority in him alone.”

    Not only was it obvious to Hamilton, he believed it was obvious to everyone. Your quote from #69 was a portion of an entire piece regarding the nature, or character, of the presidency but even there I think it’s pretty clear what Hamilton was suggesting. When coupled with 70 and 74 it becomes very clear. The President has the absolute authority to control the military. The congress was relegated to providing resources and, probably the most important power, declaring war. I also agree with Hamiltons reasoning why one person should be in charge…

    Back to Federalist 70:

    “But one of the weightiest objections to a plurality in the Executive, and which lies as much against the last as the first plan, is, that it tends to conceal faults and destroy responsibility. Responsibility is of two kinds to censure and to punishment. The first is the more important of the two, especially in an elective office. Man, in public trust, will much oftener act in such a manner as to render him unworthy of being any longer trusted, than in such a manner as to make him obnoxious to legal punishment. But the multiplication of the Executive adds to the difficulty of detection in either case. It often becomes impossible, amidst mutual accusations, to determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures, ought really to fall. It is shifted from one to another with so much dexterity, and under such plausible appearances, that the public opinion is left in suspense about the real author. The circumstances which may have led to any national miscarriage or misfortune are sometimes so complicated that, where there are a number of actors who may have had different degrees and kinds of agency, though we may clearly see upon the whole that there has been mismanagement, yet it may be impracticable to pronounce to whose account the evil which may have been incurred is truly chargeable.”

    It is a whole lot easier if you believe a war is being mismanaged to replace one person, the commander-in-chief, than to have to replace an entire body of elected officials in order to change course.

  11. #11 |  Radley Balko | 

    #10 — I’m not sure you’ve outlined any areas where we actually disagree. I do think the president should be the person who runs the war–once it has been declared by Congress.

    But Bush & Co. are arguing that the president can take the country to war without first consulting Congress (Yoo has argued that a declaration is a mere formality), that only the president can end wars, and that the president can pull out of treaties that Congress agreed to. The founders (including Hamilton) were very clear about the dangers of investing the warmaking power in one man.

    There’s also the matter of how the Bush administration has defined the war on terrorism. If the president is all-powerful in wartime, and we’re in an indefinite war that extends into a borders, they’re essentially arguing that the president has infinite and unchecked power far into the foreseeable future, so long as he can find some way to tie a power he wants to national security.

    You don’t see anything wrong with that?

  12. #12 |  Tokin42 | 

    #10

    This is probably going to get me a lot of hate but I think the presidency (regardless of the party in power) has sole authority of the military at all times, not just in times of war. That would include sole authority for FOREIGN intelligence gathering, the handling of FOREIGN military prisoners, troop levels, tactics, etc. Everything except the authority to declare war, which I view as actually putting troops on the ground for any extended period of time.

    As far as treaties there is an alexander hamilton quote

    A treaty cannot be made which alters the Constitution of the country or which infringes any express exceptions to the power of the Constitution of the United States

    which kind of sums it up for me. IMO the constitution clearly gives the president almost sole authority on anything regarding the military and I think the holder of the office should step up and focus on one of the few jobs he actually has.

    We agree completely on the big picture, that the government was given very select powers and authority and they should stick to those without using them to find new ones all the time. In regards to control of the military however, I think there needs to be one absolute authority solely so we know who to blame/credit and, or as hamilton put it “charge”.

  13. #13 |  Tokin42 | 

    HA! I responded to myself because I was so excited Radley responded to a reply of mine. I felt special and got flustered, my last reply was obviously in response to the master.

  14. #14 |  Steve Verdon | 

    This is probably going to get me a lot of hate but I think the presidency (regardless of the party in power) has sole authority of the military at all times, not just in times of war. That would include sole authority for FOREIGN intelligence gathering, the handling of FOREIGN military prisoners, troop levels, tactics, etc. Everything except the authority to declare war, which I view as actually putting troops on the ground for any extended period of time.

    Weeelllll, so long as you aren’t counting things such as…

    To make rules for the government and regulation of the land and naval forces;

    To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

    To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

    There are definitely checks and balances even when it comes to the armed forces.

  15. #15 |  Tokin42 | 

    #14

    You’re right and I could have been clearer. I should have said congress has control of what amounts to, basically, resource management. How those troops are used and their methods of operations is reserved for the presidency.

  16. #16 |  Nando | 

    The payback for the neocons’ actions in giving more power to the President is that they’ll have to sit back for at least 4 years and watch the Democrats wield this power.

  17. #17 |  David | 

    We’ll see how happy these guys are with a king when the crown rests upon Obama’s head.

  18. #18 |  FWB | 

    The power to set the rules and regulations for governing the military rests with Congress not the President. The President is Commander in Chief but must follow the rules and regulations established by Congress (Article I, Section 8, Paragraphs 14-16), Congress provides all funding for “defensive” action, no allowance for offensive wars (Paragraph 1, Article I, Section 8), and the general funding and management of our land and naval forces (Article I, Section 8, Paragraphs 10-13).

    Ours is system of delegated powers not one of implied or assumed. Using the implied powers doctrine makes sections of the Constitution wholly unnecessary and “imples” the Founders had no idea what they were doing. Any interpretive scheme that causes one part of the Constitution to make another part superfluous or unnecessary is an invalid methodology (except in the case of amendments OF the Constitution wherein the direct action of the amendment is to override the existing Constitution authority).

    Please read Article II of the Constitution. The President is merely Commander in Chief NOT Decider in Chief. The Congress sets the rules for the regulation and governing of the military NOT the President. The President executes not determines.

    The Congress is delegated sole authority to declare war but that power does not allow for the suspension of any part of the Constitution (Ex parte Milligan) and by direct example, Article I Section 9, Paragraph 2. The power to “declare war” doesn’t even convey the authority to suspend habeas corpus. The authority to suspend something as basic as habeas corpus had to be explicitly granted because the power to declare war is not broad and all inclusive.

    If it’s not explicitly stated, it is not delegated. The branches of the government (created) being subordinate to the Constitution (Creator) may not define even one word of the Constitution. If one word may be defined, all words may be defined and the power and authority of the written constitution becomes meaningless.

    Sovereignty lies in the People. These elected officials are our servants NOT our leaders. They are to do our, The People, bidding not their own. We the People have failed to perform our part and have allowed these elected servants to steal authority that was never granted.

  19. #19 |  Anonymost | 

    If Richard Epstein’s a “leftist,” I’m guess I’m one, too.

    From wikipedia:

    Born in New York, he has written on a wide variety of legal topics, and is known for a generally libertarian approach to issues in legal theory. Epstein is well-known for his arguments against anti-discrimination laws, among other positions. At the Law School, Epstein is known for his cheerful, talkative manner as well as his confident views.

    Perhaps his most well-known work is Takings: Private Property and the Power of Eminent Domain, published by Harvard University Press in 1985. In that book, Epstein argues the government should be regarded with the same respect as any other private entity in a property dispute. Though Senator Joseph Biden denounced the book in Justice Clarence Thomas’ confirmation hearings, the book served as a focal point in the argument about the government’s ability to control private property.

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