A Libertarian Vision for the Presidency

In its long march toward full-​spectrum dominance of American life, the American presidency has become both absurd and menacing. Our political culture has invested the office with preposterously vast responsibilities and, as a result, the officeholder wields powers that no one fallible human being ought to have.

In his 1956 book The American Presidency, political scientist Clinton Rossiter outlined ten roles that the modern president was expected to fulfill. Four of them are actually in the Constitution. Among other things, the president is the “Manager of Prosperity”—he sits up in the cockpit of the national economy twiddling knobs and dials to create jobs and spur economic growth. He’s the “World Leader,” responsible not just for American security but also for the spread of democracy abroad, and the “Voice of the People,” as Rossiter describes it, “the moral spokesman for us all.”⁴

Modern presidential candidates promise all those miracles and more. On the campaign trail in 2008, then-​senator Barack Obama pledged, among other things, to provide “a cure for cancer in our time,” to “slow the oceans’ rise,” to deliver “a complete transformation of the economy,” and, perhaps most quixotically, to “fundamentally change the way Washington works.” In 2016, candidate Donald J. Trump rhapsodized: “I will give you everything. I will give you what you’ve been looking for, for 50 years. I’m the only one.”⁵ In one of his less controversial tweets that year, Trump promised that, if he won, “all of the bad things happening in the U.S. will be rapidly reversed!”⁶

It all adds up to a remarkable vision of the presidency. No longer a limited constitutional officer charged with faithful execution of the laws, the president is now responsible for all things great and small: the state of the national soul, the price of a tank of gas, and freedom all around the world. He’s our Guardian Angel, our Shield against Harm, and America’s Life Coach, as well as the Supreme Warlord of the Earth.

That vision is fundamentally incompatible with limited constitutional government. With great responsibility comes great power. When we demand that the president provide seamless protection from natural disasters, economic dislocation, and terrorist strikes, we shouldn’t be surprised when presidents seek powers to match those daunting expectations.

On the home front, our presidents increasingly rule by executive order and administrative edict, deciding what your health insurance covers, who gets to enter the United States and who gets to stay, and what rules govern free speech disputes and sexual assault claims on every college campus in the country.

You may not be interested in the presidency, but the presidency is interested in you. After the terrorist attacks of September 11, 2001, presidents seized staggering new surveillance powers. The call-​records program that Edward Snowden revealed in 2013 was just the tip of the iceberg. The National Security Agency is currently sweeping up vast amounts of Americans’ private, domestic communications—email, texts, and phone calls—that happen to transit abroad. And the president’s war powers have become practically uncheckable: he can add new groups and individuals to the Predator drone kill list—and even launch thermonuclear “fire and fury”—virtually at will.

In short, the modern presidency is a constitutional monstrosity and a libertarian nightmare. Given the enormous power the president has over American life and liberty, we’d forget him only at our peril.

“It was not always so,” George Reedy observed in his 1970 classic The Twilight of the Presidency. During his boyhood in Chicago five decades earlier, Reedy recalled, mayors, city councilmen, and even ward bosses had much greater name recognition than the occupant of 1600 Pennsylvania Avenue. That was because local officials “had a direct bearing on our daily lives; the president did not.” A summer trip to Washington, DC, during the Coolidge administration made Reedy “the only child in the neighborhood who could identify the president—and few of my classmates really cared.”⁷

Reedy’s generation would witness “the emergence of the presidency as the center of national life.” By midcentury, it had become routine for Americans to refer to the presidency as “the most powerful office in the world,” and the president as the “leader of the free world.” Our first president used a far more modest title: most often, George Washington referred to his post as that of “chief magistrate.”

The Framers never envisioned the president as “the leader of the free world”; he wasn’t even supposed to be America’s national leader. The Federalist Papers understood the Constitution “to establish an ‘anti-​leadership system,’” constitutional scholar Peter Lawler observes, structured to resist the impositions of innovations proposed by leaders.”⁸ The Federalist opens and closes with warnings about the dangers of popular leadership: “Throughout history, those who have destroyed republics began by flattering the people,” Publius cautions in the first essay, and he raises the specter of “the military despotism of a victorious demagogue” in the last.⁹

The men who designed the Constitution didn’t believe in what Teddy Roosevelt would later call the “bully pulpit.” The very idea of a president claiming a special mandate to speak for the people, pounding the podium and rallying the masses behind his agenda, was anathema to them. Part of the president’s job, as they saw it, was to resist public pressure. Rather than comply with—or fan—“every sudden breeze of passion” or “transient impulse which the people may receive from the arts of men, who flatter their prejudices to betray their interests,” the president was supposed to “withstand the temporary delusion, in order to give them time and opportunity for more cool and sedate reflection.”¹⁰

Hard as it may seem for 21st-​century Americans to imagine, in the early years of the republic, the prevailing norm was that the president was mostly supposed to keep his mouth shut. From Washington to Jackson, presidents gave about three public speeches a year on average and rarely presumed to dictate to Congress.¹¹

The president had a limited public role—and limited powers. Congress was the prime mover on national policy; the president’s responsibility was to take care that the laws were faithfully executed and to slap Congress back with the occasional veto when it slipped its constitutional bonds. In foreign affairs, the president had the power to “repel sudden attacks,” but no authority to launch them.¹²

In the original design, the office could hardly be called imperial. In Federalist No. 69, Alexander Hamilton answered the charge that the presidency contained the seeds of monarchy by going through a side-​by-​side comparison between the powers and responsibilities of the British king and those of the American president.¹³

For example, the fact that the British king “not only appoints to all offices, but can create offices” revealed “a great inferiority in the power of the President,” who cannot. Further, the king is head of the national church; the president has “no particle of spiritual jurisdiction.” The king can start wars; the president cannot. Yes, the president has the role of “commander in chief,” but as Hamilton explains, that just means he’s the “first general and admiral” of U.S. military forces. And generals and admirals don’t get to decide whether, when, and with whom we go to war.¹⁴

There were hints of the modern presidency to come in some of the 19th-​century presidencies: Andrew Jackson showed that the president could be a popular leader, claiming the “mandate of the people” as a whole. James K. Polk showed that the president could use the army to start a war and then get Congress to go along. Abraham Lincoln exercised vast emergency powers during the Civil War.¹⁵ But for most of the century, the constitutional center held, the tide receded, and we returned to forgettable presidents who lacked the power and ambition to inflict great harm.

In 1888, the British academic and member of Parliament James Bryce endeavored to explain “Why Great Men Are Not Chosen Presidents.” In large part, it was the nature of the job. Englishmen assume that the American president “ought to be a dazzling orator, able to sway legislatures or multitudes,” Bryce noted, but they forget that

The modern presidency isn’t nearly so simple and unassuming. Over the course of the 20th century, the president’s powers and duties expanded in ways that effaced nearly every distinction Hamilton drew between the American chief executive and the British king. Today, like monarchs of old, the president can “create offices”; in fact, “since the end of World War II, presidents have unilaterally created over half of all administrative agencies in the United States,” using the power of the pen to spawn new government bodies “that would never have been created through legislative action” and designing those agencies in ways that maximize presidential control.¹⁷

America lacks an established church, but contemporary public intellectuals variously describe the president’s role as “a center of moral authority,” the “high priest and chief unifier” of the American civil religion—even our “theologian in chief.”¹⁸ And “commander in chief” has become far more than a military title; modern presidents have the power, if not the legal right, to initiate war.

What brought this transformation about? There’s no single cause: our expanding presidency is depressingly overdetermined. Presidential scholars have identified a host of factors, among them increasing economic complexity coupled with a perceived need to “stabilize an industrializing society,” technological changes that shrank the distance between the president and the people, and America’s increasing role on the world stage.¹⁹

America’s rise to superpower status played a key role in the presidency’s transformation. “War is the health of the state,” Randolph Bourne’s famous aphorism has it, but Bourne could just as easily have written, “War is the health of the presidency.” As America stepped out on the world stage, the “chief magistrate” increasingly became a domineering commander in chief.

Changes in broadcast technology also contributed to the presidency’s growth. Through radio and then television, presidents acquired a sort of “electronic bully pulpit.” It was easier for them to go “over the heads” of Congress and speak to the American people directly, the better to accumulate power. One of Franklin D. Roosevelt’s early fireside chats urged Americans to “tell me your troubles”—and they did. A man named Ira Smith was head of the White House mail service for five decades, beginning in the McKinley administration. As late as President Taft’s term, Smith ran the shop all by himself, getting maybe 200 letters a week. Early on in FDR’s first term, he got more than 5,000, and soon found that he needed 50 people to answer all the requests for help.²⁰

“Although no one realized it at the time,” George Reedy observed, in the midst of the New Deal, “something else had happened. The American people were now conditioned to look to Washington for help when they were in trouble.” FDR “made the presidency a living reality to Americans and began the period when the White House became the focal point of the nation’s social, economic, and political life.”²¹

But structural explanations can lead us to downplay the role of ideology. Ideas about the presidency’s proper function changed radically throughout the 20th century and helped produce an office radically different from the one the Framers designed. The Progressives of the late 19th and early 20th century got the process started with a sustained critique of Madisonian checks and balances and the modest presidency envisioned in the Constitution. As they saw it, the president’s job was to move the masses, uniting them behind reformist crusades at home and abroad. The New Republic’s Herbert Croly captured the Progressive vision of the presidency when he described Teddy Roosevelt as “a sledgehammer in the cause of national righteousness.”²² And the Progressives took advantage of three great crises—World War I, the Great Depression, and World War II—to fundamentally reshape the office.

The Imperial Presidency is a bipartisan creation, however; the right would help complete the presidency’s transformation. Midcentury conservatives had originally stood athwart the activist presidency, yelling “stop!” After FDR’s 12-​year reign, conservatives in Congress championed the Twenty-​Second Amendment, limiting presidential terms. Most of the intellectuals who coalesced around William F. Buckley’s National Review in 1955 associated powerful presidents with activist liberalism: with New Deals, New Frontiers, and the Great Society.

But by the early 1970s, the “emerging Republican majority” in the electoral college seemed to promise that conservatives would hold the presidency more often than not. And conservatives liked the sound of that. By Ronald Reagan’s first term, they’d developed a legal rationale—unitary executive theory (UET)—designed to give the president broad unilateral powers. Initially, the idea was that he’d use those powers for good, to ride herd on overzealous regulators and rein in the bureaucracy. But by the second Bush administration, and in the wake of 9/11, UET became shorthand for claims that were far less defensible: that simply by waving the bloody flag of “national security,” the president could override legal prohibitions on torture, the Foreign Intelligence Security Act, and other laws validly enacted by Congress.²³

Then–vice president Dick Cheney used to describe the Bush administration’s mission as “leaving the presidency stronger than we found it.” Mission accomplished: the Bush administration dramatically expanded presidential power, and not just in areas like surveillance and foreign policy. In his last month in office, Bush unilaterally ordered a multibillion-​dollar auto bailout just days after Congress voted the program down.

Barack Obama—who as a candidate pledged to “turn the page on the imperial presidency”—took those powers and expanded them still further. As president, Obama launched two undeclared wars—in Libya and against ISIS—and defied the limits imposed by the 1973 War Powers Resolution on the novel theory that you’re not engaged in “hostilities” if the foreigners you’re bombing can’t hit you back. Bragging that “I’ve got a pen and I’ve got a phone,” in his second term, Obama increasingly governed by executive order and even invented a presidential power of the purse, allowing him to spend billions of dollars Congress never appropriated.

Both presidents warped the authorization for use of military force that Congress passed three days after 9/11 into a sort of enabling act for permanent presidential war. Obama left office as the first two-​term president in American history to have been at war every single day of his presidency. In his last year alone, U.S. forces dropped more than 26,000 bombs on seven different countries—a tally that President Trump blew past a mere nine months into his tenure.

It’s probably the case that “utopia is not one of the options,” as a Libertarian presidential candidate once put it.²⁴ Our task then isn’t to imagine a world utterly transformed, but to imagine something better: a federal executive less overbearing, less ubiquitous and menacing, and better constrained by law—a world in which one can, for hours or even days at a time, afford to forget that the head of the national government exists.

Is such a thing possible? Writing in the wake of Watergate, political scientist Aaron Wildavsky posited, “The importance of Presidents is a function of the scope of government; the more it does, the more important they become.”²⁵ Reducing the scope of government is a valuable project in its own right, one that would also help reduce executive power. But is it essential to the latter project?

If we look abroad, we may learn that other developed countries with large state sectors suffer somewhat less than does the United States from the problems of one-​person rule. On that front, parliamentary systems seem to offer distinct advantages over presidential ones.

In a pioneering 1990 article, “The Perils of Presidentialism,” Juan Linz argued that presidential systems, which encourage cults of personality and foster instability, are especially bad for developing countries.²⁶ Subsequent studies have bolstered Linz’s insights, showing that presidential systems are more prone to corruption, more likely to suffer catastrophic breakdowns, and more likely to degenerate into autocracies than parliamentary ones.²⁷ Building on Linz’s work, in 2014, George Mason University’s F. H. Buckley found that, even in developed democracies, “presidentialism is significantly and strongly correlated with less political freedom.”²⁸

Political scientists Tom Ginsburg and Aziz Huq observe that parliamentary systems “seem to have more effective instruments for maintaining accountability and checking efforts at charismatic populism,” among them, the parliamentary practice of Prime Minister’s Questions, in which the chief executive is regularly and ruthlessly grilled by the opposition.²⁹

Parliamentary regimes may also do a better job of restraining executives’ proclivity for launching wars. That’s a counterintuitive claim: after all, under British law, the prime minister has the prerogative to use military force without specific parliamentary approval. But in practice, it is “politically inconceivable that the government would proceed with the use of troops if Parliament actually disapproved.”³⁰ After a Syrian chemical weapons attack in 2013, for example, when the United States and the United Kingdom contemplated punitive airstrikes against the Bashar al-​Assad regime, then–secretary of state John Kerry kept insisting that “the president has the power” to wage war “no matter what Congress does”; but when the House of Commons rejected military force, his counterpart across the pond, then–foreign secretary William Hague, simply said, “Parliament has spoken.”³¹

Moreover, presidential regimes invite executive dominance by combining the roles of “head of state” and “head of government” in one figure, making the chief executive the living symbol of nationhood—the focal point of national hopes, dreams, and fears. That combination encourages presidents to imagine themselves the living embodiment of the popular will. The president “becomes the focus for whatever exaggerated expectations his supporters may harbor,” Linz writes, and in turn may “conflate his supporters with ‘the people’ as a whole.”³²

If any developed country has enshrined the “right to ignore the president,” however, it’s Switzerland. The Swiss constitution rejects the unitary executive in favor of the Federal Council, seven members elected by the two legislative chambers jointly; the president, who serves for a single 12-​month term, is selected from that seven-​person body. He or she is not the head of state but merely “first among equals.”³³ “In practice,” as one scholar put it, “the Swiss President is the most inconspicuous chief of any republican state.”³⁴ Ordinary Swiss citizens may not even be able to name the current officeholder—although, in 2014, a photo of then-​president Didier Burkhalter waiting alone at a train station, without bodyguards, went viral on Twitter (sort of: 800 retweets).³⁵ Is it entirely a coincidence that Switzerland routinely places near the top in various rankings of greatest places to live?³⁶

Short of adopting a parliamentary system—or the Swiss constitution—what can be done to get the American presidency back to its proper constitutional size?

The most radical reform proposals in recent years challenge the very concept of the “unitary executive.” University of Chicago professors Christopher Berry and Jacob Gersen have argued for a “partially unbundled executive,” in which separately elected officers are given executive power over discrete policy areas. Most American states have “special-​purpose executives”—treasurers, state auditors, and independent attorneys general, often separately elected, who help keep the chief executive in line. Perhaps a divided executive, containing several independent officers that the president can’t easily remove, would do a better job of protecting individual liberty than a unified one.³⁷

One way to break up the executive monolith is to free the attorney general from service at the president’s pleasure. Writing in the Yale Law Journal, William P. Marshall makes the case for an independent federal attorney general, either elected or appointed, with a fixed term of service, shielded from removal except for cause. That actually reflects the American norm almost everywhere but the federal level: 43 states elect their attorneys general separately.³⁸

Short of convincing the body politic to undertake radical constitutional surgery, can anything be done within our existing constitutional structure to relimit the presidency? In theory, yes: legal scholar Charles Black once commented, “My classes think I am trying to be funny when I say that … Congress could reduce the president’s staff to one secretary … [and] put the White House up at auction.… [But] these things are literally true.”³⁹

If Congress has the legal power to sell the White House, it certainly has the ability to defund unauthorized wars, rein in unauthorized spying, stop unauthorized spending, and reclaim the power to make the laws Americans have to follow. Any number of worthy “framework” statutes, with strained acronyms, have been proposed toward those ends: the REINS Act (Regulations from the Executive in Need of Scrutiny) requires a vote on major regulations before they become law; the SCRUB Act (Searching for and Cutting Unnecessarily Burdensome Regulations) applies a base-​closing commission approach to repealing swaths of the Federal Register. In the Cato Handbook for Policymakers, I’ve provided further suggestions for strengthening the War Powers Resolution and reining in presidential adventurism abroad. But even the best-​designed reforms depend on the political will to make them happen: a Congress that doesn’t flee from responsibility, a voting public that won’t let them get away with it.

We’re not there yet; but external pressures may, in the coming years, make it easier to rein in some of the national security powers the executive branch has accrued. America’s increasing global role in the 20th century and its unrivaled supremacy after the collapse of the Soviet Union helped drive the Imperial Presidency’s growth. The 21st century will likely see the reversal of that process, and, as John Glaser points out in this volume, retrenchment is a common response to relative decline. The emergence of new powers could encourage the United States to behave more like a normal country in the international sphere. That in turn could help enable a shift to a more “normal” presidency.

Moreover, the mystique of the presidency has taken a well-​deserved hit in recent years. Americans today are finding it increasingly difficult to look upon the presidency with anything but revulsion. In 2016, we suffered through an electoral contest between the two most widely reviled and distrusted major-​party candidates in American political history.

Say what you will about the winner of that contest, but he’s done impressive work undermining the notion that the presidency is a center of “moral leadership.” No president in living memory has been nearly as vocal about his contempt for legal limits, publicly broadcasting his desire to throw them off to millions of followers on a Twitter feed that’s like the Watergate tapes unspooling in real time.

It took a couple of repulsive, abusive, power-​hungry presidents—Lyndon Johnson and Richard Nixon—to generate the support for post-​Watergate reforms that began to rein in the Imperial Presidency. If there’s ever going to be a “teachable moment” on the dangers of concentrating too much power in the executive branch, we seem to be living through it right now.