Hello! Hello! Hello! Welcome to episode 40 of We Don’t Talk About P-word. This week, we continue to explore, “What’s the matter with our government?” We will conclude our discussion of the Presidency. 
The last two weeks have been dedicated to the executive. With this now third episode, we have focused more on this branch than the other two. That is because the Executive is key to a political reset. The Presidency is the only at-large, federal office determined by all the People. It is the sole representative in the federal government that can give the People a voice. That voice would be loud enough to make a difference. (You can learn more about a political reset in episode 6, Bloodless Revolution.)
This week, our conversation will be about the Imperial Presidency . I have laid out three issues that sent us down the path we are currently walking. George Washington paved the way for a combative versus cooperative government. We have been electing Presidents incorrectly for over 200 years. Last week, we began to discuss how the Presidency has seized too much power. That power isn’t compatible with our system of checks and balances. That power lessens democracy. 
This is the subject of this week’s chat. This week, we will highlight the President’s power.
For most, the term imperial president will bring to mind Richard Nixon. Many would consider him the first President who abused his power. Throughout the last two episodes, I have shown you that isn’t exactly the case. Most historians track the imperial presidency back to Harry Truman. I am here to tell you it has been going on longer than that. It includes Abraham Lincoln, both Roosevelts, and even Thomas Jefferson. All are guilty of seizing power that wasn’t explicitly theirs. You could make the argument that every President who has served has taken a little more power each time. 
Journalist Paul Starobin defines the imperial presidency “…a structure in which enormous discretionary power to respond to national security crises and perceived dangers is concentrated in the office of the president.”
The Imperial Presidency is a term coined in 1973 by historian Arthur Schlesinger. It comes from his book The Imperial Presidency. Here, he charts the disgrace of President Richard Nixon. He shows how it grew from the Founders to what it became. 
He also reminds us that, like partisanship, it’s our fault. We let it happen. Congress let it happen. The Supreme Court let it happen. The media let it happen. Schlesinger says  even those who knew better failed us.
He wrote in his book “It must be said that historians and political scientists, this writer among them, contributed to the rise of the presidential mystique.”
But if Nixon is the nadir (he is not). Where does it all begin? 
The idea of an imperial president was defeated (definitively) at the Constitutional Convention. But that is exactly what we got. The modern president would make Alexander Hamilton giddy with excitement. He and John Adams wanted to elect a president for life, contingent on good behavior, of course.
The powers the President has accumulated would give our Founders pause. Over time, the President has become more and more king-like. That is exactly what they were looking to prevent. 
Admittedly, the times have changed as well. We were an isolationist nation for quite a while. After World War II, we emerged as a superpower. The Cold War. The Cuban Missile Crisis. Korea. Vietnam. The Gulf War. Acts of terror. Crisis after crisis. We need a president who can act quickly without the pesky oversight of Congress. Yes, this world would be quite alien to them. Still, they would be horrified that we have given such powers to the president. All because... democracy is hard.
Starobin doesn’t even think Hamilton would approve. He refers to the modern presidency as “the age of Hyper-Hamiltonianism.” Those who subscribe to the idea of the all-powerful president are neo-Hamiltonians. It’s very appropriate. 
They are the ones that think but don’t say things like this. “Well, when the president does it, that means that it is not illegal.” Well, they don’t say it anymore. This is a direct quote from a televised interview of Richard Nixon. You can damn well know they still think it.
I often think of Jefferson’s Louisiana Purchase as the first time a president claimed power. It was basically ignored because no one disagreed with the result. Jefferson worried that he was acting on a power not allowed by the Constitution. And that’s how power gets ceded. That’s how power becomes power. 
Andrew Jackson was a little more blatant. He would veto legislation and then bully congressmen to control the legislature. He sent troops to South Carolina to intimidate future Vice President John Calhoun. In private, he threatened to hang him. He even strong-armed Congress to ensure Martin Van Buren’s ambassadorship. Van Buren would succeed Jackson as President. 
John Tyler would secretly prepare to send troops to defend Texas from invasion. Texas was a pseudo “independent republic” in rebellion against Mexico at the time. The Senate rejected his annexation treaty, so he pushed for a joint resolution. For the first time, but not the last, territory was annexed unconstitutionally. The same process would be used in 1898 to annex Hawaii. (You can learn more about that in our Hawaii series. The treaty is discussed in episode 30 Disenfranchised Natives.)
Albert Gallatin served in the House and Senate. He served as a Diplomat and Treasury Secretary for two presidents. He saw that action for what it was. “…an undisguised usurpation of power and violation of the constitution.”
Tyler taught his successor well. James Polk would not only prepare to send troops, he would send them. They weren’t sent for defense; they were sent to provoke. They were ordered into the disputed area between Texas and Mexico. Mexico, defending its territory, would attack US troops. This would plunge the US and Mexico into a de facto war. This effectively circumvented Congress. Up until Polk, executive privilege was used sparingly. Polk would rip that band-aid off. His response was, “If you want documents come and get them with impeachment.” Still, it remained rare. Sadly, today, we have proven even impeachment doesn’t ensure Congress gets documents.
Abraham Lincoln would claim powers in a crisis to ensure the union endured. He became the first president to declare a national emergency. He suspended habeas corpus. 
Woodrow Wilson would assume control of shipping. He did this to ensure supplies reached Europe during World War one. 
During the Great Depression, Franklin Roosevelt would close banks. After Pearl Harbor, he would intern Japanese Americans on the west coast. 
And on and on it goes… 
Presidents would often send troops without official Congressional approval. It rarely happened without their knowledge. Usually, it occurred with vocal or indifferent approval. Troops were sent in defensive capacities, not offensive. The aggression began at other’s hands, even if our troop presence was provocative. Though they sometimes withheld information, it was rarely a blatant snub of Congress. In general, in the early republic, Presidents would respect the authority of Congress. Things changed in the mid-20th century. 
Schlesinger commented on the difference between early republic and modern presidencies. “The vital difference between the early republic and the imperial Presidency resides not in what Presidents did but in what Presidents believed they had the inherent right to do.”
Before we get into the more egregious abuses , let me say that not all powers claimed by the President are bad. These powers are often necessary for national security. That doesn’t give them carte blanche on their use. The President’s use of power isn’t the problem. It is the abuse of power and a blatant disregard for their coequal partner in government. That is what creates turmoil in our democracy. 
You know I hate to agree with Hamilton, but his assertion in Federalist #70 is true. “Energy in the Executive is… in the definition of good government. It is essential to the protection of the community…” 
In the same paper, he listed the ingredients necessary for an executive’s energy. He defined them as unity, duration, adequate provisions for support, and competent powers. 
The twentieth century saw us enter a new epoch of government in the United States. Things were different around the world, for that matter. The United States emerged as a world superpower amid a cold war. The Communism crisis would lead Congress to abrogate its responsibility over war powers. They would quietly allow Harry Truman to send troops to defend South Korea. The only interest in Korea the United States had at the time was as a blockade against communism. 
In the interest of full disclosure, Truman did encourage Congress to address it. Congress had no interest. They were more than willing to let the President administer this conflict as he saw fit. 
At the time, Congress was not very popular with the People. Congress was seen as the reason we were unprepared for the surprise attack on Pearl Harbor. Congress had repeatedly thwarted Roosevelt’s attempt to prepare for the inevitable. Their failure now made them afraid to act against the President. 
In the end, the president’s accumulation of power can be blamed as much on Congress as on the People. Congress looked the other way. The People were too busy or uninformed to understand what was happening. Even worse are the people entrusted to advise the President. These advisors’ own power is reliant on the President’s. Opportunists rarely advise against taking power when the time arises. If the People… if Congress, doesn’t want to fight for their power, who will?
Starobin put it succinctly. “If Congress wants to check a president’s power, it must first muster the political will to do so.”
Kennedy would attempt to overthrow Fidel Castro with his failed Bay of Pigs invasion.
Johnson would lie about the Gulf of Tonkin incident to gain favor for escalating the Vietnam War. 
And we find our way to Richard Nixon. Schlesinger refers to him as the culmination of the imperial presidency. I wish Arthur’s optimism had been warranted. 
Nixon further escalated the Vietnam War. Unbeknownst to Congress, he initiated air strikes on neighboring country Cambodia. He politicized executive agencies. He used the National Security Agency and the Central Intelligence Agency. He abused both to further his agenda. Through them, he spied on political critics. He threatened Americans who disagreed with his policies. At the time, blatant abuse of power incensed the People and saved democracy. Unfortunately, we have been unable to count on that today.
In response to his abuses, Congress passed the War Powers Act in 1973. Nixon vetoed it, but Congress overrode it. This act was to limit how long the president could wage a war without Congressional approval. Nixon ignored it. To date, the War Powers Act has remained toothless. It is a partisan football and nothing more. Presidents claim the act is unconstitutional, and Congress is split by who is in the White House. The ones who could answer it, the courts, refuse to address it. It is little more than a distraction.
Unfortunately, Nixon was not the culmination. He was the warning we ignored. He was the unruly child we didn’t punish. Worst of all, he provided a template for future would-be dictators.
Jimmy Carter would declare the US’s intent to protect the Persian Gulf with force, if necessary. He did this without consultation  with Congress. Both sides of the aisle applauded the Carter Doctrine. 
Ronald Reagan would have his Iran-Contra affair. This would only come to light because of a Lebanese magazine that exposed the agreement. 
After Reagan, the Cold War threat of communism was no more. This left future Presidents searching for their crisis. 
George H.W. Bush looked for his. His ambassador may have even fabricated it by admitting that the US had no interest in Kuwait. Sadaam Hussein would invade soon after. Realizing his error under false pretenses, Bush put troops in Kuwait. He refused to cooperate with the special counsel investigating the Iran-Contra affair. He would ultimately pardon several defendants in the same investigation. This likely ensured the cover-up remained mostly covered up.
Bill Clinton didn’t find much, but he did send troops to join the NATO air war in the former Yugoslavia. He did this without consultation with Congress. Then there was his impeachment. This strengthened the Presidency and weakened Congress. It weakened the whole idea of impeachment. It reminds us that at its foundation the impeachment process is partisan. Each failed impeachment lowers the esteem and power of Congress. It throws the balance of our government off further.
Then came George W. Bush. He never met a crisis he couldn’t politicize. He was encouraged by neo-Hamiltonian Dick Cheney. From his administration, we entered an ambiguous crisis. He called it the “global war against terrorism.” This rationale got us into two separate wars. One was fabricated from the false narrative of weapons of mass destruction. Its purpose was to finish the job his father failed: capturing Sadaam Hussein. The other commenced with no goal. Both had overwhelming support on both sides of the aisle. It would result in unprecedented surveillance of American citizens. It would plunge us into a twenty-year conflict. Three separate presidents continued to fight that conflict.
By the end, we learned what we should have known all along. Drugs… terrorism… You cannot fight a war against an idea. How long do you think it will take for us to forget that?
In 2011, Barack Obama joined with NATO to enforce a no-fly zone over Libya. He would attempt to legislate through executive order. He was mildly successful at this. 
Donald Trump  would attempt to unilaterally end US immigration policies. He would impound congressional funding for Ukraine. (Interestingly, impoundment is the first thing that got Nixon in trouble.) He encouraged his Vice President to question the outcome of an election he lost. It was all in an attempt to subvert the peaceful transfer of power. When this failed, he encouraged the use of violence to remain in power. Again, there are failed impeachments. It again brings to the forefront how partisan impeachments are. 
If Nixon was the unruly child, Trump is the undisciplined teenager. God help us if the entitled adult ever becomes President.
Joe Biden is still in his first term. His questionable use of power has concentrated on the border. Who knows what will come out as time passes or what may occur before his administration ends?
Like all historical context I provide, these are but a few. There are many more examples of the imperial presidency. The Presidency didn’t become what it is with these few examples. It's important to note that Congress has not declared war since World War Two. Since then, we have put troops on the ground in many other places: Korea, Vietnam, Panama, Iraq, Bosnia, Somalia, Serbia, Afghanistan… That’s just to name a few of the more well-known.
The power of the president doesn’t care about partisanship. Partisanship only cares when they don’t control the White House. It is the same whether they are Democrat, Republican, Whig, Federalist, or Democratic-Republicans. They all wield the same power. It is power that Congress has ceded them. To check a president’s power, Congress must first muster the political will to do so.
Presidential powers in the Constitution are a bit all over the place. So much is left up to interpretation and tradition. It was inevitable that Presidents would accumulate power over time. 
Let’s talk about a couple of powers that are often looked on negatively. Executive orders are often decried as an attempt to govern unilaterally . Executive orders are necessary for the smooth operation of the executive branch. This is how the president directs the executive agencies. This is how laws that are left vague are enforced. Executive orders define the vagueness and inform their directors how to proceed. The problem with executive orders is they often try to direct more than the executive branch. Presidents often try to use them to make pseudo laws when Congress refuses to legislate. Sometimes they are more successful than others. It always depends on popular support. Oh, and how informed and engaged the People are. 
Executive Privilege is something we should all be painfully aware of. The purpose of executive privilege is to protect correspondence with the president. The president often needs to work in secret. This is especially true with foreign affairs. It is not, as it is often used, for covering up potential crimes. In the end, it should not be up to the President if something is covered by executive privilege. Since they are claiming it, it must fall to another branch to check if it is appropriate or not. Ideally this is up to Congress. This is another check on the President’s power. Congress has foreign relations committees. Congress has committees for disseminating intelligence. There is nothing that Congress, at least leadership, should be denied. They have been elected to check the relevance of executive privilege. This is impossible if the relationship remains adversarial and based on partisan posturing.
I am not here to say, “This power is bad” and “That power is good.” I am here to say that our government must be brought into balance. 
The Founders believed that impeachment would be the ultimate check on Presidential power. That idea has ultimately failed. Four times the President has been impeached. Four times the President has remained unpunished. Whether you agree with any one impeachment or not is irrelevant. It is impossible to deny the partisan nature of impeachment. Whether you disagree with the charges or the outcome, partisanship is unmistakable. Every time an impeachment fails (as we have seen four times), it weakens the balance of power. It weakens the legislative’s ability to check the executive.
Currently, impeachment is not the answer. 
All impeachment has done is embolden future presidents. If President X can get away with it, President Y can push it a little further. That is exactly what we have gotten since Nixon resigned. Each President pushes their limits waiting to see if Congress will exert its power. Congress continues to give them a free pass. Power only fears equal power. Like many Americans, they refuse to acknowledge our problematic past. No party is going to admit their leader abused power. This means impeachment cannot serve its intended purpose as a check on the executive. That must change. We must ensure the impeachment power fulfills its purpose. 
Actions without consequences give us undisciplined teens and entitled adults. 
One of our worst self-inflicted wounds to American democracy came in 1974. On September 8, President Gerald Ford pardoned Richard Nixon. He did this under the pretense of protecting the nation. There was no doubt that Nixon was guilty. There was no doubt about the potential outcome of an indictment. Instead, Richard Nixon completely got away with high crimes and misdemeanors. We elevated one man above democracy, above our commitment to justice. Why wouldn’t future presidents take the wrong lessons from this?
The answer to bring parity back to our government is to elect an independent president. The answer is returning the People to power. The answer is a political reset. 
We must remove the conflict between the legislative and the executive. We must remove the partisan gate dividing them. That fight should remain in Congress, where it belongs. It is only possible if we reset our political system. That is only possible if we elect an independent president. Even then, it requires the People to remain committed to the grind, because it will not be easy.
In episode six, Bloodless Revolution, we discussed an independent president's agenda. That agenda must serve the People. In that episode, I laid out how to achieve it. I also said that I would share some of what that President’s agenda should include. This is one of those times.
An independent president must commit to bringing parity back to our government. As part of their agenda, they must be willing to weaken the office of the president. We must bring balance back to our system of checks and balances.
This agenda must commit to being more conservative with their use of the military. There must be no new military action based on old Authorizations for Use of Military Force (AUMFs). An active AUMF allows Presidents to deploy troops to the Persian Gulf region. This AUMF dates back to 1991. 
They should also commit to reorganizing and streamlining the executive branch. This would include agency consolidation and better defining their missions. This would be accomplished in cooperation with Congress under the Presidential reorganization power. This is not possible when partisanship plays a part in a president’s motives. 
They must commit to greater transparency with the legislative branch. Cabinet secretaries should provide regular updates to Congress to keep them informed. An independent president must commit to cooperative governing. 
Woodrow Wilson once wrote about the importance of cooperative government. “I never came out of a committee meeting or a conference, without seeing more of the question that was under discussion than I had seen when I went in. And that to my mind is an image of government.”
He further defined what he meant. “The whole purpose of democracy is that we may hold counsel with one another, so as not to depend upon the understanding of one man, but to depend upon the counsel of all.”
We cannot achieve a cooperative government if we keep doing politics as usual. We cannot achieve a cooperative government if we can’t bring parity back to government. We cannot achieve a cooperative government if the People refuse to get involved.
To achieve parity, the president must relinquish some power. They must work with Congress to pass laws to lessen future accumulations of power. Don’t worry; it will take some time, but eventually the President will reach supremacy again. Congress is ill-suited for leadership. There are too many voices. That is the whole reason we have an executive branch. Next time, the People will know what to do. 
Giving up power is necessary to get government back into balance. We all know that no party leader is going to give up power. They don’t want to weaken themselves. They always think their party will stay in power. 
Only an independent president will willingly give up power. They are not looking to birth a political dynasty . They are there to affect the government for a very finite amount of time. They are there to achieve the People’s agenda. They are there to return the government to parity. They are there to remind the political elites who they work for. 
They are there to remind the corporate elites that we the People are the power.
Now, this is where I would typically end the episode, but this week I want to leave you with two quotes. The first is from Walt Whitman’s poem Defiance and Revolt. The other is by Arthur Schlesinger. Schlesinger ends his book The Imperial Presidency with this Whitman quote. I find it quite fitting to end today’s episode the same way. 
“There is no week nor day nor hour when tyranny may not enter, if the people lose their supreme confidence in themselves, and lose their roughness and spirit of defiance… Tyranny may always enter; there is no charm, no bar against it, The only bar against it is a large, resolute breed of men.”
And finally, I will end with a line from Schlesinger’s 1973 book. Here, Arthur speaks directly to us. “Around the year 2023 the American people would be well advised to go on the alert and start nailing down everything in sight.”