Originally published by Constituting America, August 7, 2015. Republished with permission.

 

Cheered on by Congress and the Supreme Court and abetted by what has become very nearly a fourth branch of government—the federal bureaucracy or administrative state—the executive branch of the United States government has for some time almost routinely overridden the separation of powers the Framers designed for the protection of American rights. In The Federalist, Publius argued that the Constitution itself amounts to a bill of rights, preventing the usurpation of powers by the executive by giving the legislative and judicial branches powerful incentives and real powers to resist such encroachment. This worked, until it didn’t, most obviously during the second administration of Franklin Roosevelt.

Whether it is the Environmental Protection Agency ignoring Congress and issuing edicts on global warming, federal land grabs in Alaska, bureaucratic regulations on immigration, the confused and onerous burdens of the Common Core program in our schools or the Affordable Care Act in our hospitals and doctors’ offices, warrantless surveillance of American citizens by the National Security Agency, partisan misuse of the Internal Revenue Service, or the overuse of Congressional-Executive agreements and sole executive agreements in lieu of treaties, we have witnessed an executive and administrative power that no longer merely executes laws enacted by Congress but itself legislates, with or without Congressional organization, and often with no rebukes from a complaisant Supreme Court.

Why is this happening?

We can enter the trail at any one of the points listed, but let’s use the last one, the international ‘agreements’ that have largely taken the place of treaties since World War II. Some fourteen years ago, John C. Yoo—then as now a professor at Berkeley Law School—wrote an illuminating article in the Michigan Law Review discussing the history of treaties and Congressional-Executive agreements. [1] Yoo later joined the George W. Bush administration in the Office of the Attorney General and authored rules governing the War on Terror and authorizing the use of “enhance interrogation techniques” as one instrument of that war. He is no libertarian when it comes to Constitutional law. This makes his work all the more useful here, exempt as it is from any suspicion that it was authored by an enemy of executive power.

Among the principal defenders of the constitutionality of such agreements, Yoo mentions Bruce Ackerman, Sterling Professor of Law and Political Science at Yale Law School and author of (among other books) The Failure of the founding Fathers, We the People: Foundations and its sequel, We the People: Transformations. Ackerman argues for a constitutional theory that combines the popular sovereignty of Senator Stephen Douglas with the Progressivism of Woodrow Wilson and such prominent recent Supreme Court Justices as William J. Brennan and Thurgood Marshall.

As Yoo documents the matter, between 1789 and 1839 the United States entered into sixty treaties and twenty-seven non-treaty international agreements. But “as the nation entered world War II… statutory devices or even unilateral executive action came to overwhelm the treaty process; from 1939 to 1989, we enacted 702 treaties but 11,698 non-treaty agreements. Writing in 2001, Yoo observes that almost all of these international agreements concerned trade (Bretton Woods, the WTO, NAFTA, and the like), but such areas as arms control, the environment, and human rights were still firmly under treaty law. Obviously, only a decade and a half later, this is no longer the case. Non-treaty agreements are now standard practice in all areas of international dealings, not just trade.

Ackerman applauds the trend. Reacting to the failure of the Versailles Treaty (with its concomitant League of Nations), progressives began a push to make international agreements legally equivalent to treaties. One might suppose that the Constitution would block any such effort, but not the Constitution in the hands of progressives. According to Ackerman, the 1944 election of Franklin D. Roosevelt not only gave popular endorsement to his intention to frame and participate in the new League-of-Nations substitute, the United Nations, but actually transformed the Constitution itself. The election, you see, was a revolutionary moment in which public popinion endorsed a fundamental change in Constitutional practice, entitling the executive and legislative branches to bypass the treaty-making power of the Constitution. By 1947, Ackerman claims, such “interchangeability” had “become part of the living Constitution”—the foreign-policy equivalent of the seeping domestic constitutional changes wrought by FDR’s smashing victory in the 1936 election, which centralized power in Washing and thus compromised federalism, transferring a considerable part of lawmaking power from Congress to the administrative state now ensconced in the capital city. A “New Deal,’ indeed: a ‘revolution’ effected not by war and not even by the ratification of a new constitution by the people’s representatives in a constitutional convention, but enacted by a pair of presidential elections.

But where does this notion of the “living Constitution” come from? And what does it mean?

The phrase predates the New Deal. It is first seen in Woodrow Wilson’s 1908 study, Constitutional Government in the United States, one of his last scholarly efforts before he left the presidency of Princeton College for the governorship of New Jersey and eventually for the White House. Wilson’s scholarship had long served the political agendum of progressivism, and Constitutional Government continued that project. Like all progressives, Wilson maintains that each epoch of human history has had its own distinctive mindset, useful for that time but largely obsolete in subsequent times. If the Declaration of Independence said that all men are created equal insofar as they possess the unalienable rights of life, liberty, and the pursuit of happiness, well, that “leaves to each generation of men the determination of what they will do with their lives, what they will prefer as the form and object of their liberty, in what they will seek their happiness.” As “history” works itself out, through the generations, “leaders” arise to guide them. “A living people needs not a master but a leader”; fortunately, “great passions, when they run through a whole population, inevitably find a great spokesman.” Whereas the Framers had so structured government as to refine and enlarge the public views—to make self-government reasonable government—Wilson is confident that passions will bring a people greatness. The leader is the most articulate spokesman for the ruling passion of his time.

Specifically, in this new, twentieth century we must abandon the Constitutional theory of the Founders. “The makers of the Constitution constructed the federal government upon a theory of checks and balances which was meant to limit the operation of each part and to allow to no single part or organ of it a dominating force; but no government can be successfully conducted upon so mechanical a theory.” Rather, we need a government in which a leader may “bring the several parts of government into effective cooperation for the accomplishment of the particular common objects—and party objects at that.” The mechanical theory of the Founders derived from the natural-science mechanics of Isaac Newton. But “in our day, whenever we discuss the structure or development of anything, whether in nature or in society, we consciously and unconsciously follow [Charles] Darwin,” not Newton. Gravitation and the image of planets in orbit have given way to a view of nature that has become historicized or progressive—evolutionary, not stable.

Here is where the “life” of the “living” Constitution comes in. “The trouble with the [Newtonian] theory [of the Founders] is that government is not a machine, but a living thing. It falls, not under the theory of the universe, but under the theory of organic life. It is accountable to Darwin, not Newton…. Living political constitutions must be Darwinian in structure and in practice.” The Constitution “is a vehicle of life, and its spirit is always the spirit of the age”—evolving, developing, aiming at ever-superior life-forms. History—now conceived as ever-evolving toward better forms of society—becomes a series of Ackerman-ish “revolutionary moments.”

To Wilson, this fits exactly with approval of government as primarily an executive—that is, a presidential—affair. The president represents the ruling political party, itself on the cutting edge of historical progress as demonstrated by its electoral success, its ability to capture the ruling passion of popular opinion. “He is also the political leader of the nation.” “The President is at liberty, both in law and conscience, to be as big a man as he can. His capacity will set the limit.” In particular, he enjoys “very absolute” control over foreign policy.

In Wilson’s constitutional—some might say ‘anti-constitutional’—theory we see the genesis of government by executive leadership. Buttressed by a professional bureaucracy staffed by men and women adept at “the science of administration”—the title of then-professor Wilson’s most important early essay—the president becomes the good shepherd of the spirit of the age, sharing our current ruling passion, leading us ever closer to the final ‘end’ of historical progress, that land of peace and prosperity that will leave all of our passions satisfied, all of our dreams fulfilled.

If Americans today find themselves perplexed at government by executive orders and executive ‘agreements,’ it is only because they’ve not seen how such government was carefully prepared by men like Wilson and Franklin Roosevelt, and not in some secret place as a part of some dark conspiracy, but openly and in print in writings that often date back more than a century. In those writings, progressives proposed the dismantling and replacement of the Framers’ regime, under such formulas as “The New Freedom” (Wilson), the New Republic (journalist Herbert Croley), the New Deal (FDR), the New Frontier (JFK), the Great Society (LBJ, borrowing from an earlier progressive writer), the New Spirit (Jimmy Carter), and finally a movement of “Hope and Change” (Barack Obama). New and great, hopeful and ever-changing, because progressives suppose that they know those old Constitutional principles to be obsolete, and that they see further—better than the rest of us do—and so can more surely lead us into the Future.

 

Note

1. John C. Yoo: “Laws as Treaties: The Constitutionality of Congressional-Executive Agreements.” Michigan Law Review, Volume 99, February 2001, pp. 757-852.

Originally published by Constituting America, July 13, 2015. Republished with permission.

 

Properly used, executive orders form an indispensable part of any government, including our own. If Congress passes a slaw and the president signs it, the president undertakes a Constitutional obligation to execute the law. In so doing, he is likely to need to tell his administrators what to do and, at least to some extent, how and when to do it Thus the president is constitutionally obligated to enforce immigration law and is fully entitled to issue executive orders in the course of fulfilling that obligation.

Many current problems with immigration have arisen because recent presidents have preferred to complain about U. S. immigration laws themselves, instead of enforcing them. They do indeed have a lot to complain about. But that is no excuse to refuse to enforce the laws that now exist, either passively—by simply failing to follow them—or actively—by issuing executive orders that contradict them. Last I looked, “illegal immigration” meant immigration that’s against the law, and I for one wouldn’t mind seeing a bit more respect for duly-enacted laws of the land. As Abraham Lincoln said, repeatedly—from his Lyceum Address in 1838 through his first Inaugural Address of 1861—even unjust laws are laws, and he who breaks them encourages a spirit of lawlessness that may bite the hand that feeds it.

Part of the problem we face stems from our (now) rather hazy way of conceiving immigration law. Let’s back up for a moment and consider the strengths and the dangers of the American understanding of immigration—legal immigration. For most countries, immigration is a fairly straightforward matter. If I am Russian and you are not, I will let you into my country, or not, depending upon whether I regard your existence there to be in the best interests of the Russian nation, as defined by the government of Russia (including its state-controlled church). Thank you. To be sure, this doesn’t make immigration go away, as a practical problem. Many countries find themselves overwhelmed by refugees from war or famine; some (Russia included) find themselves vexed by ‘foreigners’ who were incorporated during an earlier period of imperial conquest. But at least in principle, the doctrine of modern nationalism settles the issue by defining immigration as a matter of national self-interest, often defined not merely in economic but in linguistic, religious, and ethnic terms.

From the founding on, the Americans understood the matter quite differently. If all men are created equal, endowed by their Creator with certain unalienable rights to life, liberty, and property, then nationalism cannot form the core of American law. With respect to immigration, we cannot say to those who want to join us in citizenship: ‘We don’t want you because you are French, Irish, Chinese, Iranian and not American.’ Mere ethnicity can be no bar to residence or citizenship in the United States, a country founded on resolutely non-ethnic principles.

However, America is entirely unexceptional in claiming the right to control its own borders, on the following grounds: By organizing ourselves into a political society dedicated to the proposition that all men are created equal, we have drawn geographical boundaries around a moral idea. That is, in our first century after independence we bought and conquered our way from sea to shining sea on the foundation of a moral idea—human equality of unalienable natural rights. We staked out this territorial claim under a republican regime that distinguished ourselves from other countries, which occupied different parcels of the earth and often at the service of very different principles and ruling themselves under different regimes. Our right to secure boundaries issues not from ethnic identity–by eighteenth-century standards, we were already a somewhat mongrel lot, and things have only gotten wilder since then—but from the very right to security itself, that is, from the obligation of governments (as the Declaration of Independence puts it) to secure the rights with which every human being has been endowed. We have paid to defend those universal rights in this particular place: our two civil wars (1775-781 and 1861-1865) two world wars (three, counting the wars of the Cold War, and four, counting the wars against jihadists and their sponsors).

This willingness to enunciate and to defend natural, human rights in a practical way—within a physical territory, against enemies foreign and domestic—has contributed not only to political freedom in the world but to our own prosperity. The nation of immigrants has been the nation of willing workers and patriotic citizens; since our founding, immigrants have taken the hardest, dirtiest, and lowest-paying jobs precisely because they knew they would sooner or later be recognized in American law as what they already were by nature but were not in their native countries: rights-bearers.

With these great advantages came a serious problem. Being geographically limited, being finite, the United States can no more permit all human beings to come here than any other country can—if any other country wanted to. This obvious fact has forced American legislators from the founding generation to now to seek limits to immigration consonant with our universal moral principles. By necessity, we must put reasonable limits on a principle unlimited by any category other than that of ‘humanity.’

A good example of this was the American approach to Chinese immigration following the Civil War. In 1868, the United States and China signed a treaty stipulating, among other things, that “the United States of America and the Em[peror of China cordially recognize the inherent and inalienable right of man to change his home and allegiance, and also the mutual advantage of the free migration and emigration of their citizens and subjects respectively from one country to the other, for purpose of curiosity”—we call it ‘tourism,’ now—”of trade, or as permanent residents.” This notwithstanding, both governments understood that America and China were different countries, with different languages, customs, habits; neither would be permitted to overwhelm the other by sheer population transfer. Then as now, there were a lot of Chinese. As for the Americans, had they not overwhelmed the North American Indian tribes and nations with exactly such a demographic strategy?

In the early 1880s, over 100,000 Chinese had emigrated to the United States—a then-substantial number of persons who had no experience in ‘working’ a political regime of republicanism. As Hillsdale College political science professor Adam Carrington has written in a recent article in the Journal of Supreme Court History [1], Justice Steven J. Field argued that border control rested in the national police power—a power inherent in any government that seeks to protect the lives and property of its citizens. Ignoring then-common claims based on ethnicity or race, Field observed that the Chinese “retained the habits and customs of their own country.” Some Chinese were welcome, but “vast hordes of people crowding in upon us” threatened “the right of self-preservation” and therefore justified invoking the police power of the United States to control the influx and thus to affirm the sovereignty of the American people over their own country in a way consonant with their own regime, their own way of life.

Current confusions bedeviling American immigration policy follow from obscuring the foundations of the American regime itself. If the American people are sovereign on American territory, and if that sovereignty itself defers to the laws of nature and of nature’s God, then Americans will not ban any would-be immigrant on the basis of such morally irrelevant categories as race, national origin, or religious confession—at least insofar as the latter does not command acts in violation of those natural laws. If, however, the American people enact laws with which to govern admission to the territory over which they enjoy sovereignty, on such morally and politically legitimate terms, then it is the obligation of other countries to respect those laws and for elected officials to obey them until such time as they may be changed by ordinary legislative processes. To attempt to change or abolish such laws de facto by executive fiat strikes at American constitutionalism—the very legal foundation that protects the rights of persons and property, rights that make America attractive to would-be immigrants in the first place, and livable to those of us who are already here.

One thing ought to be clear. Enacting laws for immigration must be an act of the national legislature and the president, given the supreme importance of such law. Immigration law determines not only the number but also to some extent the character of the people who will join us in citizenship. It is no matter for one branch of government alone, any more than are the laws governing the civic education of new immigrants and their children.

 

NOTE
1. Adam Carrington: “Police the Border: Justice Field on Immigration as a Police Power.” Journal of Supreme Court History, Volume 40, Number 1, March 2015, pp. 20-37.

Originally published by Constituting America, April 24, 2015. Republished with permission.

 

In late January 1904 the president of Princeton College stepped to the podium of The Outlook Club in Montclair, New Jersey. Today, university presidents get into the news when some scandal erupts, but at the beginning of the last century they often enjoyed the status of what we now call ‘public intellectuals’—frequently quoted in the newspapers on the issues of the day, looked to for solutions to economic and social problems. Nicholas Murray Butler at Columbia, Charles William Elliot at Harvard, and Arthur Twining Hadley at Yale were well-respected national figures. The Outlook Club was exactly the platform for such a person; possibly named after The Outlook, a prominent magazine featuring literary and political commentary associated with the several ‘reform’ movements of the day, the Club afforded its speakers an audience of university-educated civic leaders who used their influence to promote ‘good government’—by which they first intended government free of corruption and of the party ‘bosses’ associated with it, but which would soon coalesce into something still more ambitious: Progressivism.

The speaker at the Outlook Club that night was Woodrow Wilson, who had been appointed to the presidency of Princeton two years earlier after a distinguished scholarly career at the Johns Hopkins University. Wilson was already one of the most prominent members of the Progressive movement, coming to the attention of his peers for his studies of, and advocacy for, professional or ‘scientific’ administration of the American state, in imitation of German and French models. And of course he would use the presidency of Princeton as a springboard to the governorship of New Jersey and then to the White House—a career path that seems implausible to us today, but only because we no longer lionize our university presidents as we did then.

The title of Wilson’s talk was “Our Elastic Constitution.” His argument was simple. “The Constitution is like a snug garment stretched to cover so great a giant as the nation has become. If it wasn’t stretched it would tear.” Today, Americans wonder at the use and abuse of executive power under the sitting president and many of his recent predecessors. In Wilson’s talk we find the origin of this startling expansion of executive rule, an expansion not authorized by any fair reading of, say, the United States Constitution, where executive power is enunciated. While it is unquestionably true that American presidents form time to time exceeded their Constitutional authority—Thomas Jefferson admitted as much in making the Louisiana Purchase—such overreaching typically occurred because some national emergency or other extraordinary circumstance had arisen. (Jefferson, citing the importance of New Orleans to the commercial prosperity and military security of the middle of the North American continent, refused to hesitate to make a bargain with the French despot who by then was calling himself Napoleon I, knowing that that tyrant’s vast military ambitions in Europe had opened an opportunity for America on this continent that might never arise again—the possibility for peaceably obtaining possession of a huge parcel of invaluable farmland overlain with a river system that emptied into the Gulf of Mexico. This was a prize that Napoleon himself could not win in Europe at the price of his own Grande Armee, but Jefferson could win it here at the cost of four cents an acre.) But such circumstances were understood to be rare, and in need of public justification.

What we now see is a much more routine use of executive action that effectually usurps the actions of the legislative branch. How did this come about? How was it excused? Wilson shows us.

Even with the closing of the American frontier “less than fourteen years ago” in 1890, America has not stopped growing. Not only has it acquired Hawaii, the Philippines, and other far-flung territories, it has embarked on a vast project of industrialization and urbanization. “The American is skeptical of impossibility,” Wilson asserted, “he is ready for anything. He admits theoretical impossibilities, but has never found them actual.”

Well, actually Americans had found actual impossibilities from time to time, as Wilson well knew. The attempt at reconstructing the regimes of the former slave states in Wilson’s native Southland had met with mixed success at most. But that was in a way Wilson’s point, unspoken on the occasion of his Montclair speech but forthrightly advanced on other occasions. “Certain it is that statesmanship has been steadily dying out in the United States since that stupendous crisis during which its government felt the first throbs of life,” he had written, years earlier. Notice that the vitality of the government began not with independence in 1776, not with the Articles of Confederation in 1778, nor even with the ratification of the Constitution in 1789, but only during the greatest national emergency since the founding—the Civil War. and government soon went dormant thereafter.

But meanwhile, the country had not only lived but grown robustly, both in population and in territory, throughout the nineteenth century. Only a strong executive, “vouchsafed the freedom of Prerogative, which must include the power of supplementing as well as of shaping the law to fit cases,” can make the office of the presidency worthy of the energies of great men—or, as Wilson had come to call them, “leaders of men.”

Twentieth-century America will choose as its president a man judged by the people to “understand his own day and the needs of the country, and who has the personality and the initiative to enforce his views both upon the people and upon Congress.” Under twentieth-century conditions, the executive and not the legislative branch has “the most direct access to [popular] opinion,” and therefore “the best chance of leadership and mastery,” unimpeded by the confusion and contradiction of legislative debate. “[B]ecause he has the ear of the whole nation and is undoubtedly its chosen spokesman and representative, the President may place the House at a great disadvantage if he chooses to appeal to the nation.”

The ever-growing American nation, then, was held by the Progressives to need a leader, a person to focus public opinion and to act decisively not only to express but to guide it. President Obama is the latest example of this line, the most successful of which remains Franklin Roosevelt.

The difficulty lies in the definition. When you get down to it, a real constitution must constitute something. But if the constitution is defined by its elasticity, it no longer constitutes. Spandex may show off one’s best features or (as often) cover a multitude of sins. But it constitutes nothing. an elastic constitution shows off or covers up the will of the president, the Supreme Court, the Congress, the federal bureaucracy. It no longer limits their actions. And so we have what we have.