War Powers

Tanenhaus on the Presidency

By Jack Goldsmith
Monday, September 9, 2013, 4:18 AM

Sam Tanenhaus had an essay over the weekend in the NYT that I think is at bottom a “little c” conservative critique of President Obama’s Syria push.  But the essay makes little sense, at least to me.

Tanenhaus starts with the claim that President Obama “holds office at a time when the presidency itself has ceded much of its power and authority to Congress.”  As evidence he claims that Nancy Pelosi gets more credit than Obama for health care reform, and implies that Obama has accomplished little else.  Tanenhaus says that Obama’s predecessors suffered the same fate.  He cites Bill Clinton’s weakness after the 1994 mid-terms, and George W. Bush’s failure to privatize social security or reform immigration.  None of these examples, of course, involves the presidency ceding power and authority to Congress.  They are examples of Congress exercising its old-as-the-Constitution prerogative not to enact laws – except for health care, which is not an obvious example of the President ceding power to Congress.

After a detour through pop culture treatments of the presidency, Tanenhaus suggests that the “problem” of “diminishing presidential power” may be less a matter of the “ideology and personality” of political actors, but rather is “structural and institutional.”

  His main theoretical support: Woodrow Wilson’s “Congressional Government,” published in 1885.  But the ideas in Wilson’s book are almost entirely irrelevant to today’s presidency.  They did not survive (among many, many subsequent changes) the dramatically expanded conception of the presidency that occurred in the New Deal.  Tanenhaus doesn’t discuss the New Deal!  Or the Great Society.  Or the modern administrative state.  Or government by Executive Order.  Or the gigantic and super-secret national security and defense bureaucracy under the President’s command.

And then, after discussion of Newton and Darwin (!), Tanenhaus shifts to modern conservatives’ dislike of Wilson because he “led the nation away from its original basis — a self-governing citizenry guided by common sense and represented by legislators attuned to local concerns — and replaced it with a regime of policy experts ‘devoted to high principle.’”  This last point leads Tanenhaus to Syria:

While Mr. Obama and his secretary of state, John Kerry, have painted the Syria intervention in grand moral terms, skeptical legislators in both parties say their constituents are asking practical questions about its cost and consequences. And they may have history on their side.

After all, it was devotion to high principle that gave us Vietnam and Iraq.

If the point of the essay is to argue that the nation should eschew those motivated by “high principle” to invade Syria and should instead side with the practical people who are paying attention to the costs and consequences of the Syria invasion, I agree – though I am not sure that distinction tracks the differences between the President and his critics, or that Vietnam and Iraq were motivated merely or mostly by “high principle.”

As for the structurally weakened presidency, that claim does indeed go back to Wilson and before, and is often repeated during times of divided government, national dissensus, and weak presidential leadership.  But when government is less divided, and the President is better attuned to national sentiment and exercises greater leadership, the “structural” weaknesses of the Presidency dissipate.  As Arthur Schlesinger Jr. put it in the course of pooh-poohing similar claims after Watergate while celebrating Ronald Reagan's leadership skills:

The Presidency [after Nixon] was in trouble not because of the fragility of the office of the unworkability of the system nor even because of restrictions imposed in the post-Watergate frenzy.  It was in trouble because President Nixon had acted in a manner contrary to his trust as President and subversive of constitutional government, and because of the feebleness of the leadership Presidents Ford and Carter provided and of the remedies they proposed.  Whatever ever else may be said of Ronald Reagan, he quickly showed that the reports of the death of the Presidency were greatly exaggerated.