The power of King George

This week Bush made another executive power grab -- and our own Constitution is largely to blame.

By Garrett Epps

Read more: George W. Bush, Iraq, Opinion

Feb. 1, 2007 | Washington was treated to a curious American spectacle on Monday. A president repudiated by virtually every sector of the political system has responded by arrogating more power to himself.

Under the executive order Bush signed Monday, federal regulators will answer to a new set of Bush appointees in each agency, who will determine whether their proposed rules properly serve the Bush agenda. As Peter Strauss of the Columbia Law School told the New York Times, "Having lost control of Congress, the president is doing what he can to increase his control of the executive branch."

Bush's administrative power grab points to a serious flaw in the American system: our uniquely powerful, politically unaccountable executive. Americans take this system for granted -- we are taught in high school that it was designed by far-seeing statesmen. We seldom even notice how often it misfires, with results ranging from opera buffa (like the Clinton impeachment) to dangerous constitutional crisis (like the Nixon impeachment).

Crisis is what we are facing now. Public opinion has decisively turned against the president's war in Iraq, with voters dissenting where our system says they should -- at the polls. Congress, the supposed locus of the power to "declare war," is belatedly registering its disapproval of Bush's inept conduct of that war. Even the normally secretive military and national-security bureaucracies are busily signaling their objections to the commander in chief's plans.

In virtually any other advanced democracy in the world, government personnel and policy would by now reflect this political earthquake: Either the chief executive would have resigned, or the parties would have coalesced in a government of national unity. But here, the repudiated leader is escalating his war and proclaiming, "I'm the decision maker." Regarding Congress, Bush said during a recent "60 Minutes" interview, "They could try to stop me from doing it. But I made my decision, and we're going forward." And now the president appears to be barreling toward a confrontation with Iran.

Americans are taught that our Constitution provides a legal answer for every political ill. If Bush is acting undemocratically, what he is doing must surely be unconstitutional. Adam Cohen of the New York Times recently assured editorial page readers that "the Founders, including James Madison, who is often called 'the father of the Constitution,' fully expected Congress to ... rein in the commander in chief." Perhaps, but no matter what they expected, the document they wrote gives the president more cards to play than Congress in most situations, particularly in the war-and-peace game. Congress can declare war, but the text says nothing about halting wars in progress. And the president is commander in chief of the armed forces without limitation on the circumstances or purposes of their use. Once the bullets are flying, Congress can dither, but the president acts.

In 1846, President James K. Polk ordered American troops into a part of Texas claimed by both Mexico and the United States. When Mexican troops attacked them, Polk demanded and got a declaration of war on the grounds that Mexico had started it. At the outset of the Civil War, Lincoln unilaterally proclaimed a blockade on the seceding states and raised an army (a clear congressional power) without any authorization. Afterward, he all but dared Congress to disavow his acts, which it did not. Harry Truman refused to ask Congress for any authorization for the war in Korea, claiming that the U.N. Charter empowered him to use U.S. troops there as he saw fit. Bill Clinton did the same thing in Kosovo, relying on a vote of the North Atlantic Treaty Organization. Both the Bushes consulted Congress before their Gulf wars -- but both also publicly warned that they would simply ignore a "no" vote.

The framers had attempted to design something the world had never seen before: an elected chief magistrate for a self-governing republic. The major models they had before them were high-handed monarchs on the one hand and the relatively impotent governors of the states on the other. We shouldn't be surprised that they got almost everything about the presidency wrong. But if the presidency were a car, Americans would be asking for their money back. It's hard to start, hard to steer -- and nearly impossible to stop.

To begin with, the framers invented the worst system imaginable for electing a president: an electoral college, designed to protect the political influence of the slave states, that first misfired in 1800, created crises in 1824 and 1876, and most recently paralyzed the country in 2000.

Next, they gave the president a fixed term of office and made it all but impossible to get rid of one who is no good at his job. Impeachment by both houses of Congress seems to be reserved for cases of near-criminal conduct, and there's no equivalent remedy for incompetence or political bankruptcy.

Next page: Iraq could bring the most dangerous clash among the executive branch, the Congress and the American people in our lifetime