A Conference On "Presidential Power In America"

Dean Lawrence R. Velvel

As readers of this blog know, this writer is deeply concerned over presidential power.  My concern is the opposite of that of the Vice Pretexter.  Apparently as a carry over from his Nixonian days, when Congress and the courts cut the imperial presidency back to a size more in keeping with the framers’ intent, the Vice Pretexter thinks the Presidency is too weak.  This writer thinks that, abetted by a sniveling Congress and a fearful, incompetent mass media, the Presidency has gotten dangerously close to all powerful, precisely what the founders feared in an Executive.  Because the framers feared another George the Third, they would fear George the Forty-Third. 

In his classic concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer, Justice Jackson summarized some of the reasons the President has become so powerful, reasons that are further exacerbated today.  Here is what Jackson said:

As to whether there is imperative necessity for such powers, it is relevant to note
the gap that exists between the President’s paper powers and his real powers.  The
Constitution does not disclose the measure of the actual controls wielded by the
modern presidential office.  That instrument must be understood as an Eighteenth-
Century sketch of a government hoped for, not as a blueprint of the Government that
is.  Vast accretions of federal power, eroded from that reserved by the States, have
magnified the scope of presidential activity.  Subtle shifts take place in the centers
of real power that do not show on the face of the Constitution.

Executive power has the advantage of concentration in a single head in whose choice
the whole Nation has a part, making him the focus of public hopes and expectations.
In drama, magnitude and finality his decisions so far overshadow any others that
almost alone he fills the public eye and ear.  No other personality in public life can
begin to compete with him in access to the public mind through modern methods of
communications.  By his prestige as head of state and his influence upon public
opinion he exerts a leverage upon those who are supposed to check and balance
his power which often cancels their effectiveness.

Moreover, rise of the party system has made a significant extra constitutional
supplement to real executive power.  No appraisal of his necessities is realistic which
overlooks that he heads a political system as well as a legal system.  Party loyalties
and interests, sometimes more binding than law, extend his effective control into
branches of government other than his own and he often may win, as a political
leader, what he cannot command under the Constitution.

Today the President claims, and/or asks Congress to give him, more power than ever before.  He claims, has been given, or seeks power to fight wars against whomever he chooses and for as long as he chooses.  He claims the power to ignore laws passed by Congress.  He claims the right to operate secret prisons that hold unidentified prisoners.  He claims the power to torture.  He claims the right to imprison indefinitely people who may be – and in some cases admittedly have been, innocent. He claims the right to kidnap people off the streets of foreign countries.  He claims the right to electronically eavesdrop.  He claims the right to use secret evidence before military tribunals.  Etc., etc.  And to a considerable extent he has been able to exercise much of this claimed authority because, as Jackson said, he has unparalleled access to the (sycophantic) media and is the leader of (a disgraceful) political party -- and, one may add, the courts have lacked the intelligence or courage to stop him.

This blogger is worried by the growth of despotic presidential power unmatched since Nixon’s days, and perhaps even surpassing Nixon’s.  For that reason, our law school (the Massachusetts School of Law) is going to hold a conference on October 14 and 15 called Presidential Power In America.  The topics to be discussed there will include both constitutional and political ones:  among them will be British antecedents and the intent of the framers regarding Executive power, the growth of Executive Power far beyond what was foreseen, the effect of the Supreme Court’s (infamous) 1936 decision on the foreign relations power in the Curtiss-Wright case, the failure of Congress to assert and maintain its power, constitutional doctrines regarding delegation of power to the President by Congress, the media’s failure to hold the Executive accountable or even to report what the Executive is doing, the use of executive privilege, the growth of secrecy, the use of the state secrets doctrine and the effect of leaking, the use of military tribunals, the use of torture, and the effect of war and national security in causing permanent growth of Presidential power.

These and other crucial subjects relating to presidential power will be assessed by speakers and panelists ranging from prominent scholars and authors who began dealing with these issues as long ago as the days of Viet Nam (e.g., Richard Falk, Louis Fisher), to young reporters who have broken huge stories such as the one on George Bush’s infamous signing statements (Charlie Savage of The Boston Globe).  An alphabetical list of the 16 speakers and panelists is in the footnote below**. (Rest assured that the name John Yoo is not among them.)

Because of the importance of the question of presidential power, the proceedings of the conference will be videotaped, edited and made available on Internet video, with excerpts also being made available on standard television.  Also the proceedings will be published by Cambridge Scholars Press, a British publisher.

Because of the importance of the topics, the prominence of the speakers, and many readers’ deep concern over what has occurred under the Bush Administration, some of the readers of this blog might like more information about the conference or might even wish to attend.  You can obtain additional information, including a full description of each speaker and panelist, and the specific expertise of each, by visiting www.mslawevents.com, or by contacting Jeff Demers at (978)681-0800, demers@mslaw.edu.

**David Gray Adler, Thomas Cronin, Richard Falk, Louis Fisher, Michael Genovese, Daniel Hoffman, Peter Irons, Nancy Kassop, Christopher Kelley, Peter Malaguti, Christopher Pyle, Andrew Rudalevige, Connie Rudnick, Charlie Savage, Robert Spitzer, and Lawrence Velvel.

This posting represents the personal views of Lawrence R. Velvel.  If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu.  Your response may be posted on the blog if you have no objection; please tell me if you do object.

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Harvard Square Commentary, October 2, 2006