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Preface to the Paperback Edition

The Once and Future King, published in April 2014, described how political power in the United States has become ever more concentrated in a kinglike presidency—more so than in a parliamentary executive—and predicted that this trend would continue. That gloomy prognosis was in the very title of the book, so I could scarcely walk away from it. I needn’t have worried, however, for Obama is the gift that keeps on giving.

The book highlighted, as an especially expansive exercise of presidential power, Obama’s 2012 end run around the Dream Act, a bill that would have granted permanent residency to as many as two million young undocumented aliens. The bill was defeated in Congress, but Obama, nothing daunted, then signed an executive decree that adopted many of its provisions. He couldn’t grant the aliens the legal status of permanent residents, so he gave them the next best thing by announcing that the Citizenship and Immigration Service wouldn’t deport them and by granting them work permits.

Immigration is a highly contentious issue, and the president’s decision to ignore Congress signaled that we had arrived in uncharted constitutional territory. Obama took it a step further in November 2014 when he announced that an additional four million aliens would be exempted from the threat of deportation. This was so breathtaking an extension of presidential power that even the Washington Post, usually a reliable presidential courtier, went out on a limb and began to talk of presidential overreach.

After a February 16, 2015 decision by Judge Andrew Hanen in Texas v. U.S., that program is now on hold. The problem wasn’t the president’s decision not to enforce the immigration laws. Rather, Obama had erected a new set of rules governing who could be legalized, and crucially had purported to grant the entrants Social Security numbers, work permits and welfare benefits without complying with the notice-and-comment procedure contemplated by federal legislation. For the judge, that was a step too far, though it remains to be seen whether the injunction he granted will survive on appeal. His carefully reasoned, 123-page decision demands to be taken seriously, but it’s still a long shot.

THE LOGIC OF THE GAME

Some critics have called the president’s actions illegal. I have a different definition of what’s legal, taken from Jeremy Bentham’s friend John Austin: laws are commands of a sovereign, backed by force. Obama is effectively the sovereign, and he commands all the guns.

Just who is going to stop him, after all? Executive overreach is a hot potato: a Republican Congress proposes to toss it to the courts through a lawsuit over Obama’s decision not to enforce the immigration laws, and the Supreme Court can be expected to toss it back to Congress, if the future is like the recent past. Under the “political question” doctrine, the Court leaves the other two branches of government to sort out their turf wars. It would be especially difficult, moreover, for the Court to impeach what I call the president’s nonenforcement power, and even if it did so over the immigration waiver, there are a thousand other areas where the president might decline to enforce the laws.

John Locke recognized the problem in the Second Treatise on Government, where he defended what the British called (ahem) the royal prerogative:

Section 160. This power to act according to discretion, for the public good, without the prescription of the law, and sometimes even against it, is that which is called prerogative: for since in some governments the lawmaking power is not always in being, and is usually too numerous, and so too slow, for the dispatch requisite to execution; and because also it is impossible to foresee, and so by laws to provide for, all accidents and necessities that may concern the public, or to make such laws as will do no harm, if they are executed with an inflexible rigour, on all occasions, and upon all persons that may come in their way; therefore there is a latitude left to the executive power, to do many things of choice which the laws do not prescribe.

But then, Locke asked, what happens when the King abuses this power and usurps the role of Parliament? In that case, he said, “the people have no other remedy in this, as in all other cases where they have no judge on earth, but to appeal to heaven.”

Remember the Appeal to Heaven flag? It was hoisted by the new Continental Navy in 1775 at the command of George Washington. No one today is suggesting armed resistance to the sovereign, but what’s left? Ultimately, only the voters. Presidential power is effectively limited only by the requirement of an election every four years. That’s why, when the president takes on Congress, it’s generally over an issue on which he has the voters at his back. And that explains why, for all their huffing and puffing, the Republicans in Congress won’t use all their powers (e.g., courting a government shutdown) to oppose Obama. The result is what the political scientist Theodore Lowi called a “plebiscitary presidency,” in which presidents can act however they want so long as they command the support of the people.

Is that where we are headed? Not necessarily, some observers have argued. James Ceaser in the Weekly Standard and George Will in the Washington Post suggest a game plan for returning to a regime of limited presidential powers. First, they say, let’s elect a Republican president. Then let him rule modestly in cooperation with Congress, as presidents did in the good old days. Future Democratic presidents, having watched how a restrained Republican president governs, will feel bound to follow suit, and they’ll promise to play nice too.

But what is there to prevent the Democrats from welshing on their promise when they return to power? Political parties exist in what Thomas Hobbes called the “state of nature,” where promises are not binding and where “he which performeth first doth but betray himself to his enemy.” A future Democratic president could take the Republicans for patsies and ignore a Republican Congress, governing just like Obama.

The grim logic of the game goes only one direction, and we should not expect presidential restraint by one party to be matched with restraint by the other party. Instead, if one party’s president rules as a king, so too must the other party’s president. The next time we have divided government with a Republican president, therefore, don’t expect him to enforce laws he thinks noxious. When your opponent brings a gun to a fight, then you should bring a gun as well. Not a banana. It’s only the threat of payback that can bring us back to a republican form of government where presidential power is limited.

A similar logic has led some conservative legal scholars to propose an activist litigation strategy in order to roll back liberal judicial precedents. Don’t just accept where we are, they say, but raise constitutional arguments to promote a liberty agenda; otherwise the legal regime will become a one-way ratchet in which liberal decisions are frozen in place once adopted. That’s how the conservative activist would treat the third branch of government (the courts), and what I propose is the same strategy for the second branch (the executive).

The threat of payback just might lead Democratic presidents to pull back from exercising kinglike powers. Or not. It doesn’t seem to have deterred Obama in any way. One president may feel little concern about how future presidents use their power, even with respect to a Congress led by his own party. It’s his time in the sun, so why not enjoy it? There isn’t much incentive for a president to attempt to stop a cycle of payback. That helps explain the empirical findings presented in Chapter 6 of this book, showing that presidential regimes are bad for political liberty. One strongman president is followed by another. Not Harry a Harry succeeds, but Amurath Amurath.

OUR HAMILTONIAN REPUBLIC

The French have Montesquieu and Rousseau, the British have Hume and Mill, and we have Madison. One goes with what one has. And Madison did give us the strongest defense of divided government in the Federalist Papers. Our system of government is often described as a “Madisonian republic,” but in fact it wasn’t one at its birth, and it certainly isn’t one now.

Virtually everything that Madison proposed in the Virginia Plan was rejected by the other delegates to the 1787 Constitutional Convention in Philadelphia. Madison favored a strong national government, but what emerged from the convention was a very different kind of constitution, one that owed more to lesser-known delegates such as Roger Sherman. While there would be a much stronger central government than under the Articles of Confederation, in many ways it would still be a vehicle through which the state governments would set policy. State legislators would appoint the senators and would also determine the method for selecting the presidential electors. In most cases, thought the Framers, the state legislators would simply appoint the electors, who would also meet in their respective states and not at some national gathering. Further, the president would in nearly every case be appointed by the House of Representatives, voting by state.

Madison’s ideas were not universally rejected, however. Sir John A. Macdonald brought a copy of Madison’s notes to the conferences that produced the Canadian constitution. While he thought Sherman’s constitution too decentralized, Macdonald admired the American Framers, and most of the Virginia Plan was adopted in Canada’s constitution. One might therefore call Madison “the Father of the Constitution” so long as one is clear about which country is meant.

Today’s American constitution, in truth, is Hamiltonian, not Madisonian. Madison wanted a strong national government, but Hamilton went much further. He didn’t see the point of the states, and now the discretion of state governments has greatly shrunk under the federal “spending power.” The Supreme Court has upheld the power of the federal government to make grants to the states with strings attached, and the strings control just what the states can do with the money. One governor is reported to have said, “The Feds pay 15 percent of my highway budget but choose 100 percent of what I do with it.”

When one turns from the division of power between the federal government and the states to the separation of powers within the federal government, our constitution is even more Hamiltonian. Today the executive branch dominates Washington, and Congress sputters to make its voice heard. Most conservatives decry this—but not all of them. There’s a Nietzschean strain in American conservatism, one that celebrates military might, and for such people Hamilton’s celebration of “energy in the executive” in Federalist No. 70 is holy text. America may no longer be the freest country in the world, and the promise of social and economic mobility may have dimmed, but this is still the most powerful country in the world, and that’s a matter of immense pride for such conservatives.

The Nietzschean conservatives were in the ascendant a dozen years ago, but now their star has faded. They were embarrassed by the Iraq War, and they have yet to adjust to what “energy in the executive” means in the age of Obama—who is forceful in pushing domestic policies with which they profoundly disagree, while his foreign policies seem so feckless. We’re not merely “leading from behind.” We’re leading behind the French. But that’s what we’d expect from a social democrat such as Obama, who would naturally want to shrink the Defense Department budget in order to fund social welfare programs. And the best way of doing this is to adopt a fainéant foreign policy. What’s the point of having the biggest pistol in the room if everyone knows you’ll never pull it from your holster?

AMERICAN EXCEPTIONALISM

This book’s reviewers were always kind. I was particularly thankful to the reviewer in the Italian weekly L’espresso who called it “un libro magnifico,” and I just might be persuaded to give a book talk in Rome if asked. No reviewer, however, commented on my empirical findings about the loss of political freedom in other presidential countries. That’s not surprising, since few people understand econometrics. Anyway, need we care much about the constitutions of other countries if America is truly exceptional? A century and a half ago, Walter Bagehot said it was no proof of the excellence of their constitution that Americans made it work, since Americans could make anything work.

The question is whether that’s still the case. In the past, American politicians could cut deals across the table, but we haven’t seen much of that lately. Think, for example, of the budget impasse of 2011 and the inability of the last Congress to pass needed legislation. Pundits fault the politicians for this, but I’d cast the blame more widely. It’s not the politicians, it’s the people. After his party took a beating in the 1994 elections, Congressman Barney Frank was asked, “What do you think of the fact that the people repudiated your party?” He replied, “The people? They’re nothing to write home about either.” I wish more politicians spoke like that.

If politicians are more divided today than in the past, that’s because the voters are more divided. In what the journalist Bill Bishop calls “the Big Sort,” we’re now less likely to encounter people with whom we disagree on politics. We don’t go to the same clubs or the same churches. We don’t care to live on streets where our neighbors think us heartless bigots or preening idiots. Robert Dahl notes that people moderate their views when they’re not separated along political lines, geographically or socially; but if all the people one knows belong to the same party, the moderating influence disappears. When that happens, the man of the other side is not just an opponent, but an enemy.

I’ve always considered Mark Steyn a giddy optimist. Steyn wrote After America to describe a world after America’s withdrawal from the world stage. I think he nailed it, except that he missed a growing withdrawal of Americans from the United States. What is often absent today is pride in American institutions, in a common heritage. If American government worked better in the past, it’s because the country was more united then. There was a sense, last felt for a brief moment after 9/11, that we’re all in this together, that we can appeal meaningfully to the common good, that America might stumble but in the end would always remain faithful to its ideals. But that was then. If politicians today can’t agree across party lines, that’s no surprise. They’re just like us.

The faith in American exceptionalism and in the country’s special promise has also diminished, and the superiority of the country’s republican principles is little taught in classrooms today, if current textbooks are any guide. The brightest American high school students will take an AP American history course, and for most of them this will be the last course on the subject they’ll take. In it they’ll spend a great deal of time studying what’s wrong with the country, from the perspective of race, class and gender, but very little on what is admirable about America. The course exposes students to some of the more shameful moments in the country’s past, but pitilessly tears asunder the mystic chords of memory to which Lincoln appealed in his first inaugural address. In doing so, the course diminishes what the French writer Ernest Renan thought defines a nation: the sense that fellow citizens not only share glorious things but also have forgotten some unpleasant things.

Each year, an ill-educated cohort of voters—devoid of culture, of judgment, of an attachment to anything greater than themselves—arrives in America, a spectacle aptly described by the filmmaker Denys Arcand as “the Barbarian Invasions.” I am referring to the millennials, of course, but then we immigrants aren’t much better.

On April 15, 2014, after this book was first published, I became an American citizen. It was Tax Day. It was as if I had been told, “Welcome to America—here’s the bill!” But the naturalization ceremony was highly moving. I was with a group of more than a thousand new citizens, and we were asked to stand when the name of our former country was called out. The Venezuelans, as we discovered, are a very demonstrative people; the British and the Canadians far less so. But for all of us the ceremony was emotionally charged, and it was impossible to walk away without the highest of hopes for our new country. Perhaps that includes its Constitution, if the Supreme Court decides that it has a role to play in our constitutional crisis.

F. H. Buckley

Alexandria, Virginia

February 19, 2015