The Endless Expansion of Executive Power and the Erosion of Liberty

by Dane Stuhlsatz

Frederick Douglass said, “Power concedes nothing without a demand. It never did and it never will. Find out just what any people will quietly submit to and you have found out the exact measure of injustice and wrong which will be imposed upon them… The limits of tyrants are prescribed by the endurance of those whom they oppress.”

The United States is a nation of great prosperity and opportunity. As a result, our society is one that craves instant gratification, and asks, “What have you done for me lately?” Whether one self-identifies as a Republican or a Democrat, the justifications for government action to advance their ideals are the same. Both, seemingly polar-opposite partisans, ask that when “their guy” is in office that he achieve as much as possible. For this end, it is ok that “their guy” push the limits of constitutional authority, and view our founding document as an obstacle to overcome, rather than a line which must not be crossed.

Article II of the Constitution specifies narrow powers of the executive, and for good reason. The “sword,” which the executive possesses, if wielded too vigorously, can cut down a great swath of liberty. This was not lost on the generation which threw off the chains of a distant despot and colored the conversation of constitutional construction and debate of the late 18th and early 19th century.

Andrew Jackson began down the slippery slope of executive expansion, with his view that the majority is to rule, and the will of that majority should be effectuated through the office of the presidency. The sour taste left in the mouth of the American public as a result of Jackson’s often overzealous presidency led to a long line of “caretaker presidents,” from Martin Van Buren through James Buchanan. In what is almost considered a derogatory term for presidents who accomplished next to nothing, the administrations of the “caretaker presidents” are almost unrecognizable by the executive standard of today. Abraham Lincoln followed the “caretakers” and proceeded to trample the constitution at nearly every turn of his presidency. Lincoln attacked civil liberties, including suspending habeas corpus, and imposed martial law without explicit authority to do either. Some will eternally forgive these transgressions as compelled by necessity, but as William Pitt The Younger said, “Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.”

Theodore Roosevelt’s “bully pulpit,” Woodrow Wilson’s headlong rush into World War I and curtailment of civil liberties, FDR’s New Deal and Court Packing Plan, Harry Truman’s engagement in America’s first ever undeclared war, and, finally, the Cold War presidents are all examples of how the increasing expansion of the executive branch has been endless. Today, the National Defense Authorization Act (NDAA) allows for indefinite detention of American citizens without due process, the Patriot Act demolishes the 4th Amendment, outdated Authorizations for the Use of Military Force (AUMF) give executives a blank check to march off to war without Congressional approval, NSA spying eviscerates privacy, drone strikes of civilians on non-belligerent soil violate the Geneva Convention, and on and on.

A liberal might consider the growth of executive power in the hands of Obama a good thing. After all, he’s used that power to achieve “free” (for the sake of the argument) healthcare, killed Osama Bin Laden, laid the groundwork for “free” higher education, and other “quiet revolutions.” A conservative sees such sweeping authority in the hands of George W. Bush or Ronald Reagan as necessary to “keep us safe.” But what about Trump? What about Hillary? Is anybody ecstatic about the prospects of a belligerent xenophobe or a repeatedly federally investigated politician assuming all that power? Would it not be safer to limit their reach while in office rather than expand it? Such is the state of affairs after nearly 200 years of unchecked growth. The time has come for “We the People” to demand accountability and restraint.

Alexander Hamilton, writing as “Publius” in Federalist Paper No. 67, chastised Anti-federalist concerns over the power of the executive, which were characterized as “not merely [as] the embryo, but as the full-grown progeny of that detested parent.” Hamilton, James Madison, and John Jay wrote in passionate defense of the Constitution’s ability to constrain the powers of any one branch, especially the executive. However, if we refuse to demand the constraints on executive overreach, to which Hamilton, Madison, and Jay appealed to allay Anti-federalist fears, then we may regret the day when the embryo becomes more than progeny of that detested parent, but becomes the parent itself.

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