September 1, 2009


Government has greatly increased its role in directing the economy. Is it appropriate to go so far, so fast?

The White House and Congress, in a very short period of time, are making substantial, sometimes unprecedented changes to public policy, with long-term, significant implications for the federal government’s function and responsibilities, to say nothing of the national debt. Starting with the financial services bailouts in 2008, the federal government has acted aggressively and with increasing speed to create or propose changes in the auto industry, climate change, health care, corporate accounting, financial services regulation and public education, among other major areas.

Two constitutional scholars, Bruce Fein with the Heritage Foundation and Mark Tushnet of Harvard Law School, were asked by Forward to consider the historical precedents and long-term implications of these sweeping changes.

Mark Tushnet, William Nelson Cromwell Professor of Law at Harvard Law School, served as a law clerk to Justice Thurgood Marshall. His research has included examination of the practice of judicial review around the world. He has written about constitutional and legal history, including works on the development of civil rights law in the United States and on the history of the Supreme Court in the 1930s.

There are two dimensions to the question of constitutionality. One is about the size and the other is about the nature of the programs that the government is engaging in. If the programs are within the government’s constitutional power, the size of them is irrelevant. So the question is, does the Constitution give the [federal government] this kind of power?

The answer is rooted in history. Since the 1930s [with the start of President Franklin Roosevelt’s New Deal program in 1933] we’ve come to accept a great deal of government intervention in the economy. Some of the things that are being done, like the investment in bailouts, actually go back much further in U.S. history, to the 1830s and 1840s, when the U.S. government invested in what we now call infrastructure—roads and port improvements—to ensure economic growth. That’s pretty much what the current programs are doing, although under different names.

The answer is our constitutional tradition does license the government to do the kind of things that it’s proposing to do. The size doesn’t really matter.

Everybody agrees, I think, that each branch—Congress and the president, as well as the court—has the authority to read the Constitution according to its best judgment. And so the president will have advisers who will make arguments in support of, or sometimes against, what the president wants to do, and the president will act on their advice, or sometimes disregard it.

In any event, it’s clear that the president has the authority to make these kinds of decisions in pretty much any area, not merely on executive power, war-on-terror kinds of issues. That doesn’t mean that every president will want to. The real questions arise when there are conflicts between what the president says the Constitution means and what the courts or Congress say it means.

At some level the changes [in terms of government’s increasingly large role] are permanent and irreversible. [What a president chooses to do] is going to depend on the particular contours and political power and the times in which the president wants to make the decision. But as a general matter, expansion of presidential authority is irreversible.

Presidential Power

It is rare [when a president has been found to actually have run afoul of the Constitution]. There are a couple of configurations to address. The most important one is where the president takes a position and the courts or Congress definitively reject that position and the president goes ahead and does it anyway. With respect to courts, it’s extremely rare. Harry Truman, for example, withdrew when the courts ruled against him in 1952 when he seized steel mills to prevent strikes. Richard Nixon turned over the Watergate tapes. Abraham Lincoln had an opinion filed against him by Chief Justice Roger Brooke Taney acting as a judge for the circuit court of Maryland in 1861. The legal issue was whether Lincoln could suspend habeas corpus without Congress’ permission or authorization. Lincoln actually said, when he reported to Congress [something along the lines of], “If you disapprove of what I did, let me know and I’ll change my policy.”

Those kinds of conflicts are quite rare. The one that actually occurred is where Congress passed a statute over Andrew Johnson’s veto. Johnson broke the Tenure of Office Act—which required Senate approval to confirm or dismiss appointees—by dismissing Edwin Stanton as Secretary of War. He did remove Stanton, and Congress impeached Johnson. So you have, in a generous count, fewer than five examples of these kinds of conflicts in our history.

More often, presidents stake out, as a rhetorical matter, extremely aggressive positions, and then under pressure retreat from them to a moderately aggressive position, but one that doesn’t generate the kind of political opposition that Andrew Johnson’s position did.

At some level I think that’s the best description of what happened with President George W. Bush. The [war-on-terror] theories that his administration asserted were extremely aggressive. The clearest example is the signing of the statement that [essentially] says, “I am going to interpret the anti-torture provision in a manner consistent with my constitutional authorities,” at a time when President Bush had already ordered that the techniques at issue not be used. So he said, “Yeah, I have this power,” but in fact he didn’t assert it.

The People Have Spoken

In terms of our understanding of our constitutional order, it would be a good idea if there were more of a conversation about [the actions the current government has taken or proposed]. All the venues that we have for public discussion—CNN, Larry King, CNBC—and the House and Senate should be involved.

But I think the reason there isn’t is that the American people essentially have come to a judgment, that having a government that has the power to engage in these kinds of activities, when necessary, is a good idea. At some level, it’s not an open question for us at this point.

Our representatives in Congress tend to frame these issues as policy disputes—the stimulus either will or won’t work, for example, rather than questions about constitutional authority. And maybe that’s because they know the American people have accepted the issue of authority and just want them to decide what appropriate policy is. It’s fine in our constitutional system for big changes to follow big elections.

Bruce Fein has assisted three dozen countries with their constitutional revisions, including Iraq and Russia, and has been an adjunct scholar with the American Enterprise Institute, a resident scholar at the Heritage Foundation, a lecturer at the Brookings Institute and an adjunct professor at George Washington University. He is now a principal with the Lichfield Group, a Washington, D.C.-based consulting organization, and also served as associate deputy attorney general in the Reagan administration and research director for the Joint Congressional Committee on Covert Arms Sales to Iran.

Here’s the greatest danger we have as a culture today. It’s what [historian Edward] Gibbon said killed Athens. When they came to treasure comfort more than freedom and liberty, they lost everything: comfort, freedom and liberty.

I’m completing a book, called From a Republic to an Empire, showing how all previous empires were not able to turn back from the arrogance and overweening government interference as they tried to reduce risk to zero—no risks from abroad, no economic risks. They threw money, they threw government regulations, they threw soldiers everywhere they saw risk—instead of understanding that the oxygen of freedom is a certain amount of prudent risk.

Yet despite the massive government interference we’re seeing today, the public hasn’t been out [in large numbers] demonstrating about anything. Despite all the recent crises, where are the protestors, where is the civil rights movement, where are the Martin Luther Kings?

We don’t have a public that’s mature enough to see the long-term hazards of this lack of public discussion. A culture that gets absorbed more by the death of singer Michael Jackson than the heroes in Tehran braving bullets and thugs to get freedom is not a mature political culture.

Big Spending

How did we come to this state of such massive government spending? One reason is the U.S. Supreme Court has basically bailed out on any effort to restrain the spending authority of the United States, which [now] can spend money on virtually anything it wishes.

There have been some exceptions, though, in which the Supreme Court has tried to put limitations on what the federal government can do. For example, in a series of cases, the court interpreted the due process clause of the Fifth Amendment to impose binding limitation on the federal government to impair obligations of contracts when they would retroactively upset bargains negotiated in the private sector. That was an issue with regard to some of the plans to subordinate senior bond holders in the General Motors and Chrysler bailouts, that under the existing law in bankruptcy they would have had preferences. The government then came along and said, “To get those companies out of bankruptcy we’re going to have a resell, but you’re going to have to have a much more limited stock ownership than you would if your initial bargain for security was honored.”

Another reason for the current level of federal spending is that Congress has basically surrendered its authority over the economy to the president. In the bailout legislation, Congress simply provided trillions of dollars and told the president, “You go spend it wherever you want to try to stimulate the economy.” In the Troubled Asset Relief Act, although the beneficiaries were confined to financial institutions, the executive branch later interpreted that to mean Chrysler and General Motors. When the issue tried to get into court, the court refused to hear the case “on standing” rather than address the merits.

So what we have is not a matter of executive supremacy by usurpation, if you will, of the ability to interpret what the law means. It’s by Congressional surrender. That is really rather revolutionary in the sense that one branch of government basically abdicates any desire for responsibility for the economic trajectory of the United States.

Our tradition has been to limit government enterprises—the post office and Amtrak, for example—to the margins of the economy. But the federal government now has become a substantial shareholder in private enterprise. There is no constitutional limitation on what the government wishes to do in buying up private shares and turning the United States into a far more statist economy like France. We seem to be going not to the margins but to the “commanding heights,” which is a phrase Vladimir Lenin used about the Soviet Union.

Now the Congress delegates even what used to be its exclusive responsibility for initiating war to the president. The Iraq War Resolution [in 2002] was not a resolution to go to war, it was a resolution saying, “Mr. President, if you want to go to war, we’re OK with that.” It was like the Tonkin Gulf Resolution [which in 1964 gave President Lyndon Johnson Congressional approval to employ military force in Southeast Asia]. Both of them represented staggering abdications of Congressional responsibility for war.

What can be done to try to reverse this trend?

The political culture will have to change. The American people have got to say, “We don’t want all this government intervention.” I was in Congress the first day the House of Representatives entertained the initial version of the Emergency Economic Stabilization Act in September 2008, when the faxes and the e-mails and the phone calls came in against it. A very liberal member said, “I don’t care whether [then-U.S. Treasury Secretary] Henry Paulson and all the experts tell me to go forward with this. If my constituents don’t want it, I’m not voting for it.” You remember the rebuff the House gave to that legislation [rejecting it by a vote of 228-205]. It changed its mind after the public mood changed, but it’s obvious that if the public says, we don’t want this, Congress and the president will respond.

So can things change? The answer is yes, but you need proper leadership. You need someone running for president who says, “I don’t want all the power. You know more how to use your money than I do. I want to cut government back. I want to make you the captains of your fate.” There’s no guarantee it will happen. It wasn’t guaranteed we’d get George Washington, either, but we did.

Nothing is irreversible. History is biography, it is not mathematics.