A New Model of Executive Power: A Montesquieuan Explanation of the Obama Presidency

Abstract

The perennial concern over executive overreach continues well into Obama's presidency, leading many to wonder if the “unitary executive” is here to stay. Discussions of executive war powers focus on three models. The Hamiltonian perspective gives presidents the lead position in foreign affairs; the second model, following Madison, presents Congress as the leader when initiating hostilities. Finally, Jeffersonians present emergency powers as extra-legal, giving presidents a sphere of actions that cannot be contained within constitutional discussions. Problematically, current scholarship implicitly or explicitly grounds these explanations in Locke's political philosophy. This occurs despite a dearth of references to Locke during the Constitutional Convention and infrequent references to his thought during early debates over executive-congressional divisions of war powers. Comparatively, all of these seminal American figures frequently mention Montesquieu, often fighting over the specifics of his theory. While scholars widely acknowledge this influence, they rarely mention him during discussions of war powers or the nature of executive power in general. This article examines the Montesquieuan understanding of executive power and shows how this model represents a viable alternative to the Lockean one. Most importantly, examining the executive from a Montesquieuan perspective provides solutions to current problems that the Lockean perspective does not.

Keywords:

• war powers
• executive-congressional relations
• the Founders
• Locke
• Montesquieu
• Obama
• Libya
• Syria

ACKNOWLEDGMENTS

The author thanks Mark Blitz, Tom Karako, Benjamin Kleinerman, John Pitney, and Sean Sutton for their comments on earlier drafts of this article. This article was originally prepared for presentation at the 2014 Annual Meeting of the American Political Science Association in Washington, DC.

Notes

¹ Louis Fisher, Presidential War Power (Lawrence: University Press of Kansas, 2004); Harold Koh, The National Security Constitution: Sharing Power After the Iran-Contra Affair (New Haven, CT: Yale University Press, 1990); Arthur Meier Schlesinger, The Imperial Presidency (Boston, MA: Houghton Mifflin Harcourt, 2004).

² John Yoo, The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11 (Chicago, IL: University of Chicago Press, 2006); Steven G. Calabresi and Christopher S. Yoo, The Unitary Executive: Presidential Power from Washington to Bush (New Haven, CT: Yale University Press, 2012).

³ Jack Goldsmith, “The Irrelevance of Prerogative Power, and the Evils of Secret Legal Interpretation,” in Extra-Legal Power and Legitimacy: Perspectives on Prerogative, ed. Clement Fatovic and Benjamin A. Kleinerman (New York: Oxford University Press, 2013), 214–31.

⁴ Édouard Laboulaye, “Etude sur L’Esprit des Loix, de Montesquieu,” Revue de Droit international et de Législation compare, I (1869), in Paul Merrill Spurlin, Montesquieu in America 1760-1801 (London: Octagon Books, 1969).

⁵ James Breck Perkins. France in the American Revolution (Boston: Houghton Mifflin, 1911), in ibid.

⁶ Thomas Pangle, The Spirit of Modern Republicanism: The Moral Vision of the American Founders and the Philosophy of Locke, reprint (Chicago: University Of Chicago Press, 1990); Louis Hartz, The Liberal Tradition in America, 2nd ed. (New York: Mariner Books, 1991); Martin Diamond, “Democracy and The Federalist: A Reconsideration of the Framers’ Intent,” The American Political Science Review 53, no. 1 (1959): 52–68; Michael P. Zuckert, The Natural Rights Republic: Studies in the Foundation of the American Political Tradition (Notre Dame, IN: University of Notre Dame Press, 1996); Paul A. Rahe, Republics Ancient and Modern, Volume III: Inventions of Prudence: Constituting the American Regime, vol. 3, 3 vols. (Chapel Hill:The University of North Carolina Press, 1994).

⁷ Gordon S. Wood, The Creation of the American Republic, 1776-1787 (Chapel Hill: The University of North Carolina Press, 1998); Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge: Belknap Press of Harvard University Press, 1992); J. G. A. Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (Princeton: Princeton University Press, 2003).

⁸ Edward Corwin, The President's Control of Foreign Relations (Princeton: Princeton University Press, 1917), 35.

⁹ Max Farrand, The Framing of the Constitution (New Haven, CT: Yale University Press, 1926), 50.

¹⁰ Donald S. Lutz, “The Relative Influence of European Writers on Late Eighteenth-Century American Political Thought,” The American Political Science Review 78, no. 1 (March 1, 1984): 190, 193.

¹¹ Ralph Ketcham, ed., The Anti-Federalist Papers and the Constitutional Convention Debates (New York: Signet Classics, 2003).

¹² Ibid., Centinel, 1, 236; Herbert J. Storing and Murray Dry, The Complete Anti-Federalist (Chicago: University of Chicago Press, 1981); Patrick Henry's Opening Speech: “A Wrong Step Now and the Republic Will Be Lost Forever,” June 4, 1788, 5.209.

¹³ Centinel, 1, The Anti-Federalist Papers and the Constitutional, 236. Patrick Henry seconds this opinion; see Patrick Henry's Opening Speech: “A Wrong Step Now and the Republic Will Be Lost Forever,” June 4, 1788, in The Complete Anti-Federalist, ed. H. J. Storing (Chicago: University of Chicago Press, 1981), 5.209.

¹⁴ Storing and Dry, The Complete Anti-Federalist, 5.234; 5.44.

¹⁵ Jacob Levy, “Montesquieu's Constitutional Legacy,” in Montesquieu and His Legacy, ed. Rebecca E. Kingston (Albany: State University of New York Press, 2009).

¹⁶ Catherine Larrère, “Montesquieu and Liberalism: The Question of Pluralism,” in Montesquieu and His Legacy, ed. Rebecca E. Kingston (Albany: State University of New York Press, 2008).

¹⁷ Andrea Radasanu, “Montesquieu on Monarchy, Moderation and Reform,” History of Political Thought 31, no. 2 (2010): 283–308; Paul A. Rahe, Montesquieu and the Logic of Liberty: War, Religion, Commerce, Climate, Terrain, Technology, Uneasiness of Mind, the Spirit of Political Vigilance, and the Foundations of the Modern Republic (New Haven, CT: Yale University Press, 2010); Thomas Pangle, Montesquieu's Philosophy of Liberalism: A Commentary on The Spirit of the Laws (Chicago: University Of Chicago Press, 1989).

¹⁸ See Sharon Krause, Liberalism with Honor (Cambridge: Harvard University Press, 2002); Michael A. Mosher, “Monarchy's Paradox: Honor in the Face of Sovereign Power,” in Montesquieu's Science of Politics: Essays on The Spirit of the Laws, ed. David Carrithers, Mosher, Michael A., and Paul Anthony Rahe (Lanham, MD: Rowman & Littlefield, 2001) on this point.

¹⁹ In this article Carrithers demonstrates that Montesquieu does not see all republics as virtuous by examining his discussion of the Italian city-states. David Carrithers, “Not so Virtuous Republics: Montesquieu, Venice, and the Theory of Aristocratic Republicanism,” Journal of the History of Ideas 52, no. 2 (April 1991): 245–68. It should be noted that even ancient republics do not all share the same dependence on virtue as the spring for the state; see for example Marseilles and Carthage (XXI.11), and he even presents England as a republic disguised as a monarchy, providing further evidence that his typology is relaxed dramatically over the course of the work.

²⁰ It is important to note that despotic states are excluded from this category of government. It is by nature immoderate because of its emphasis on domination through fear. As Montesquieu says “[in despotic states], men's portion, like beasts’, is instinct, obedience, and chastisement…[in] moderate states, power is limited by that which is its spring.” Charles-Louis de Secondat Montesquieu, The Spirit of the Laws, trans. Anne M. Cohler, Basia Carolyn Miller, and Harold Samuel Stone (Cambridge: Cambridge University Press, 1989), III.10.

²¹ This is a very controversial position. While Dijn, Krause, and Levy would argue that Montesquieu does not think republics can be moderate, Pangle and Rahe argue the opposite. Annelien de Dijn, “Was Montesquieu a Liberal Republican?” The Review of Politics 76, no. 01 (2014): 21–41; Jacob Levy, “Beyond Publius: Montesquieu, Liberal Republicanism and the Small-Republic Thesis,” History of Political Thought 27, no. 1 (2006): 50–90; Pangle, Montesquieu's Philosophy of Liberalism; Rahe, Montesquieu and the Logic of Liberty; Sharon Krause, “The Spirit of Separate Powers in Montesquieu,” The Review of Politics 62, no. 2 (2000): 231–65.

²² While an examination of all three branches in The Spirit of the Laws and The Federalist Papers would yield more solid evidence for the claim that the American Constitution reflects a Montesquieuan understanding of the separation of powers, it is beyond the scope of this article.

²³ Ward says that Montesquieu worried about the immoderation of the legislature, saying the English would be the most enslaved if they lost their liberty. Ward argues that the elimination of the “prerogatives of the lords, clergy, nobility and towns” has caused power to centralize in the central government (II.4). So Ward suggests that England will become the most enslaved (II.4) because she will be completely controlled by the legislature. This is why he says it can easily become corrupt, especially because the executive does not have a significant amount of power to check its actions. The only thing the executive can use is his ability to provide patronage. If he does not have sufficient posts to use this power or if he abuses it, the legislature has a lot of power to curtail him and may take an extreme action, eliminating his power to offer patronage. Manent (1994) and Rahe (2001) contend that the party system solves this issue. The people favor the legislature or the executive, and they often switch their allegiance, keeping both powers in check.

²⁴ It should be noted that both of these quotes refer to the kingships of heroic times among the Greeks; however, in the following chapter he compared the Roman monarchy to the heroic kings. Their similarity stems from their distribution of powers. Both neglected to give the king any veto power. Both gave him too many other powers, such as judicial power (Cf. XI.21 with XI.12).

²⁵ As he explains “In this fashion the power of judging, so terrible among men, being attached neither to a certain state nor to a certain professions, becomes, so to speak, invisible and null” Montesquieu, The Spirit of the Laws, XI.6.

²⁶ Cf. Alexander Hamilton, James Madison, and John Jay, The Federalist Papers, ed. Clinton Rossiter and Charles R. Kesler (New York: Signet Classics, 2003), #67 with Storing and Dry, The Complete Anti-Federalist Cato, V.

²⁷ Hamilton, Madison, and Jay, The Federalist Papers Cf. #69 with #71.

²⁸ Representative government only controls the effects of faction through the extended sphere and representation. It cannot eliminate it without destroying liberty as we know from Madison's explanation in Federalist #10 (Hamilton et al., #10).

²⁹ James Madison, The Papers of James Madison, ed. Thomas A. Mason, Robert A. Rutland, and Jeanne K. Sisson, vol. 15 (Charlottesville: University of Virginia Press, 1985), Vol. 12 From James Madison to Thomas Jefferson, February 4, 1790. He also reiterates this point in Federalist #49.

³⁰ John Locke, Locke: Two Treatises of Government Student Edition (Cambridge: Cambridge University Press, 1988), XIV, 160.

³¹ Ibid., XIV. 163.

³² It is important to note that Madison's position on executive power shifts dramatically from the creation and ratification of the Constitution to the exercise of executive power in the Washington administration. During the former period, Madison supported the change of “make” to “declare” war to allow the executive to repel sudden attacks. He also supported the executive's right to remove officers to encourage executive responsibility while allowing executive autonomy. He recognized that an effective government required an energetic president. As Ketcham notes, “the executive power as it emerged from the convention suited Madison as a reasonable compromise between the needs of authority and of limitation” (Ketcham 1989, 349). Unlike Hamilton, Madison saw the executive power in a republic as qualitatively different than the executive power in a monarchy. His full understanding of the nature of that power does not come to fruition until 1789 after observing the precedent set by Washington (Ketcham 1989, 350). Madison's apprehension about the steady movement toward a more monarchic model came to the fore during the first administration as Washington exercised it with Hamilton's guidance. Madison saw Hamilton trying to create a branch that would “lead and dominate the nation” rather than simply execute the will of the legislature (Ketcham 1989, 351). This caused Madison to dramatically reassess how the political branches should interact. In an effort to combat Hamilton forcefully, he goes from calling Montesquieu “the oracle who is always consulted and cited on this subject” in Federalist 47 to lambasting him as a foolish admirer of England's supposed charms. It is therefore not Madison of The Federalist Papers who rejects Montesquieu, but Madison, who fears Hamilton's view of executive power that uses Montesquieu to combat this new enemy. This fear of executive enlargement continues in Madison's thought and actions through his presidency. He is especially fearful of wars because it is “the true nurse of executive aggrandizement” (Helvidius 1). It is therefore necessary to combat this by giving Congress the power to determine whether or not war will commence. While it could be argued that Madison actually sees the decision to go to war as a deliberative power (Kleinerman 2013), it is also possible to see this as a means of combating the very collection of power into one set of hands, he warned against in The Federalist Papers A more in-depth discussion of this question is beyond the scope of this article. Benjamin Kleinerman, “The Constitutional Ambitions of James Madison's Presidency,” Presidential Studies Quarterly 44, no. 1 (March 1, 2014): 6–26.

³³ Goldsmith, “The Irrelevance of Prerogative Power, and the Evils of Secret Legal Interpretation.”

³⁴ James M. Lindsay, “The Shifting Pendulum of Power,” in The Domestic Sources of American Foreign Policy: Insights and Evidence, 6th ed. (Lanham, MD: Rowman & Littlefield, 2012), 227.

³⁵ Ibid., 228.

³⁶ Mariah Zeisberg, War Powers: The Politics of Constitutional Authority (Princeton; Oxford: Princeton University Press, 2013), 93. In this debate Congress attempted to beat back the expansive understanding of presidential war making seen in Roosevelt's and Truman's administration. Due to Cold War security concerns, this effort did not continue, which may have contributed to the abuses of power in the Vietnam War.

³⁷ John E. Mueller, “Presidential Popularity from Truman to Johnson,” The American Political Science Review, 1970, 18–34; John R. Oneal and Anna Lillian Bryan, “The Rally ‘Round the Flag Effect in U.S. Foreign Policy Crises, 1950–1985,” Political Behavior 17, no. 4 (December 1, 1995): 379–401; Marc J. Hetherington and Michael Nelson, “Anatomy of a Rally Effect: George W. Bush and the War on Terrorism,” PS: Political Science & Politics null, no. 01 (January 2003): 37–42.

³⁸ Richard Brody, Assessing the President: The Media, Elite Opinion, and Public Support (Stanford, CA: Stanford University Press, 1992), 63–72.

³⁹ In December 2013, Pew conducted a poll to determine why the public did not support the action in Syria and generally seems reluctant to support military action, the most frequent response was “war fatigue” or combat in Afghanistan and Iraq, the second most common answer was the U.S. economy or cost of involvement. “Why Has the Public Turned Inward? Many CFR Members Cite ‘War Fatigue,’” Pew Research, accessed December 20, 2014, http://www.people-press.org/2013/12/03/public-sees-u-s-power-declining-as-support-for-global-engagement-slips/12-3-2013-5/.

⁴⁰ Public approval of action in Libya reached record lows, only to be surpassed by the negative public reaction to the possibility of action in Syria in September 2013. Jeffrey M. Jones, “Americans Approve of Military Action Against Libya, 47% to 37%,” Gallup, March 22, 2011, http://www.gallup.com/poll/146738/americans-approve-military-action-against-libya.aspx; Andrew Dugan, “U.S. Support for Action in Syria Is Low vs. Past Conflicts,” Gallup, September 6, 2013, http://www.gallup.com/poll/164282/support-syria-action-lower-past-conflicts.aspx.

⁴¹ Lee H. Hamilton, “The Making of U.S. Foreign Policy: The Roles of the President and Congress over Four Decades,” in Rivals for Power, 3rd ed. (Lanham, MD: Rowman & Littlefield, 2006), 277.

⁴² Rosa Brooks, “Statement to the Senate Judiciary Subcommittee on Constitution, Civil Rights and Human Rights,” Targeted Killing of Terrorist Suspects Overseas Hearing, April 23, 2013, accessed December 30, 2014, http://www.c-span.org/video/?312317-1/senate-committee-examines-legality-us-drone-strikes.

⁴³ While there is a great deal of debate about the constitutionality of the War Powers Resolution, the Obama administration addresses it and the constitutionality of the Resolution is not a central concern to this article. As such I will treat it as law.

⁴⁴ U.S. White House, “Letter from the President Regarding the Commencement of Operations in Libya,” accessed January 8, 2013, http://www.whitehouse.gov/the-press-office/2011/03/21/letter-president-regarding-commencement-operations-libya.

⁴⁵ Louis Fisher, “The Law: Military Operations in Libya: No War? No Hostilities?,” Presidential Studies Quarterly 42, no. 1 (2012): 178.

⁴⁶ Steven Lee Myers and Rachel Donadio, “U.S. Seeks to Give Libyan Rebels Seized Assets,” The New York Times, May 5, 2011, http://www.nytimes.com/2011/05/06/world/africa/06diplo.html.

⁴⁷ The War Powers Resolution (WPR) does not define hostilities; it specifies that Presidents must report to Congress when the U.S. forces are introduced “into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances…” or “into the territory, airspace or waters of a foreign nation, while equipped for combat…[or] in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation” (WPR, §4, a, 2, 3). Because neither of these other two circumstances reflect the nature of U.S. military involvement in Libya, Obama's report to Congress must relate to hostilities (Section 2) and nothing in the Act waives the need for congressional action because the hostilities are limited after the sixty-day mark.

⁴⁸ Gary C. Jacobson, “Barack Obama, the Tea Party, and the 2010 Midterm Elections,” Extensions Summer (2011): 1–7.

⁴⁹ http://www.whitehouse.gov/the-press-office/2013/08/31/statement-president-syria (accessed June 14, 2014), quoted in Douglas L. Kriner, “The Contemporary Presidency: Obama's Authorization Paradox: Syria and Congress's Continued Relevance in Military Affairs,” Presidential Studies Quarterly 44, no. 2 (June 2014): 309–27.

⁵⁰ Ibid.

⁵¹ As quoted in Ed O’Keefe, “More than 100 Lawmakers Ask Obama to Seek Congressional Approval on Syria Strikes,” The Washington Post, August 28, 2013, http://www.washingtonpost.com/blogs/post-politics/wp/2013/08/28/more-than-100-lawmakers-ask-obama-to-seek-congressional-approval-on-syria-strikes/.

⁵² As quoted in Meteor Blades, “Rep. Barbara Lee and 53 Other Democrats Sign Letter to Obama Urging Debate on Syria,” accessed August 18, 2014, http://www.dailykos.com/story/2013/08/29/1234894/-Rep-Barbara-Lee-and-53-other-Democrats-sign-letter-to-Obama-urging-debate-on-Syria.

⁵³ Congress proved incapable of sanctioning (or supporting) him in 2011; the courts are reluctant to enter into political questions associated with war powers and the people do not punish unilateral action, they punish military failure. Cf. Frank Newport, “Americans Back Bin Laden Mission; Credit Military, CIA Most,” Gallup, May 3, 2011, http://www.gallup.com/poll/147395/americans-back-bin-laden-mission-credit-military-cia.aspx with; Sarah E. Croco, “The Decider's Dilemma: Leader Culpability, War Outcomes, and Domestic Punishment,” American Political Science Review 105, no. 03 (2011): 457–77.

⁵⁴ Obama's statement regarding the “red line” has an ambiguity typically unaddressed in discussions about his statement. The full quote provides evidence of that ambiguity: “We have been very clear to the Assad regime, but also to other players on the ground, that a red line for us is we start seeing a whole bunch of chemical weapons moving around or being utilized. That would change my calculus. That would change my equation.” Glenn Kessler, “President Obama and the ‘red Line’ on Syria's Chemical Weapons,” The Washington Post, September 6, 2013, http://www.washingtonpost.com/blogs/fact-checker/wp/2013/09/06/president-obama-and-the-red-line-on-syrias-che-mical-weapons/.

⁵⁵ While the Senate Foreign Relations Committee did approve a resolution to authorize the use of force in Syria, neither the House nor the Senate had the opportunity to call a vote prior to the deal negotiated amongst the participants in the Geneva meeting. Cf Anne Gearan O’Keefe Ed and William Branigin, “Senate Committee Approves Resolution Authorizing U.S. Strike on Syria,” The Washington Post, September 4, 2013, http://www.washingtonpost.com/world/national-security/officials-press-lawmakers-to-approve-syria-strike-obama-invokes-congresss-credibility/2013/09/04/4c93a858-155c-11e3-804b-d3a1a3a18-f2c_story.html with the text of S.J. Res. 21 “Authorization for the Us of Military Force Against the Government of Syria to Respond to Use of Chemical Weapons,” Congressional Record (September 6, 2013), p. S6269, introduced on September 6, 2013, and Harry Reid's continuing motion on September 10, (NV). “Authorizing the Limited and Specified Use of the United States Armed Forces Against Syria–Motion to Proceed” Congressional Record (September 10, 2013), p. S6273. Neither House attempted to pass the resolution after that point.

⁵⁶ Max Fisher, “This Is the Hard Part: Getting That Syria Plan through the United Nations,” The Washington Post, September 10, 2013, http://www.washingtonpost.com/blogs/worldviews/wp/2013/09/10/this-is-the-hard-part-getting-that-syria-plan-through-the-united-nations/; Max Fisher, “Everything Is a Negotiation: How to Understand the Obama-Putin-Assad Standoff,” The Washington Post, September 13, 2013, http://www.washingtonpost.com/blogs/worldviews/wp/2013/09/13/every-thing-is-a-negotiation-how-to-understand-the-obama-putin-assad-stand-off/.

⁵⁷ Fisher, “Everything Is a Negotiation.”

⁵⁸ Leonard C. Feldman, “Lockean Prerogative: Productive Tensions,” in Extra-Legal Power and Legitimacy: Perspectives on Prerogative, ed. Clement Fatovic and Benjamin A. Kleinerman (Oxford: Oxford University Press, 2013), 79.

⁵⁹ Locke, Locke, II.XII §147.

⁶⁰ Ibid., II.XIII §153.

⁶¹ This state of affairs stems from how Locke conceptualizes the change from the state of nature to the creation of society. In the state of nature man is free and he has the executive power. People come into society because there is a dramatic lack of security in the state of nature. In other words, people are afraid in the state of nature; their person and possessions are insecure; governments were there to preserve peace and prosperity. John Locke, A Letter Concerning Toleration.

⁶² Locke, Two Treatises, II.VI §9.

⁶³ Locke, Two Treatises, 2.19.

⁶⁴ Harvey C. Mansfield, Taming the Prince (New York: Free Press, 1989), 221–22.

⁶⁵ Goldsmith, “The Irrelevance of Prerogative Power, and the Evils of Secret Legal Interpretation.”

⁶⁶ Hamilton, Madison, and Jay, The Federalist Papers, #49.