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The Presidency : Facing Constitutional Crossroads
 9780813946061, 9780813946054

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THE PRESIDENC Y

Miller Center Studies on the Presidency Marc J. Selverstone, Editor

THE PRESIDENC Y Facing Constitutional Crossroads Edited by Mic h a el N el son

a n d  B a r b a r a A . P erry

U n i v e r si t y o f V i r g i n i a P r e ss Charlottesville and London

University of Virginia Press © 2021 by the Rector and Visitors of the University of Virginia, Miller Center “Crossroads in Vice-­Presidential History” © 2021 by Joel K. Goldstein All rights reserved Printed in the United States of America on acid-­free paper First published 2021 9 8 7 6 5 4 3 2 1 Library of Congress Cataloging-­in-­Publication Data Names: Nelson, Michael, editor. | Perry, Barbara A., editor. Title: The presidency : facing constitutional crossroads / edited by Michael Nelson and Barbara A. Perry. Description: Charlottesville : University of Virginia Press, [2021] | Series: Miller Center studies on the presidency | Includes bibliographical references and index. Identifiers: LCCN 2020051264 (print) | LCCN 2020051265 (ebook) | ISBN 9780813946054 (hardcover) | ISBN 9780813946177 (paperback) | ISBN 9780813946061 (ebook) Subjects: LCSH: Presidents—United States. | Executive power—United States. | Constitutional law—United States. Classification: LCC JK516 .P6395 2021 (print) | LCC JK516 (ebook) | DDC 342.73/062—dc23 LC record available at https://lccn.loc.gov/2020051264 LC ebook record available at https://lccn.loc.gov/2020051265 Cover art: Shutterstock/ivn3da

CONTENTS

Acknowledgments vii Presidential Crossroads Michael Nelson

1

The Living Presidency: Always at a Crossroads Saikrishna Bangalore Prakash

7

Crossroads of the (c)onstitutional Presidency: How Ten Extraconstitutional Landmarks Shaped the Office Michael Nelson

28

On Being Unpresidential: The Trumpian Moment in Historical Perspective Richard J. Ellis

49

The People, the President, and the Congress at a Crossroads: Can We Turn Back from Gridlock? Jennifer L. Lawless and Sean M. Theriault

72

The Crossroads of Impeachment: The Threat of Removal and the Separation of Powers Andrew Rudalevige

86

American Regicide: Postwar Presidents and the Bitter Politics of Returning to Normalcy Russell L. Riley

118

The Personal Presidency at a Constitutional Crossroads Barbara A. Perry and Stefanie Georgakis Abbott

137

Civil-­Military Relations: Crossroads and Cross-­Currents Bradley R . DeWees

154

Crossroads in Vice-­Presidential History Joel K. Goldstein

175

Presidents, Refoundings, and the “Living Constitution” Sidney M. Milkis

200

Notes on Contributors

227

Index

229

ACKNOWLEDGMENTS

Early in Bill Antholis’s tenure as director and CEO of the University of Virginia’s Miller Center, he encouraged its Presidential Studies unit to embark on a multi-year endeavor to study the American presidency. We are grateful to him for his foresight, inspiration, and support; and to Professors Sid Milkis, Russell Riley, Marc Selverstone, Guian McKee, and Melody Barnes for, along with this book’s editors, planning and executing the lecture series that inspired this book. We also thank the scholars beyond the Miller Center whose chapters appear in this book and whose names appear in the table of contents. Bill encouraged the chair and vice-chair of the Governing Council at that time, Alice Handy and Steve Burns, to support our research, forums, lectures, and writing. They and the board never wavered in supporting our work. The late journalist Jim Lehrer, who served as a valued member of the Miller Center Governing Council until his passing in 2020, always pressed us to move ever “onward” as we studied the institution about which he cared deeply. Contributions to support the Presidential Studies research agenda also came from Alison Cryor DiNardo and Robert DiNardo, Margaret Hart, and the Brinson Foundation, for which we are most appreciative.  We could not have completed this book without the unstinting assistance of the Miller Center’s staff: Associate Director of Presidential Studies Stefanie Georgakis Abbott, Faculty and Program Coordinator Alfred Reaves IV, Chief Operating Officer Meghan Murray, Director of Administration and Finance Andrew Chancy, Procurement Specialist Nancy Dean, Librarian and Managing Editor of American President Sheila Blackford, Research Director for Public and Policy Programs Cristina Lopez-Gottardi Chao, Director of Communications and Managing Editor Howard Witt, and Director of Information Technology Michael Greco. We are equally grateful to the University of Virginia Press’s Director Suzanne Morse Moomaw, Editor of History and Social Sciences Nadine Zimmerli, Senior Project Editor Morgan Myers, Marketing Manager Emma Donovan, and Publicity and Social Media Director Emily Grandstaff. All of them embraced this book’s concept enthusiastically and guided its production to successful completion. Kate Mertes compiled a comprehensive index that will direct readers to the many topics addressed in this compendium.

THE PRESIDENC Y

PRESIDENTIAL CROSSROADS MICHAEL NELSON

The traveler arrives at an intersection where roads cross and must decide which one to take and which direction to go: right, left, forward, or even back. Whatever the decision, more crossroads and further choices about which way to proceed await. Not a perfect metaphor for what Americans presidents have done when arriving at historical junctures, but perhaps a useful one nonetheless. In reality, centuries—233 years and counting since the Constitutional Convention of 1787—rather than miles measure the journey. The travelers—forty-­five presidents as of 2020 but only one at a time—confront crossroads in the form of circumstances that permit but do not require changes in direction. The map, an essential guide for the journey but unclear or incomplete in places, is analogous to the Constitution. And, as any traveler knows, changing and often hard-­ to-­anticipate conditions—whether a road-­blocking wreck that impedes the journey or a new lane on the highway that quickens it—inevitably occur along the way. Altered circumstances in the economy, the social fabric, the international arena, and other contextual elements similarly create the obstacles and opportunities that confront presidents. Under the aegis of the University of Virginia’s Miller Center, The Presidency: Facing Constitutional Crossroads brings together a dozen presidential scholars whose charge was to go both deep and wide in their consideration of the office—deep in the sense of penetrating scholarship and wide in the sense of broad substantive and historical coverage. Their essays were written during the presidency of Donald Trump, a time when issues—some longstanding, some new—relating to the constitutional presidency stood out in especially sharp relief. Bookshelves are filled with works narrowly focused on Trump. This book is designed to provide the sort of historical and constitutional coverage of the office that can help us put the Trump presidency—and those of his successors—into proper context. In the next essay, legal scholar Saikrishna Bangalore Prakash describes the presidency as “always at a crossroads,” starting with the Constitutional Convention that created the office. Multiple decisions that could have gone any number of ways were made at that gathering to strengthen the executive, including 1

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designing it as a unitary office whose occupant is chosen independently of Congress for a fixed, reasonably long term. Although the Framers also included multiple checks on the president, Prakash observes that over time “the acquisition of a parallel war power, the evasion of limits on the president’s direction of foreign affairs, and the assumption of lawmaking authority all bespeak a willingness to alter the Constitution through practice.” Structurally, the hundreds of members who make up Congress and the hundreds of judges who constitute the federal courts have been “fractured by their sheer multiplicity,” hobbled by internal disagreements in confrontations with the president, whose will and voice are undivided. Prakash concludes by offering five “fixes” designed to revive Congress’s institutional capacity to resist presidential encroachments. Neither Prakash’s analysis of the living presidency nor his proposed remedies involve formal amendments to the Constitution, which require hard-­to-­obtain supermajorities in Congress and the states that are nearly impossible to achieve on controversial matters. Starting with the Twelfth Amendment in 1804, only four amendments concerning the presidency have been added to the document. The Twelfth charged electors in presidential elections to indicate separately whom they support for president and whom for vice president, revising the original constitutional mandate to vote for two candidates for president with the runner-­up becoming vice president. The Twentieth Amendment, added in 1933, moved the starting date of the president’s term from March 4 to January 20, reducing the length of the transition from election to inauguration. The Twenty-­ second Amendment (1951) codified the tradition of limiting presidents to two terms after the single instance of the custom’s violation, which occurred when voters elected Franklin D. Roosevelt to a third and a fourth term in the unusual wartime circumstances of the early and mid-­1940s. The Twenty-­fifth Amendment (1967) filled a gap in the original Constitution by providing processes through which issues of presidential disability could be addressed and vacancies in the vice presidency could be filled. As political scientist Michael Nelson shows in his essay, the most substantive changes in the presidency have occurred less through amendments to the Constitution than through alterations in what he calls the “small-­c constitution”—that is, “the rules—some unwritten, some legislative, and some party-­based—that govern presidential conduct.” These changes in the office “have been animated by changes in norms, customs, and expectations.” Nelson describes ten such alterations. One example from the nineteenth century was Andrew Jackson’s decision to veto any bill passed by Congress that he found objectionable, whether he regarded the bill as unconstitutional or not. The “capital-­C Constitution” provides no guidance about when vetoes are appropriate, and previous presidents, notably George Washington, regarded unconstitutionality as the only defensible reason for a veto. Jackson’s addition to the small-­c constitution was validated when he was reelected by the voters in 1832

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after he vetoed a bill to renew the charter of the Bank of the United States. His interpretation has governed the conduct of presidents ever since. Similarly, in the twentieth century, Theodore Roosevelt abandoned the norm of presidents eschewing direct public appeals as a device for rousing support for their legislative agenda and inaugurated the “rhetorical presidency,” in which calls for backing by the American people are both an accepted and an expected part of the job. Roosevelt in effect added an element to the small-­c constitution that was confirmed through its adoption by subsequent presidents and its acceptance by the public. Norms of the kind that Nelson assigns to the small-­c constitution animate political scientist Richard J. Ellis’s discussion of what it means for a president to be “presidential”—that is, to meet people’s expectations of how presidents should conduct themselves in office. Starting with Thomas Jefferson, Ellis notes, several of the “great” presidents have “had to fend off charges that they were behaving in ways that were unpresidential,” including Jackson, Abraham Lincoln, and TR. That said, not all who faced such charges were great, notably Andrew Johnson. The crossroads to which these norm-­challenging presidents brought the country in the form of new styles of conduct has sometimes led to enduring transformation in the office and sometimes led to backlash, thereby reinforcing existing patterns of behavior. Will Donald Trump’s braggadocious style of credit-­claiming and his playground-­style taunting of political opponents be transformative or will it trigger a backlash? Trump boasted in a 2017 tweet that his style “is not Presidential— it’s MODERN DAY PRESIDENTIAL.” Nothing that occurred afterward during his presidency indicated any change of mind. In determining whether the Trump model will endure, Ellis concludes, “much may depend on whether Trump’s abusive communications style is seen by other political elites as effective and thus worth emulating or counterproductive if not disqualifying.” For all Trump’s norm-­disrupting conduct in public, political scientists Jennifer L. Lawless and Sean M. Theriault show in their essay that not everything changed in Washington and the country after he took office. At the crossroads of Trump’s remarkable election in 2016 as the least conventionally credentialed candidate in history, many wondered whether his presidency would “mitigate, sustain, or exacerbate polarization.” Using measures of voting in Congress and elections, Lawless and Theriault conclude that “Trump didn’t trump party polarization in either the electorate or the Congress. But from both a behavioral and an institutional perspective, he didn’t make things worse either.” The polarization among voters and elites that has driven Republicans and Democrats farther apart since the early 1970s did not abate after Trump was elected, but neither did it accelerate. Their essay serves as a reminder that not every crossroads leads to a change in direction. Sometimes the journey continues along its previous course.

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What of presidential impeachment, the subject of the essay by political scientist Andrew Rudalevige? Once again, the Constitutional Convention stood at a crossroads as it decided whether impeachment and removal should be relatively easy (on broad grounds of “maladministration,” for example) or hard (only for “treason or bribery”) as well as whether it should be a judicial process lodged in the Supreme Court or a political process entrusted to the elected houses of Congress. The Framers ultimately decided to add “high crimes and misdemeanors” to treason and bribery as appropriate grounds for impeachment and removal while assigning impeachment to a simple majority of the House of Representatives and removal to a two-­thirds majority of the Senate. As Rudalevige shows, the Framers did not intend to equate high crimes and misdemeanors with violations of statutory law; instead, they meant impeachment and removal to be the remedy for serious abuses of the constitutional authority of the office, whether codified in statutes or not. But by the time of the first presidential impeachment of Andrew Johnson in 1868, that understanding had been lost. The House’s real reason for impeaching Johnson was his egregious conduct as president, but House members felt that they needed to focus their official charges on his alleged violation of the Tenure of Office Act and the Army Appropriation Act. Similarly, the impeachments of Richard Nixon in 1974 (aborted by his resignation) and Bill Clinton in 1998–99 cited specific statutes that each allegedly violated. In this regard, Trump’s impeachment in 2019–20 may mark a turning back at a constitutional crossroads. Neither of the impeachment articles brought against the president claimed that he violated a particular law. Instead, Trump was charged with “abuse of power” and “obstruction of Congress.” This approach represented a reclaiming of what the Framers had in mind in 1787 more than a continuation of congressional practice in the Johnson, Nixon, and Clinton cases. Even so, it is worth noting that not a single impeachment by the House has resulted in the removal of a president from office by the Senate. This may leave the process immobilized at a crossroads, with neither history nor the Constitution providing clear guidance about which direction to turn when severe controversies arise over presidential conduct. War is an unsurprising constitutional crossroads for the presidency, with wartime urgency often providing unusual latitude for presidential action. As political scientist Russell L. Riley notes in his essay, “At these critical crossroads in the nation’s past, Americans have chosen to depart from the usual path of checks-­and-­balances in favor of the more efficacious route of presidential rule.” Less remarked has been what Riley calls “a second crossroads”: the aftermath of war, when “the overwhelming impulse . . . has been to return as quickly as possible to the kinds of governing arrangements the nation abandoned to meet the threat.” After the Civil War, World War I, World War II, and the Cold War, Riley finds, a version of nonviolent “American regicide” occurred that forced

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the presidency to retreat along the path that led it to each crossroads. Famously, for example, the Supreme Court ruled in the 1997 case of Clinton v. Jones that a lawsuit against President Clinton could proceed on the grounds that he had plenty of free time to deal with it. This, Riley writes, was “quintessentially a post–Cold War decision, a ruling hard to imagine during the period of conflict with the Soviet Empire.” Crossroads in history, like crossroads on the map, present themselves to the presidential traveler, requiring that decisions must be made about which way to proceed. The ongoing rise of new forms of mass communication—the telegraph, motion pictures, radio, broadcast television, cable news, and most recently various modes of online and social media—has repeatedly forced presidents to adapt by changing course. Political scientists Barbara A. Perry and Stefanie Georgakis Abbott describe these adaptations, even offering “leadership lessons on how to communicate with the people” in an age when presidents seem omnipresent to the public. With an eye toward recent populist trends in Europe, however, Perry and Abbott warn that persuasive communications are not always benign. The “personal presidency” may all too easily devolve into the sort of demagoguery the Framers feared. In a similar vein, the growth of the military in size, potency, and complexity marks the crossroads the president now encounters as commander-­in-­chief. “Military operations have grown increasingly complex over time,” observes public policy scholar and Air Force officer Bradley R. DeWees, “from groups of soldiers marching in unison to networks of soldiers, sailors, airmen, and marines operating across land, sea, air, space, and cyberspace.” In what DeWees describes as the “permanent garrison state,” three fundamental connections lie at the crossroads of civil-­military relations: between presidents and generals, business and the military, and civilians and soldiers. “At the president-­general level,” he worries, “the civil-­military balance is shifting in favor of the military, which is not necessarily good for security.” That said, “despite its having all the firepower, there is no real possibility of a coup in the United States because its military so values deference to democratically elected civilian leaders.” Historically, presidents seldom felt any need to give much thought to the vice presidency. But as with the rise of new forms of media and a permanent military establishment, altered circumstances created crossroads concerning the office. Although, as legal scholar Joel K. Goldstein records, “institutional change typically, and understandably, lags behind the development of the conditions which give rise to the change. . . . The related perils of the Cold War and the atomic age gave greater importance to the presidency and focused attention on the identity and preparation of the presidential successor.” In time, this realization manifested itself in President Jimmy Carter’s creation, in collaboration with Vice President Walter  F. Mondale, of what Goldstein calls “the White House vice presidency,” centered in the executive branch and

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transformed from a previously marginal office into one of genuine influence and significance. In the volume’s concluding essay, political scientist Sidney M. Milkis takes account of recent controversies concerning how “Trump’s two predecessors— George  W. Bush and Barack Obama—both exercised administrative power aggressively, setting important precedents that have enabled Trump’s more provocative unilateral actions.” Unchecked assertions of presidential power arguably constitute the constitutional crossroads at which the office and the country now stand. For guidance in this situation, Milkis turns to previous crossroads moments that resulted in “presidential refoundings” by Jefferson, Jackson, Lincoln, and Franklin Roosevelt. At their most successful, these refoundings not only invoked “fundamental principles and constitutional norms” dating back to the Declaration of Independence and the Constitutional Convention but also adapted them to changing times in conjunction with a political party. The question Milkis leaves us with is whether the gradual migration of power from parties to the executive has made such refoundings impossible. FDR’s “legacy— the administrative state,” Milkis laments, may have made Roosevelt “the last refounding president.” The many reasons for concern about the American future notwithstanding, more than two-­and-­a-­quarter centuries of constitutional crossroads faced and navigated by nearly four dozen presidents offer a reasonable basis for optimism about the future. The system the Framers created has endured despite crises as grave as civil war and economic collapse. The explanation for this endurance, however, has nothing to do with complacency. It has everything to do with vigilance.

THE LIVING PRESIDENC Y Always at a Crossroads S A I K R I S H N A B A N G A LO R E P R A K A S H

Is the living, imperial presidency a bug or a feature of the modern Constitution? There is a perennial tendency to lament it as a bug, especially by those who regard an incumbent as a usurping, power-­hungry despot. And for a generation or so, every president has been so regarded by some portion of the electorate. In any event, whether lauded or condemned, our living presidency seems ever at a crossroads, and occupants of the Oval Office typically take the path toward greater executive authority. The presidency itself arose from the most consequential of crossroads, the Philadelphia Constitutional Convention. Although James Madison is often deemed the father of the Constitution, he was a perplexed uncle when it came to Article II. On the eve of the convention, Madison had apparently given little thought to the executive. In “Vices of the Political System of the United States,” he listed twelve “defects” of the Articles of Confederation.1 While noting the lack of sanctions for breaking national laws, he ignored the absence of a vigorous, independent national executive to enforce the laws. His April 1787 letter to George Washington, written a month before the Philadelphia Convention, sheds light on why: “I have scarcely ventured as yet to form my own opinion either of the manner in which [the national executive] ought to be constituted or of the authorities with which it ought to be cloathed.”2 This was a bit of an overstatement, for, as a reader of Baron de Montesquieu’s Spirit of the Laws, he would have known that an executive does what the label implies—it executes the law. In the eighteenth century, the word “executive” had a core meaning even if its margins were contested. For Madison to speak of an executive was to signal that he desired an entity tasked with implementing national laws. Yet despite his reputation for preparation, Madison was unsure about which additional “authorities” should be vested in the executive. Some of Madison’s convention allies were far surer about the ideal features of the executive. Led by Pennsylvanians Gouverneur Morris and James Wilson, a group of delegates successfully willed into existence an independent and powerful executive. In the end, not all delegates endorsed its final contours. 7

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Three—Edmund Randolph, George Mason, and Luther Martin—pointedly criticized the formidable executive that emerged from the convention’s proceedings. They had ample cause. Over the course of the convention, the executive crystallized into an American version of European monarchies, one whose resemblance to the British kingship could not be gainsaid. This republican, limited monarchy was hardly foreordained when the delegates first met in May 1787. Rather, the executive acquired power as the convention unfolded, a pattern of accretion that would become familiar to later generations. At almost every junction at the convention, the state delegations tilted toward an energetic executive. The delegates settled on a single executive and rejected a triumvirate, presumably because they agreed with those who warned of violent dissensions and the diffusion of responsibility. After tussling for months over the vexatious question of selection, they settled on special presidential electors with a House backstop when no candidate received an electoral majority. This selection process, coupled with a guaranteed salary, a lengthy tenure, and no term limit, yielded an independent executive unbeholden to Congress. In fact, the new executive—armed with a host of powers, some specifically enumerated and others part of the general grant of “executive power”—would serve as a counterweight to Congress. The executive would wield a check on legislation in the form of the limited veto, the power of which has grown as presidential confidence waxed over the centuries. Moreover, the president also would have power to enforce the law, the ability to pardon all federal offenses, an interstitial authority over foreign affairs, command of the military, and direction of the executive bureaucracy. With respect to making appointments and treaties, the president would need the Senate’s consent. Why did the powers of the executive accrete over the course of the convention? Credit (or blame) George Washington and the determined delegates who relentlessly pressed for a robust executive. Washington’s sterling character caused those fearful of executive power to let down their guards. When delegates considered a unitary executive, they thought of Washington and were cheered by the prospect that he would be the first president. Had he not proven that power could be entrusted to him by renouncing it at the end of the Revolution? Those favoring a robust executive rode this Washingtonian tailwind and stubbornly persisted in their view that under existing frameworks, including the state constitutions and the Articles of Confederation, Americans had gone too far in hobbling the executive. The reformers insisted that this mistake be avoided at all costs. Unlike the weak, plural executives that often had been the norm, the new Constitution prized executive vigor and unity. When Americans received the proposed Constitution, discerning minds peered behind the document’s trappings to see that the president would be far more powerful than contemporaneous state executives, whom James Madison had denigrated as “cyphers.”3 In the words of Edmund Randolph, in reading the

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Constitution, the people would behold a “little monarch,” imbued with more power than many of the crowned monarchies in Europe.4 Thomas Jefferson said the office was a “bad edition of a Polish King”—hardly words of flattery.5 His aide said the Constitution would create a “mixed monarchy,” for despite “the humble title of President,” the office “will have greater powers than several monarchs have.”6 Prominent Anti-­federalists, like Patrick Henry and George Mason, carped that the presidency “squints toward monarchy”7 and that the Constitution would establish an “elective monarchy.”8 Some supporters of a strong executive rejoiced. For instance, John Adams was delighted that the Constitution had created a “monarchical republic.”9 Even foreigners saw the resemblance, with the Dutch stadtholder saying that Americans had given themselves a “king, under the title of President.”10 The complaints generally flowed in one direction. We the People ratified the Constitution in the teeth of innumerable claims that the presidency would have too much authority and be too monarchical. In contrast, precious few complained that the office would be impotent or lethargic. The Constitution thus marked a sea change from 1776, when the signers of the Declaration indicted George III for kingly excess in authority. In the Constitution, the convention constructed something scarcely different from what the nation had previously forsaken. America was to have, in many respects, a national government, with a mighty executive at its head. The monarchical cast of the original presidency is utterly lost on modern readers of the Constitution. For many, the claim might seem downright bizarre. Article II never mentions a crown or throne, and specifically bars the United States from granting titles of nobility. Our executive is elective, while monarchies are typically hereditary. America’s executive is clearly limited, whereas monarchy brings to mind despotism—the arbitrary rule of one. Finally, America is a grand republic, one with a guarantee of a “republican form of government.” Whatever else it is—it cannot be a monarchy. But the Founders were more sophisticated when it came to monarchy. That generation knew that monarchs could be elected because many storied monarchies were, including the pope and the Holy Roman emperor. They were also well aware that some governments—so-­called mixed monarchies—had elements of both monarchy and republic. They could look behind the forms to see the substance. For instance, Baron de Montesquieu perceived that for all its regal frills, England was a “republic disguised under the form of a monarchy,” by which he meant a mixed monarchy.11 Indeed, even as we grudgingly recognize the monarchical nature of the presidency, we must always keep in mind the “mixed” or “limited” nature of that monarchy. As powerful as the presidency was constructed to be, it was clearly not meant to be all-­powerful. There were plenty of constitutional restraints, some express and others implied.

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First, presidents had to execute the laws of Congress, for they could not suspend or dispense with the very statutes they were to faithfully execute. Almost a century before the Constitution’s creation, the English Bill of Rights firmly established that the executive could neither suspend nor dispense laws. Such powers came perilously close to a general authority to legislate.12 More generally, the English did not suppose that the Crown could (or should) make laws on its own. Instead, the Crown’s checks on lawmaking came from its absolute veto, the power to end a session of Parliament (and thereby terminate all pending legislative activity), and the routine use of influence and inducements to warp the will of legislators. The duty to execute laws made primarily by others and the lack of an independent power to make laws went hand-­in-­hand and were bedrock features of all Anglo-­American executives. Second and relatedly, presidents had to honor congressional regulation of the army and navy. Military command did not imply authority to start wars or to unilaterally govern and regulate the military. The role of “commander-­in-­ chief,” an entirely familiar and ordinary military position, merely encompassed command of a particular unit and not autonomy to launch attacks on foreign nations. In fact, both England and America had hundreds of commanders-­in-­ chief, each charged with direction of a particular component of the military and each barred from unilaterally plunging their nations into war. The Constitution merely granted the president the same sort of military command that generals had, except that the president was the “general of generals”—the commander of all military units. That is why Alexander Hamilton said that the president would merely be the “first General and Admiral.”13 With its express authority to initiate wars (“declare war”) and to govern and regulate the armed forces, Congress could control the military and its commander-­in-­chief.14 Third, presidents required the Senate’s consent to make treaties and long-­ term appointments, meaning that they could not unilaterally make significant international contracts or permanently fill vacant offices. These were restraints on traditional executive powers and were a nod to those who supposed that a council ought to check the executive on certain vital matters. On these questions, the executive was plural rather than unitary, for the need to secure the Senate’s consent made the chamber partly “executive,” a point not lost on early readers of the Constitution or on the Senate itself. Fourth, since chief executives lacked the constitutional authority to generate offices or endow them, they depended upon Congress to create and fund executive offices and departments, including the army and navy. The first Congress created the three early departments—State, War, and Treasury—and supplied the staffing and pay for each. While the departmental names would sometimes change, and the number of departments and agencies has ballooned, Congress has maintained its monopoly over departmental structure

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and the purse. The power to create and fund the executive branch’s substructure has consistently given Congress leverage over the bureaucracy. Although presidents may generally direct and remove executive officers, Congress generates the laws committed to the care of such officers and may curb their powers and budgets, a useful means of signaling to officers that they should be mindful of congressional preferences. Fifth, presidents had to honor judicial judgments. At one time, the judicial power was part of the executive, because both executed the law, albeit in different ways. But the English barred their kings from sitting in judgment and protected their most important judges from executive ouster. In this scheme, no one doubted that judges decided who prevailed in cases brought before them. This was true even when the government was a party as plaintiff, prosecutor, or defendant. This understanding of the executive’s relationship to the judiciary carried over to America and its Constitution. Unlike the English kings of old, American presidents could not decide cases. Cases were to be decided by judges, whose judgments the executive was to faithfully execute. Finally, the Constitution enjoined the president to “preserve, protect, and defend the Constitution.”15 This unique oath, coupled with Article V’s amendment process, refutes any notion that presidents may amend the Constitution by other means. Unlike the English Constitution, which changes by practice and by legislative statutes, the American Constitution was meant to be impervious to both. Certainly, the president was not meant to be able to informally amend the Constitution, via practice or otherwise, much less overthrow its writ. In the early years of the Constitution, a few contentious disputes arose on the peripheries of presidential power. Initially, Madison favored what some might regard as broad readings. In 1789, Representative Madison read the grant of “executive power” as encompassing an entire class of related powers. Within this category, he argued, was a power to remove executive officers.16 Madison’s interpretation prevailed. By 1793, writing as “Helvidius,” Madison reiterated his position about executive power; yet he simultaneously denied that it encompassed any authority over foreign affairs. Fears of the executive were growing, and they likely influenced Madison’s perspective. The specter of an increasingly regal president loomed, especially during Washington’s second term. Although detractors were often reluctant to attack Washington directly, some carped that the presidency was slowly being monarchized. As Jefferson observed, the early fights over presidential power were in part about what type of government America had and what type it would have in the future: “Where a constitution, like ours, wears a mixed aspect of monarchy and republicanism, it’s [sic] citizens will naturally divide into two classes of sentiment, according as their tone of body or mind, their habits, connections, and callings induce them to wish to strengthen either the monarchical or the

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republican features of the constitution. Some will consider it as an elective monarchy . . . and therefore endeavor to lead towards that all the forms and principles of it’s [sic] administration. Others will [view it] as an energetic republic.”17

The Modern Executive: Mutating and Growing More Powerful Since Washington’s presidency, forty-­three more presidents have come and gone. Yet the underlying debate and disquiet about the powers of the presidency continue unabated. Compared to the late eighteenth-­century presidency, many may suppose that we have gone a quite a long way toward reinforcing the Constitution’s monarchical features. As a general matter, our modern system looks more and more like the English system of an unwritten, evolving, common law Constitution—what moderns call a living Constitution. The presidency has not been immune to these changes. In fact, it has been one of the living Constitution’s principal agents of informal amendment. The modern executive, at once more republican and more monarchical than the original presidency, has become a mutable, living presidency. We have nothing like an absolute monarchy. And even though we twice have had sons follow their fathers into the office, we do not have a hereditary monarchy. Yet no one doubts that presidential powers have accreted over time. Where once the office was weak, it is now strong. Where it was strong, it is stronger still. Some of these practical, informal amendments to Article II are somewhat familiar. Others are so much a part of the fabric of the modern presidency that we can scarcely detect that features of the original presidency have been amended. We have forgotten so much that we cannot see all the additions to the office. Like our burgeoning military, which has ballooned from about a thousand soldiers to more than a million men and women in arms, the president’s military authority has swollen with the times. Via the alchemy of practice—in this case the repeated violation of constitutional norms—the president has acquired additional authority over the armed forces, something of a camouflage “gloss” to his executive power. The power of the commander-­in-­chief has advanced on two related fronts. One concerns the initiation of war. The most infamous violation of existing norms was Harry Truman’s “police action” in Korea, when the president asserted that no congressional authorization was necessary because, after all, there was no war on the Korean peninsula.18 That Truman would commandeer Congress’s constitutional authority to declare war within a decade of Congress formally declaring war against six nations in World War II, each of which had declared war first and were thus aggressors, reflects either mendacity or massive ignorance.

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From this unprecedented presidential war sprung forth a monumental, unwritten amendment to the Constitution. Since Korea, presidents have claimed constitutional authority to start wars, large and small, in Grenada, Kosovo, Bosnia, Libya, and a host of other nations. Even when modern presidents have gone to Congress, they often went merely to consult, insisting that legislative approval was superfluous. Welcome, yes, but wholly unnecessary. As things stand now, executive branch lawyers quibble about whether presidents have acquired the power to begin messy ground wars. Some lawyers (joined by some in Congress) assert that presidents can start any sort of war they wish. Others reject this argument. But if practice is the yardstick of presidential power, as many executive branch lawyers insist, the Korean War helped establish that presidents can wage war without restriction. The last seventy years of practice seem to have amended the Constitution and vested in the presidency a parallel power to declare war. In other words, it seems, as a matter of our constitutional practice, that either Congress or our presidents can take the nation to war. The second military innovation arises from executive insistence that Congress cannot micromanage the armed forces. This claim would come as a shock to the Founders, who granted Congress broad power to make rules governing and regulating the army and navy. Moreover, early Congresses actually exercised this power to determine by law where and how an enemy might be attacked. For instance, congressional regulation of combat operations was pervasive during the Quasi-­War with France. During the presidency of John Adams, Congress specified which French vessels could be attacked and where.19 Neither Adams, nor George Washington, nor anyone else uttered any constitutional misgivings. Today, presidents routinely denounce far less intrusive restrictions as unconstitutional and refuse to honor them. We have forgotten that the original Constitution granted Congress almost plenary authority over the military. With respect to the broader category of foreign relations, changes have been less noticeable, in part because Americans pay less attention to the external realm and also because the original allocation of foreign affairs power was always a little more obscure. The biggest transformation is a modern president’s power to bypass the Treaty Clause, which requires the president to secure a two-­thirds vote of the Senate before ratifying a treaty.20 Under the original Constitution, treaties encompassed significant, long-­term contracts in which the United States pledged its honor to another nation.21 This was a functional definition, one that did not turn on terminology. For instance, a president could not evade the Treaty Clause by calling an international contract an “agreement” or an “accord.” The nomenclature did not matter. Whatever the label, major, durable, international contracts were treaties. In the 1930s, however, Franklin D. Roosevelt helped marginalize the Treaty Clause. He made treaties after securing congressional consent in ordinary

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legislation.22 Initially, the textual hook was Congress’s power to regulate commerce, a power that no one at the Founding supposed encompassed authority to conclude commercial treaties. Nor did anyone suppose that presidents might cite the Commerce Clause as a means of evading the Treaty Clause’s requirements.23 Defenders of the innovation claimed that because Congress had the power to regulate foreign commerce, Congress could authorize the president to make international agreements and bypass the Treaty Clause’s requirement of supermajoritarian Senate consent.24 Ever since, presidents have used this scheme—the so-­called “congressional-­ executive” agreement—to bypass the Senate’s treaty check. Whenever the president invokes the congressional-­executive agreement option, a majority of senators often favor the international agreement and, crucially, also understand that a two-­thirds majority cannot be mustered. In that context, a treaty backed by a majority of both chambers is preferable to no treaty at all. Put another way, Senate majorities essentially ignore the constitutional rights of the Senate minority: while that minority could block the passage of a treaty, it cannot block a congressional-­executive agreement. Although passing legislation is hardly a walk in the park, it is generally easier than obtaining a two-­thirds majority in the Senate. Moreover, the president essentially has an option to choose whatever route he considers more likely to deliver results. He can pursue the Senate’s consent to a treaty by securing a two-­thirds majority in that chamber. Alternatively, he can make a treaty by a congressional-­executive agreement with the concurrence of a simple majority of both chambers. Indeed, nothing prevents the president from selecting one path and, if that proves unsuccessful, taking up the other. Some senators have contended that certain international agreements (typically concerning arms control) must be made under the Treaty Clause.25 But why the Treaty Clause applies with particular force to such agreements is never made clear. It may well be that these senators are attempting to revive their institution’s special role in foreign affairs, a position eroded by the diminishment of the Treaty Clause. As to the routine conduct of foreign affairs, modern presidents have become increasingly assertive, claiming that Congress must never impinge upon executive discretion. According to executive branch lawyers, Congress cannot, through substantive legislation or appropriations, hogtie presidents by disestablishing State Department delegations or cutting funding. At the extreme, this way of thinking suggests that the president is entitled to a foreign affairs bureaucracy and funding of his own choosing, without regard to congressional priorities. Future presidents can be expected to continue to push the envelope by objecting to congressional micromanagement in foreign affairs. When it comes to the presidency’s principal function—execution of the laws—we are in the midst of a fundamental overhaul. Modern presidents have

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become less and less faithful executives. Instead, they are increasingly prone to regard themselves as lawmakers as they go about supplementing, misconstruing, and flouting laws. Congress’s irresponsible grants of broad lawmaking power to executive agencies are a central example. All too often, Congress endows an agency with the broadest of mandates—to legislate in the public good—over some subject, be it trade or the environment. Congress delegates freely because it values flexibility, lacks expertise, and seeks to escape responsibility for regulatory burdens. Whatever the rationalizations for particular delegations, the resulting executive rules are nothing less than federal laws made by means other than bicameralism and presentment. Each of us must obey them on pain of fines or imprisonment. Because executive agencies labor under the president’s direction, in practice and in law, their rulemaking powers are essentially his. Even when no formal grant of rulemaking authority exists, executive agencies receive deference for their reasonable interpretations of the statutes committed to their care. This “Chevron deference” stems from a famous 1984 Supreme Court case.26 Such deference to agencies sometimes inspires tendentious interpretations that help advance the policies of the incumbent president. In particular, rather than seeking the best interpretation of an ambiguous text— something one would expect of a faithful executive—Chevron-­style deference encourages agencies to discover (or manufacture) ambiguity, vagueness, and uncertainty. After all, the greater the ambiguity, vagueness, and uncertainty in a statute, the greater the array of reasonable readings the statute will bear. The greater that array of reasonable readings, greater is the chance the executive can successfully latch on to one that advances its particular policies. The most interesting feature of unfaithful execution—baldly spurious interpretation of the laws—is more exceptional and less frequent. It tends to arise when the president feels deeply invested in a matter. During the Great Recession, President George W. Bush used a statute appropriating funds for the bailout of “financial institutions” to rescue General Motors and Chrysler.27 No plausible reading of the statute permitted treating automobile manufacturers as if they were financial institutions. Moreover, although the House had approved a separate auto bailout, the Senate did not.28 Despite acknowledging that Congress had not passed an auto bailout bill, the president announced that the “executive branch [would] step in” and supply the funds anyway.29 More recently, President Donald  J. Trump signaled a willingness to dismantle the Affordable Care Act (ACA) administratively through executive order, something that seems far removed from faithful execution.30 However much discretion the act conveys to the executive, it surely does not grant the president the unilateral right to emasculate the act. Yet the president boasted that rather than repealing the ACA, “I think we may be better off the way we’re doing it. It’s piece by piece by piece. Obamacare is just being wiped out.”31 If a

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judge boasted of wiping out a constitutional statute in a judicial decision, many would be scandalized. Executive repeal is less disreputable precisely because of congressional delegations and a long history of creative and ingenious interpretations enhancing executive discretion. But faithless execution may sometimes arise from too deep a commitment to a particular law. For instance, the ACA authorized federal payments to insurers but did not provide an appropriation to actually pay them.32 The appropriation was to come later. This scheme was in keeping with the norm that granting legal authority to a governmental entity does not automatically supply the funds necessary to exercise that authority. That is why Congress often passes annual authorization bills that are separate from the annual appropriations bills. Recognizing that the ACA supplied no appropriation, the Obama administration publicly approached Congress in its 2014 budget request for a new appropriation to make the payments to the insurance companies. But the Republican Congress balked. Upon realizing that there would be no appropriation, the administration repudiated its earlier position and implausibly asserted that the ACA itself appropriated the necessary funds and that no further appropriation was necessary.33 The administration’s intense desire to prop up the ACA led to a direct violation of the constitutional rule that no funds can be taken out of the Treasury except by law. More examples abound, but the point is made. The executive will twist and turn to further its principal agenda, stooping to misread statutes and making a hash of them. Fortunately, because presidents do not typically have hundreds of prized goals, the temptation to play statutory games is not ever-­present. This means that with respect to many matters, the executive remains a faithful executor of congressional commands. In particular, when the executive has no policy disagreements with the law and faces no external pressure to evade its strictures, relatively faithful execution will follow as a matter of course. This saves legal and political resources for the few (mis)interpretational fights that actually matter to the executive.

A Constitutional Amender The final significant evolution in presidential power has been the executive’s willingness to act as an agent of informal constitutional change. As noted earlier, the president’s express duty to “preserve” the Constitution would seem to bar presidential attempts to alter it. More precisely, the presidential oath, fairly read, seems to reject the idea that presidents can amend the Constitution by repeatedly contravening it. Nevertheless, the executive has embraced this tactic in theory and in practice. The acquisition of a parallel war power, the evasion of limits on the president’s direction of foreign affairs, and the assumption of lawmaking authority

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all bespeak a willingness to alter the Constitution through practice. Presidents no longer preserve the Constitution intact. Rather, they preserve what they please and despoil the rest. The executive branch admits as much. In executive branch legal opinions authored by the Justice Department’s Office of Legal Counsel, executive lawyers in several administrations have argued that repeated practice puts a “gloss on executive power.”34 This argument suggests that, through historical practice, the president can acquire constitutional powers not previously his. Indeed, these opinions make frequent reference to historical practices as being important, if not dispositive. The executive branch’s embrace of historical practice as a means of amending the Constitution has interesting implications. First, it implies that the president does nothing wrong in trying to change the Constitution, whatever his oath might imply. After all, it is hard to fault presidents for trying to change the Constitution when the Constitution is widely understood to permit constitutional change via the accretion of practices. Second, and more importantly, no power is off limits or forbidden. With diligent violations of the existing legal order, the presidency may acquire any power, whether granted to the federal government or not. In this sense, Article II comes to resemble a floor to presidential power, but certainly not a constitutional ceiling. The presidency is whatever a series of presidents make of it. Presidents, by and large, are not Holmesian bad men.35 They do not become more irresponsible or willful upon taking office. Nor are they unusually ambitious and power hungry. They want to get things done and be remembered as being in the same league as George Washington and Abraham Lincoln. Presidents are best seen as playing a complicated game. Most of the time, they play the game under the existing rules and with the cards they are dealt. The problem is that presidents have many more cards than the other players and that the rules tilt the game in favor of presidents. Exploiting their con­siderable advantages, presidents acquire additional powers and essentially reconfigure and expand their office.

How Presidents Successfully Amend and Expand Their Office What factors help explain how presidents are able to rewrite Article  II and thereby alter the constitutional contours of their office? Some are perhaps the unintended features of the original Constitution itself, while others reflect changes in practice and conceptions that the Founders never contemplated. First, consider the structural features of the three branches. Unity in the executive branch conduces to “decision, activity, secrecy, and dispatch,” as Alexander Hamilton famously wrote.36 But unity also proves incredibly advantageous in

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any contest or dispute among the branches. It is far easier for the executive to pursue ever-­greater authority because presidents can ignore, sideline, or fire dissenters within their branch. That is to say, the president has an easier time generating internal unity than Congress or the courts, which are fractured by their sheer multiplicity. Congress literally has a cast of hundreds divided across two chambers. This horde faces a collective-­action disadvantage in attempts to restrain the single executive. Furthermore, almost all such attempts must be presented to the president. In the past, presidents have wielded the veto to restrain those who seek to restrain them. The only check on the presidency that cannot be vetoed is impeachment. But impeachments require a two-­thirds majority in the Senate to convict, a threshold that has made convictions impossible in practice. Similarly, the courts are also divided, with the judicial power dispersed among hundreds of federal judges. Even the Supreme Court’s considerable authority is split among nine justices, meaning that five must unite to take action. The singular advantages and perils of unity were understood from the beginning. Edmund Randolph, the governor of Virginia, told the Constitutional Convention that a single executive was the “foetus of a monarchy,” because the executive would eventually strive, strain, and push for more power.37 For this reason, Randolph unsuccessfully sought a triumvirate.38 The convention rejected the idea, presumably concluding that a triumvirate would struggle and perhaps end in a despotism of one, just as the clashes between Pompey, Marcus Crassus, and Julius Caesar eventually lead to the latter’s rule. Randolph lost on the question, but he was absolutely right that the choice of unity was pregnant with consequences. Although none of what has come to pass was inevitable, the accumulation of executive power certainly became more probable under a unitary executive. A sole executive can be—and has been—more aggressive, nimble, secretive, and resolute in the advancement of the presidency’s interests. Second, consider the text of Article  II and the problem of constitutional drift. Many unfamiliar with English and early American understandings may read Article II and perhaps be struck by its many possibilities. What is a commander-­in-­chief? Perhaps the title gives the president an unrestrained command of the armed forces. For that matter, what is the “executive power”? Political scientist Charles Thach long ago described the Vesting Clause of Article  II as a constitutional “joker,” available to be cited as a legal basis for any executive action not otherwise traceable to a more specific clause.39 This prospect has not waned over time. Executive privilege, emergency authority, suspension of the privilege of the writ of habeas corpus, the taking of private property in time of war—all of these pretensions and more might be accommodated by the Vesting Clause.

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Article II could have both authorized and expressly constrained. Imagine an Article II, section 5, that specifically restricted presidential power, somewhat mirroring Article I, section 9, which limits Congress. For instance: “The executive shall never take funds out of the Treasury except by virtue of law passed by Congress”; “The executive shall never wage war except by virtue of law”; “The executive shall never make treaties or similar agreements except with the consent of the Senate.” History supplies famous examples of legislatures enacting similar limitations on executives. The English Bill of Rights contains many such enactments; most prominent are its bars on executive suspensions and dispensations without parliamentary approval.40 State constitutions likewise limited executive authority by imposing specific prohibitions.41 Article I, section 9 and the Bill of Rights apply to the executive and therefore limit it, but these restrictions are generally not meant to deal with the peculiar phenomenon of executive overreach. Third, technical rules limit judicial review of executive action. To begin with, the courts are profoundly passive because they must wait for third parties to bring a proper case. If no one files a suit, the judges must stay mum. Moreover, the courts have declared that some legal questions brought by litigants are “non-­justiciable,” meaning that they will not answer them. For example, the courts consider questions about the constitutional war powers of the presidency outside their purview. Relatedly, judicial review of the executive’s excesses has always been asymmetrical. Actions harming an individual are reviewable, but actions benefitting an individual often are not, even when they are illegal. Why? The Constitution, through the case or controversy requirement of Article  III, has long been thought to limit the circumstances under which judges may exercise their judicial power. Because of these constraints and others, the courts cannot consider the merits of every assertion that the president (or his administration) has violated the Constitution, laws, or treaties of the United States. Changes in conceptions of the executive and transformations of society also help to account for the ascent of the presidency, especially the advent of the popular mandate, the effect of political parties, the willingness of Congress to fund a vast bureaucracy, and the ascent of living constitutionalism. These factors cannot be laid at the feet of the Founders (unless we wish to censure them for their lack of foresight), but they create the context within which the executive has grown more powerful over the centuries. The presidency’s popular mandate arose from changes in the election process in the decades following ratification. The Constitution’s system of presidential electors was established, in part, to ensure that men of wisdom and experience, using their independent judgment, would select presidents from among the most suitable candidates. How these electors would be chosen

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was left to each state legislature. Initially, some states used popular elections to select their electors, while other state legislatures appointed the electors themselves.42 This slowly morphed into a nationwide system of popular elections for presidential electors. For our purposes, what is most important is that the discretion the Founders envisioned vanished quickly, as electors became tethered to nascent political parties. Indeed, shortly after the Constitution’s framing, electors were expected to vote for their party’s nominee and not to exercise their own judgment.43 This made the election of the president seem the choice of the people, especially when the parties’ candidates were widely known before voters cast their ballots for electors. Andrew Jackson was the first president to claim that he, more than Congress, represented the people of the United States. Recognizing that this claim would add to the luster and power of the presidency, Whigs denounced it. The people did not vote for a president, but for electors, Daniel Webster said.44 Besides, if the president was representative of the entire people of the United States, he would be the only such person in government and would soon become its master.45 As presidents started to develop policy agendas, it soon became common to say that their election came with a popular mandate to implement those agendas. Essentially, this meant that the “people” supposedly had endorsed a policy agenda and wanted the rest of the government to implement it or get out of the way. With the people at his back, the president can exert pressure on all rival institutions, especially Congress. The same wind or gale force that blows in a new president may also be used to oust those who refuse to join his policy reformation. Not every member of Congress will bend to the president. But the president, especially during his honeymoon, has a better chance of seeing his agenda enacted because the people have spoken and, in doing so, endorsed both the person and his policy platform. Political parties not only helped transform presidential contests into meticulously planned campaigns, but they have also weakened cross-­branch restraints. James Madison said that “ambition must be made to counteract ambition,” meaning that the branches must be constructed in such a way that each feels bound to advance its own interests.46 But he failed to predict the rise of political parties and the dampening effects they would have on interbranch competition. Political parties create ties that bind across the branches. Members of Congress are typically loath to closely monitor or check, much less attack, a president of their own party. Moreover, partisan ties sometimes mean that gratifying the president’s ambition may simultaneously promote the ambitions of members of a different branch. The policy and personal aspirations of presidents and members of Congress from the same party are often best served by cooperating to promote their joint agenda as reflected in a party platform. Rather than being

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rivals, the president and fellow partisans in Congress often act as part of the same team. Although party ties may temper the willingness of presidents to criticize their co-­partisans in Congress, in practice legislators usually feel far more constrained in faulting presidents. The president is perceived as a party’s principal leader. As such, party men and women in Congress will have a harder time censuring him, for they risk being viewed as malcontents or quislings. In contrast, presidents can reprimand party leaders without the same fear because, at least in part, they have come to embody the party and cannot be attacked for disloyalty to themselves. Congress also helps fuel presidential ambition by funding the executive institutions that aid the president to advance his policy agenda and simultaneously expand the presidency. For example, Congress supplies a host of aides that assist the president in exercising his powers. The Executive Office of the President is the central nervous system of the modern presidency, with offices like the Office of Management and Budget, the Domestic Policy Council, and the National Security Council. The vast presidential staff of almost two thousand gives presidents the practical ability to monitor the departments. This cadre of elite personnel, composed of political and civil service appointees, both advances the president’s agenda and works to delay, hinder, and obstruct bureaucratic initiatives contrary to his agenda. It is hard to overstate the significance of this dedicated staff. A single person, even with the backing of the people and his party, cannot possibly supervise even the upper echelon within the executive departments, not to speak of the two-­million-­member federal bureaucracy. Yet with a competent and loyal White House staff, presidents can do much of consequence because these aides act as a force multiplier of executive power. Officials during the Reagan administration used to say that “personnel is policy,” meaning that the right personnel would ensure the right policy. That is especially true of those closest to the president, who can then monitor those in the departments. There is little doubt that the modern presidency would be a shadow of its familiar self were it not for the congressional funding of executive branch personnel. Congress also funds executive attorneys who see it as their mission to defend the presidency—both the institution and the office’s particular occupants. Within and without the Executive Office of the President is a small cohort of expert attorneys that, year in and year out, dedicate themselves to, among other things, preserving and expanding presidential power. The most famous of these offices are the Office of Legal Counsel and the White House Counsel’s Office, but other legal advisory units serve similar functions. These lawyers provide counsel, both oral and written, on a whole host of issues, including the president’s constitutional prerogatives. On questions of

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presidential power, they perhaps think of themselves not as expanding executive power, but instead as merely illuminating its reach and confines. Yet because these lawyers labor in the executive branch, it is hardly surprising that their opinions often endorse expansive readings of presidential power. Every lawyer tends to see a matter from the client’s perspective. Over time, new opinions often advance the notions found in previous opinions, resulting in presidential “power creep.” Even when law seems to stand in the way, these attorneys try to find a legal workaround that allows presidents to at least partially advance their agendas. Without the assistance of these lawyers, modern presidents could not so easily expand executive power. The final element of the rise of presidential power is the ascent of the theory of living constitutionalism, which posits that the meaning of the Constitution ought to change over time. Absent such change, we would be bound to benighted understandings from centuries ago, a prospect that would make the Constitution brittle and might hasten its collapse. The idea perhaps has its greatest influence with respect to individual rights, where many believe that faithfully following outdated conceptions would mean abandoning many rights that Americans have come to cherish. For many, living constitutionalism is attractive precisely because it offers a means of circumventing Article V’s arduous amendment process. Once one embraces the idea of living constitutionalism, however, the door opens to living presidentialism. Because changes in the living constitution arise through changes in conceptions and practices, presidents are well positioned to effect those changes. By speaking to the public, presidents can start a new dialogue about the need for constitutional change or join an existing conversation and spur it forward. More importantly, presidents have the ability to adopt practices that advance new constitutional conceptions, with respect to both individual rights and governmental structure. In the area of presidential power, the presidents are obviously best equipped to create new conceptions and practices that advance the presidency’s institutional interests and the particular interests of the incumbent. In war powers, presidents have seized authority by unilaterally using force without congressional approval. In foreign affairs, presidents have acted repeatedly to create “facts on the ground” and have then cited those practices as a basis for a change in constitutional conceptions. Finally, with respect to execution of the laws, executives often have adopted dubious readings of statutes only to claim after the fact that a new understanding of a statute has emerged from these practices. These dubious readings can take an expansive form or a narrow one, either finding authority where there is none or minimizing or trivializing some statutory restriction. Either way, the laws that the president must faithfully execute can become protean in the hands of the executive.

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Yesterday’s presidency is different than today’s, and the only thing that can be confidently predicted is that the presidency tomorrow will be different as well. Saying that an act is unconstitutional or illegal today in no way implies that it will be in the future. Change is the only constant. To return to a question asked at the outset—whether the living presidency is a bug or feature—it is a product of our living Constitution either way. If Congress should not be tied to a “horse and buggy” conception of the Commerce Clause, as Franklin D. Roosevelt insisted, why should presidents be tethered to a “quill and cannon” conception of presidential powers? Likewise, if undemocratic courts can update the Constitution by reference to perceived changes in social mores—say with respect to abortion or the death penalty—presidents should feel little compunction about modernizing Article  II to better reflect America’s superpower status and their own far greater standing in our republican experiment. If the president best represents the people, no one can better update our laws and Constitution, particularly Article II, on behalf of We the Modern People. In sum, if living constitutionalism is a welcome, even indispensable feature of our current age, the living presidency stands as a signal feature of that mutable system. Nonetheless, for those who suppose that the living presidency is a bug, what can be done to limit or eliminate this bug? Here are five fixes, ones designed to help us take the correct route as we stand at yet another crossroads. I do not claim that their adoption would solve every problem with the presidency. Each involves Congress and, as such, would require a branch that is currently at a disadvantage to struggle to overcome it. First, members of both houses of Congress should be more willing to express their views on matters of constitutional import. In the past, each chamber has censured presidents, most prominently Andrew Jackson and James Polk. Such resolutions allow the chambers to express their views without actually trying to impeach and remove. By lowering the stakes, it makes the weapon more usable. Congress could lower the stakes further by offering judgments about presidential power without reference to any particular president. For instance, at the outset of a Congress, the chambers could pass resolutions that express their views about executive privilege, executive wars, and executive practice without referring to any particular dispute. This depersonalizes the resolutions and makes them less partisan. Even better, Congress could pass a series of resolutions several months before a presidential election, when no one knows who will serve as the next president. Second, Congress should pass a war powers act that cuts military spending upon the initiation of conflict. For instance, Congress might provide that should the president start a war, defense spending is automatically cut by three-­ quarters from the existing appropriation. Such an automatic rule would be

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constitutional, because everyone admits that Congress controls “the fisc.” The rule would have the effect of forcing presidents to secure congressional approval before (or immediately after) each significant initiation of force, because without such approval, the funds (and therefore the mission) would peter out. Third, Congress should adopt a strategy of grow and shrink. In the name of economy, Congress has kept its staff small. But it cannot keep up with the massive presidential bureaucracy if it adopts a policy of severe economy. Congress should have a sizable bureaucracy of its own that will help it monitor the executive. In conjunction with this approach, Congress should carefully monitor the president’s lawyers and aides and consider paring their numbers back. Fourth, Congress should reduce its delegations of power. In particular, Congress should curb its reliance upon broad delegations of legislative power to its executive rival. It can do this by authorizing executive agencies to draft regulations, packaging several of them together for a floor vote, privileging the package by preventing amendments, and then legislatively adopting them as law. To preserve flexibility, these regulations can be given a shelf life of no more than four years. This would force reconsideration of regulations and ensure some measure of responsiveness to changing electoral politics. Fifth, Congress should rationalize the Senate’s advice and consent role. In particular, it should reexamine the offices that currently require advice and consent and do away with the obligation for those inferior offices where such consent seems a waste of time. For instance, the Senate need not be involved in advice and consent for many military positions, or for that matter, many civilian undersecretaries. Congress can then redirect attention to those positions that currently lack a Senate check. The White House chief of staff, the White House counsel, the national security advisor—these and dozens of other important offices currently lack Senate consent. Yet these offices are often more important than several cabinet posts and are certainly more significant than the many deputies and undersecretaries that must receive the Senate’s consent. The Senate’s check matters, because senators often extract promises from candidates, and these oaths have the effect of constraining the president. None of these changes will satisfy all the hopes of those who believe that the living presidency is a bug. Though Congress will never cease to let us down, we can certainly expect more from it than we can from presidents who were reform-­minded as candidates. A funny thing often happens once a reformer enters the Oval Office. His zeal dissipates as he realizes that his promises to curb the office no longer check someone else’s power, but rather his own. In contrast, most members of Congress hope to stay in Congress for a long time and may realize that their authority generally waxes to the extent that the presidency wanes. Although ambition does not always curb ambition, it is far more likely to do so than a system in which the principal constraint on the presidency is its own institutional humility. In our age, that has been in short supply.

The Living Presidency  25

Notes The author thanks Anne Egerstrom for research assistance, Christian Talley for edits and comments, and an anonymous reader for suggestions. This essay was based substantially on a work originally commissioned by the National Constitution Center for the Interactive Constitution, https://​constitutioncenter​.org​/interactive​-­­constitution. The original essay was made possible through the support of a grant from the John Templeton Foundation. The opinions expressed in this essay are those of the author and do not necessarily reflect the views of the John Templeton Foundation. 1. James Madison, “Vices of the Political System of the United States, May 7, 1787,” in The Papers of James Madison, vol. 9, 9 April 1786–24 May 1787, with supplement 1781–1784, ed. Robert A. Rutland and William M. E. Rachal (Chicago: University of Chicago Press, 1975), 345–58. 2. “From James Madison to George Washington, 16 April 1787,” in ibid., 385. 3. The Records of the Federal Convention of 1787, vol. 1, ed. Max Farrand (New Haven, Conn.: Yale University Press, 1966), 35. 4. “Extract from the Pennsylvania Journal, Aug. 22, 1787,” in ibid., 278. 5. “Letter from Thomas Jefferson to John Adams, Nov. 13, 1787,” in The Papers of Thomas Jefferson, vol. 12, 7 August 1787 to 31 March 1788, ed. Julian P. Boyd (Princeton, N.J.: Princeton University Press, 1955), 349, 351; and “Letter from Thomas Jefferson to Edward Carrington, May 27, 1788,” in ibid., vol. 13, March to 7 October 1788, 208 (observing that because the president could be reelected, the drawbacks of elective monarchy were inevitable, and if term limits could not be imposed, better to adopt a hereditary monarchy). 6. Louise B. Dunbar, A Study in “Monarchical” Tendencies in the United States from 1776 to 1801 (Urbana: University of Illinois Press, 1922), 100 (quoting Letter from William Short to Cutter, November 15, 1787). Short was Thomas Jefferson’s private secretary while the latter served as American ambassador to France. 7. Debates in the Several State Conventions on the Adoption of the Federal Constitution, 2d ed., vol. 3, ed. Jonathan Elliot (New York, 1836), 58. 8. Ibid., 485. 9. “Three Letters to Roger Sherman, On the Constitution of the United States, 17 July, 1789,” in The Works of John Adams, vol. 6, ed. Charles Francis Adams (Boston: Charles C. Little and James Brown, 1851), 430. 10. “Letter from John Adams to William Tudor, June 28, 1789,” in Documentary History of the First Federal Congress, vol. 16, Correspondence: First Session, June–August 1789, ed. Charlene Bangs Bickford, Kenneth R. Bowling, Helen E. Veit, and William Charles di Giacomantonio (Baltimore, Md.: Johns Hopkins University Press, 2004), 870–71 (quoting the Prince of Orange making this claim in French). 11. Baron de Montesquieu, The Spirit of Laws (Kitchener, Ont.: Batoche Books, 2001), 84. 12. Bill of Rights, 1 W. & M., 2d. sess., c. 2, Dec. 16, 1689. 13. Alexander Hamilton, Federalist No. 69, in The Federalist Papers, ed. Garry Wills (New York: Bantam Books, 1982), 350. 14. U.S. Const., art. I, § 8, cl. 11. 15. U.S. Const. art. II, § 1, cl. 8. 16. Helvedius, “No. 1,” in The Papers of James Madison: Congressional Series, vol. 15, 24 March 1793–20 April 1795, ed. Thomas A. Mason, Robert A. Rutland, and Jeanne K. Sisson (Charlottesville: University of Virginia Press, 1985), 66, 69, 72. 17. “Letter from Thomas Jefferson to James Sullivan, Feb. 9, 1797,” in The Papers of Thomas Jefferson, vol. 29, 1 March 1796–31 December 1797, ed. Barbara  B. Oberg (Princeton, N.J.: Princeton University Press, 2002), 289.

26  S a ikrishn a B a ng a lore Pr a k a sh 18. Louis Fisher, “The Korean War: On What Basis Did Truman Act?” American Journal of International Law 89 (1995): 33–34. 19. An Act further to protect the commerce of the United States, July 9, 1798, § 1, 1 Stat. 578, 578 (authorizing the capture of any armed French vessels in U.S. waters and on the high seas, but omitting authority to capture in French waters). 20. U.S. Const., art. II, § 2, cl. 2. 21. Michael D. Ramsey, “Executive Agreements and the (Non)Treaty Power,” North Carolina Law Review 77 (1998): 199. 22. Glen S. Kurtz and Jeffrey S. Peake, Treaty Politics and the Rise of Executive Agreements: International Commitments in a System of Shared Powers (Ann Arbor: University of Michigan Press, 2009), 39. 23. David  M. Golove, “Treaty-­Making and the Nation: The Historical Foundations of the Nationalist Conception of the Treaty Power,” Michigan Law Review 98 (2000): 1089–91, 1137–39. 24. Edward S. Corwin, The President: Office and Powers, 5th ed. (New York: NYU Press, 1984), 245; and John C. Yoo, “Laws as Treaties?: The Constitutionality of Congressional-­ Executive Agreements,” Michigan Law Review 99 (February 2001): 778–80. 25. United States Congress, “Resolution of Ratification: Senate Consideration of Treaty between the United States of America and the Russian Federation on Measures for Further Reduction and Limitation of Strategic Offensive Arms,” Section 11B (December 22, 2010), https://​www​.congress​.gov​/treaty​-­­document​/111th​-­­congress​/5​/resolution​-­­text. 26. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842–44 (1984). 27. Emergency Economic Stabilization Act of 2008, 122 Stat. 3766–67. 28. David M. Herszenhorn and David E. Sanger, “Bush Approves $17.4 Billion Auto Bailout,” New York Times, December 19, 2008. 29. “Transcript: President Bush on Auto-­Industry Bailout,” Fox News, December 19, 2008, https://​www​.foxnews​.com​/politics​/transcript​-­­president​-­­bush​-­­on​-­­auto​-­­industry​-­­bailout. 30. Ricardo Alonso-­Zaldivar and Julie Pace, “How Trump’s Executive Order Impacts Future of the Affordable Care Act,” PBS News, January 21, 2017, https://​www​.pbs​.org​ /newshour​/health​/trump​-­­executive​-­­order​-­­affordable​-­­care​-­­act. 31. “Remarks by President Trump at the Conservative Political Action Conference,” White House, February 23, 2018, https://​www​.whitehouse​.gov​/briefings​-­­statements​ /remarks​-­president​-­­trump​-­­conservative​-­­political​-­­action​-­­conference​-­­2/. 32. Ilya Somin, “Obama, Trump and the Perils of Illegal Obamacare Subsidies,” Washington Post, August 2, 2017, https://​www​.washingtonpost​.com​/news​/volokh​-­­conspiracy​/wp​ /2017​/08​/02​/obama​-­­trump​-­­and​-­­the​-­­perils​-­­of​-­­illegal​-­­obamacare​-­­subsidies​/​?utm​_term​=​ .96d2415369fe. 33. Jennifer Haberkorn, “House GOP Wins Obamacare Lawsuit,” Politico, May 12, 2016, https://​www​.politico​.com​/story​/2016​/05​/house​-­­gop​-­­wins​-­­obamacare​-­­lawsuit​-­­223121. 34. “The President’s Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them, Memorandum Opinion for the Deputy Counsel to the President, September 25, 2001,” Opinions of the Office of the Legal Counsel of the United States Department of Justice, vol. 25, ed. Nathan  A. Forrester (Washington, D.C., 2012), 196, 201. 35. See Oliver Wendell Holmes, “The Path of the Law,” Harvard Law Review 10 (1897): 457, 459. 36. Alexander Hamilton, Federalist No. 70, in The Federalist Papers, ed. Wills, 356. 37. Records of the Federal Convention, 66.

The Living Presidency  27 38. Ibid. 39. Charles C. Thach Jr., The Creation of the Presidency, 1775–1789: A Study in Constitutional

History (Baltimore, Md.: Johns Hopkins University Press, 1922), 138–39. 40. Bill of Rights, 1689, 1 W. & M., C. 2 (Eng.). 41. Vt. Const., ch. I, § XVII (1789); ibid., ch. II, § XI; The Frame of the Government of Pennsylvania, art. VIII, 1682, in William Penn and the Founding of Pennsylvania: A Documentary History, ed. Jean R. Soderlund (Philadelphia: University of Pennsylvania Press, 1983), 123, 124. 42. Donald R. Deskins Jr., Hanes Walton Jr., and Sherman C. Puckett, Presidential Elections, 1789–2008 (Ann Arbor: University of Michigan Press, 2010), 3. 43. Joseph E. Kallenbach, The American Chief Executive: The Presidency and the Governorship (New York: Harper & Row, 1966), 78. 44. Daniel Webster, “The Presidential Protest,” in The Works of Daniel Webster, 18th ed., vol. 4 (Boston: Little, Brown, 1881), 144–45. 45. Ibid. 46. James Madison, Federalist No. 51, in The Federalist Papers, ed. Wills, 262.

CROSSROADS OF THE (C)ONSTITUTIONAL PRESIDENC Y How Ten Extraconstitutional Landmarks Shaped the Office MICHAEL NELSON

Many, perhaps most of the important decisions concerning the design of the American presidency were made during a four-­month period in 1787 in Philadelphia. There, at various crossroads of what later came to be called the Constitutional Convention, it was decided that the presidency would be a unitary office occupied by an individual, not a group of people. This individual would be chosen not by Congress or any other continuing body but by a decentralized Electoral College whose members were selected for this purpose by the states. The president would serve for a fixed term of four years, not a variable term, unless he resigned or Congress determined partway through that he had either committed “Treason, Bribery, or other high Crimes and Misdemeanors” or experienced an “Inability to discharge the Powers and Duties of the said Office.” No limit was placed on the number of terms to which a president could be elected. Finally, in service of what political scientist Richard Neustadt described as a system of “separated institutions sharing powers,” the executive and legislative branches were made institutionally distinct (no one could serve in both simultaneously, as in a parliamentary system) and were charged to share in the exercise of nearly all the powers entrusted to the new government.1 The power to enact legislation, for example, was granted to Congress, but at the front end of the legislative process the president was instructed to “recommend to their Consideration such Measures as he shall deem judge necessary and expedient” and, at the back end, to veto any bills he found objectionable.2 The framers of the Constitution did not regard their work as infallible. They anticipated that the country would arrive at crossroads in the future that they could not foresee, and that their plan of government needed to be flexible 28

Crossroads of the (c)onstitutional Presidency  29

enough to accommodate any unknown contingencies. For that reason, they included a process to amend the document that did not require, as had the Articles of Confederation that it replaced, the unanimous support of the states. That said, amending the Constitution remained an arduous undertaking. One-­third plus one of either the House of Representatives or the Senate can prevent Congress from attaining the two-­thirds majority of both chambers needed to propose an amendment. If an amendment is proposed, barely thirteen of the now ninety-­nine houses of the fifty state legislatures (all but the Nebraska legislature are bicameral) can deny it ratification, since the approval of three-­fourths of the states is required.3 The consequence, according to constitutional scholar James Sundquist, is that “for an amendment to clear the constitutional barriers to passage, its acceptance must come close to unanimity. . . . [A] proposed amendment either must have no measurable adverse effect on anybody . . . or must distribute its adverse effects so nearly neutrally that no substantial interest is offended.”4 Since the Bill of Rights was added to the Constitution in 1791, the document has been amended seventeen times. Four of the amendments deal explicitly with the presidency and vice presidency.5 The Twelfth Amendment, enacted in 1804, modified the Electoral College by instituting separate ballots for president and vice president. The original Constitution’s requirement that each elector cast two ballots for president, with the candidate who finished second becoming vice president, foundered on the shoals of party competition in 1800 when the Democratic-­Republican candidate for president, Thomas Jefferson, ended up in a two-­way tie in the presidential election with his running mate, Aaron Burr. The other three constitutional amendments dealing with the presidency were enacted during the twentieth century. In 1933 the Twentieth Amendment fixed January 20 as the inauguration date for the president and January 3 as the start of the term for members of Congress. It also stipulated that the vice president–elect would become president if the president-­elect died or was disqualified. The Twenty-­second Amendment, which entered the Constitution in 1951, imposed a two-­term limit on the president. Sixteen years later, the Twenty-­fifth Amendment was added. It defined the full successorship rights of the vice president should a vacancy in the presidency occur, created procedures for dealing with presidential disabilities, and provided for the filling of vice-­presidential vacancies. The reason these four amendments were enacted is clear. Each was seen to remedy an important deficiency in the original constitutional design of the presidency, and each attracted broad bipartisan support. Lack of controversy does not mean ineffectuality, however. The Twelfth Amendment adapted the Electoral College to the reality of party competition, which the Framers had not anticipated. The Twentieth Amendment allowed newly elected presidents

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to hit the deck running with newly elected Congresses. The Twenty-­second Amendment thus far has barred five presidents from seeking a third term: Dwight  D. Eisenhower, Ronald Reagan, Bill Clinton, George  W. Bush, and Barack Obama. Perhaps most dramatic in its immediate practical effect, the Twenty-­fifth Amendment made possible the peaceful resolution of the Watergate crisis. Without it, Vice President Spiro Agnew’s resignation in 1973 would have left Speaker of the House Carl Albert, a Democrat, first in the line of succession. It seems unlikely that Congress would have been able to deal with the impeachment of Republican president Richard Nixon on its merits (and ultimately drive him to resign from office) if the consequence of doing so was to make Albert president instead of Gerald Ford, the vice president appointed under the Twenty-­fifth Amendment. As consequential as these four amendments have been, their importance has been rivaled, and arguably exceeded, by enduring changes in the presidency that, through practice rather than amendment, have come about when the office reached other historical crossroads. The amendments were added to the actual document, what we might call the Capital-­C Constitution. The changes discussed in the remainder of this chapter have been in the small-­c constitution, the rules—some unwritten, some legislative, and some party-­based— that govern presidential conduct. Like the formal additions to the document, these changes have transformed the presidency. Unlike the amendments, they have been animated by changes in norms, customs, and expectations. I discuss ten such changes, tracing each to its historical origin.

1. George Washington’s Inauguration As the first president, George Washington faced a challenge not unlike the one that confronted Richard Burbage, who by reputation was the first actor to portray the role of Hamlet on the stage. Like Burbage, Washington had a written text to guide him (one that, unlike Burbage, he had a hand in writing): the Constitution. But, also like Burbage, he found that the text did not tell him all that he needed to know in order to enact a previously unperformed role on the public stage. At the outset, Washington discovered, the Constitution made scant provision concerning how a president’s term of office should begin. To be sure, the document required that the new president take the oath stated in Article II by promising to “faithfully execute the Office of President of the United States, and to the best of my Ability preserve, protect and defend the Constitution of the United States.” As the only oath whose language is included in the Constitution, its swearing (or affirming) surely was meant to be an occasion of some significance. But that still left a lot of questions unanswered, especially if (as Washington did) the president intended for the start of the new term to be a

Crossroads of the (c)onstitutional Presidency  31

both dignified and republican celebration of national unity under the Constitution. As the historian Joanne Freeman has written, “Washington had an exceedingly difficult role: somehow he had to embody the new government’s dignity and authority without rising to monarchical excess.”6 In modern terms, Washington had to initiate the presidential role of chief of state, the living symbol of what unites Americans as a people. Other than the oath-­taking specified in the Constitution, it was the choices Washington made in April 1789 that became the wellspring of nearly every major aspect of presidential inaugurations in the centuries to come. These include the public nature of the oath-­taking, its accompaniment by an inaugural address, and the holding of a public celebration afterward. Washington chose to take the constitutional oath of office on the outdoor balcony of New York’s Federal Hall before a public audience. The first president then went inside to the Senate chamber to deliver the first inaugural address. The address sounded two themes that have echoed in the addresses of nearly all his successors.7 First, Washington paid “homage to the Great Author of every public and private good,” noting the benign workings of “providential agency” in the birth of the United States and urging Congress and the American people to earn “the propitious smiles of Heaven” by acting with justice and magnanimity. Second, he spoke of national unity and dedication to the Constitution. What the first president did not do was equally precedent setting, namely, use the inaugural address as an occasion to exercise his constitutional power to make “recommendation of particular measures” to Congress.8 The final event of the first presidential inauguration was a public fireworks display—not a ball, as on later inauguration days, but a festive celebration nonetheless. Decisions by Washington on other matters became normative as well, thereby entering the small-­c constitution. The Constitution made reference to the “principal Officer in each of the executive Departments,” even empowering the president to “require the Opinion, in writing” from each of them “upon any Subject relating to the Duties of their respective Offices.” The document said nothing, however, about the department heads as a collective body. It was Washington whose desire “to compare the opinions of those in whom I confide” led him to gather “the Heads of the Great Departments” and, at the start of his second term, to refer to them as the cabinet.9 Yet not all of Washington’s innovations took root to become normative. For example, initially interpreting the “Advice and Consent” provision of the Constitution concerning treaties to mean that he should go to the Senate to seek its advice before initiating negotiations with, in the first instance, the Creek Indians, Washington found the encounter to be frustratingly unhelpful. On his way out the door he reportedly fumed that he would “be damned if I ever went there again.”10 Neither he nor any future president repeated the experiment. Advice and consent, instead of being treated as separate stages of the process,

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would henceforth come only at the end, when the president submitted a completed treaty to the Senate. Washington also interpreted the veto provision of the Constitution—which provides no guidance concerning when a veto is appropriate—to mean that he should only veto bills that he regarded as unconstitutional. He signed “many Bills with which my Judgment is at variance from motives of respect to the legislature.”11 As discussed later, this unwritten rule prevailed for a time but eventually gave way to another, more expansive one: that the president should feel free to veto any bill, constitutional or not, that he deems objectionable on policy grounds.

2. The First Congress and the Removal Power Washington was not the only one trying to sort out the ambiguities in the Constitution once the new government was under way. The First Congress was involved in this process as well. One prominent example: although the Constitution said that presidential appointments to the executive branch (like treaty making) required the advice and consent of the Senate, it was silent concerning removal of appointed officials. Washington’s innovations concerning presidential inaugurations were matters of conduct. They took root as norms governing the approach of future presidents. The decisions concerning removal were dealt with differently, as matters of law. In each case, matters untreated in the Constitution became part of the “constitution.” When enacting the laws that created the first three departments—State, Treasury, and War—Congress had to address the constitutional silence on removal. In doing so, legislators implicitly addressed a larger issue: who should control the executive branch? Rep. James Madison of Virginia believed strongly that the president is the chief executive. On May 19, 1789, he introduced a resolution stating that “there should be established for the aid of the chief magistrate in executing the duties of his office the following departments, to wit: a department for foreign affairs . . . Treasury . . . [and] war.”12 The House of Representatives signaled its initial reluctance to recognize the executive nature of the departments by voting to strike the phrase “for the aid of the chief magistrate in executing the duties of his office” from Madison’s resolution. A month later, when the State Department bill came before the House, this reluctance was made manifest in the debate over a provision that the secretary of state “shall be removed from office by the President of the United States,” acting alone. Several positions emerged in the debate. Rep. Roger Sherman of Connecticut, who like Madison was an influential participant in the Constitutional Convention, argued that Congress had the power to assign the removal power in any way it saw fit. Rep. William Smith of South Carolina interpreted the Constitution to mean that the only appropriate process for removing an

Crossroads of the (c)onstitutional Presidency  33

executive official was impeachment. Others argued that because the Constitution requires the Senate’s consent for appointments, it must also require the Senate’s consent for removals. Much to Madison’s dismay, they were able to cite Federalist No. 77 in defense of their argument. Of the Senate, Alexander Hamilton had written, “The consent of that body would be necessary to displace as well as to appoint.”13 On June 17 Madison attacked all of these positions and defended the president’s exclusive power of removal. He agreed that the Constitution’s appointment provision, taken by itself, is ambiguous. “But there is another part of the constitution . . . ,” Madison argued; “it is that part which declares that the executive power shall be vested in a president of the United States.” How could presidents be held accountable for executing the laws if they lacked the authority to remove officials who were impeding their efforts? One week later, the House voted 29–22 to enact the State Department bill, including Madison’s presidential removal clause. On July 14 the Senate split 10–10 on a motion to strike that clause. Vice President John Adams broke the tie in favor of presidential removal, which President Washington favored. The Senate approved the entire bill on July 18 by a 10–9 vote, and Washington signed it into law nine days later. The State Department bill established a precedent: every department’s principal officers are removable by the president alone. But as hard as the Constitution is to change by amendment, changing the small c-­constitution is at least somewhat easier. When Andrew Johnson became president in 1865, Congress passed the Tenure of Office Act, which required the president to secure the Senate’s approval to remove an official. Only after his departure did Congress restore the practice instituted by the First Congress.

3. Thomas Jefferson and the Two-­Term Tradition Thomas Jefferson did not attend the Constitutional Convention of 1787. Like John Adams, who was the American minister to Great Britain, he was representing his country abroad at the time, as minister to France. Although Jefferson generally admired both the delegates to the convention (an “assembly of demigods,” he observed from Paris, only half ironically) and the plan of government that they produced, he objected strongly to the absence of a term limit on the president. “Their President seems like a bad edition of a Polish king,” Jefferson lamented in a letter to Adams on November 13, 1787. “He may be reelected from 4. years to 4. for life. . . . Once in office, and possessing the military force of the union, without either the aid or check of a council, he would not be easily dethroned, even if the people could be induced to withdraw their votes from him. I wish that at the end of the 4. years they had made him for ever ineligible a second time.”14

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As president, Jefferson tempered his objections to presidential reeligibility enough to run for a second term in 1804. He was reelected easily, by a margin of 162 to 14 electoral votes over the Federalist candidate, Charles Cotesworth Pinckney of South Carolina. Still, Jefferson’s expediency on the term-­limit issue extended only so far. In 1806 and 1807, six state legislatures petitioned him to stand for a third term. In all likelihood, he would have been reelected if he had allowed his name to go forward. The Federalist Party was growing steadily weaker. Jefferson’s hold on the Democratic-­Republican Party was strong. His popularity, although not as great as in 1804, was more than sufficient to win a third term. But two terms was Jefferson’s limit. On December 10, 1807, in a letter to the legislature of Vermont, he stated his belief that no president should serve in office longer than eight years. Echoing his two-­decade-­old letter to Adams, Jefferson wrote, “If some termination to the services of the Chief Magistrate be not fixed by the Constitution, or supplied by practice, his office, nominally four years, will in fact become for life, and history shows how easily that degenerates into an inheritance.”15 To strengthen his argument for an unwritten two-­term limit, Jefferson even invoked “the sound precedent set by an illustrious predecessor,” George Washington. In truth, Washington retired for different reasons. He wanted the country to see that the Constitution was sound even without him at the helm. And, as he confessed in his farewell address, he longed for “the shade of retirement.”16 Jefferson’s longstanding desire to impose a limit on presidential reeligibility stood in sharp contrast to the intention of the Constitution’s Framers, who believed that the president should always have an electoral incentive to do the best possible job and that the voters should always be free to reelect (or reject) the incumbent.17 Yet Jefferson won his argument in the court of history. The two-­term limit became part of the small-­c constitution. No president even was nominated for a third term until 1940, when Franklin D. Roosevelt ran. The strength of Jefferson’s two-­term precedent was attested in the aftermath of the 1940 and 1944 elections. Far from shattering the norm, Roosevelt’s successful third-­and fourth-­term campaigns triggered such a strong conservative backlash that the Twenty-­second Amendment was enacted by Congress in 1947 and ratified by the states in 1951, forbidding third terms.

4. Andrew Jackson and the Veto Andrew Jackson’s veto of a bill Congress passed in 1832 to renew the Second Bank of the United States was politically important at the time and has remained important as a precedent-­setting norm concerning presidential conduct.

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Politically, Jackson regarded the bank as the leading institutional bastion of everything he opposed: favoritism for the eastern commercial and financial elite, excessive power for the federal government, and support for the opposition National Republican, or Whig, Party because it turned vote-­rich commercial states like New York and Pennsylvania against the Democrats. Indeed, bank president Nicholas Biddle, encouraged by Sen. Henry Clay of Kentucky, Jackson’s opponent in the forthcoming 1832 presidential election, asked Congress to renew the bank’s charter four years before the old charter was scheduled to expire because Clay thought that a veto by Jackson would be a good issue for the Whigs in the election. Despite Jackson’s opposition, Congress acceded to Biddle’s request. All of Jackson’s predecessors used the veto sparingly. In forty years, presidents George Washington through John Quincy Adams vetoed a total of nine bills, only three of them important. Following Washington’s practice, Federalist and Democratic-­Republican presidents alike had believed that the veto should be reserved for legislation that was of doubtful constitutionality. Jackson interpreted the veto power differently, grounding his view in a new and expansive conception of the presidency. The president, Jackson believed, was a truer representative of the people than Congress. He was their “tribune,” the only person in the government who was elected by the entire country and could claim to articulate the national interest. As a consequence, Jackson regarded the president’s judgment that an act of Congress is unwise public policy as sufficient grounds for a veto. On July 10, 1832, seven days after Congress voted to renew the charter of the national bank, Jackson sent his veto message to Capitol Hill. He took pains to explain his constitutional objections to the bank, refusing to defer to the Supreme Court on matters of constitutional interpretation. (In 1819 the Court had upheld the constitutionality of the nation’s first national bank in McCulloch v. Maryland.) “The Congress, the executive, and the court must each for itself be guided by its own opinion of the Constitution,” Jackson wrote.18 But he also made clear that he regarded his opinion that the bank was bad for the country as reason enough to cast a veto. Congress failed to muster the two-­thirds majority needed to override Jackson’s veto of the bank bill. Clay’s confidence that the country was on his side was misplaced. In the 1832 election, the president vanquished Clay by a margin of 219–49 in the Electoral College and 54 percent to 37 percent in the popular vote. Both the veto and the theory of the presidency that underlay it established norms that were of lasting significance. In the short term, Jackson’s successors institutionalized his practice of vetoing bills on policy as well as constitutional grounds. In the long term, the attitude that the president is the people’s main

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representative in government took hold widely and deeply, if controversially, in the American political system.

5. Abraham Lincoln and Presidential Prerogative During much of the quarter-­century that followed the Jackson presidency, the rapidly expanding nation was torn by disagreement over the extension of slavery into new territories and states. In 1860, two years after his unsuccessful but widely admired campaign for U.S. senator from Illinois against Democratic incumbent Stephen A. Douglas, Abraham Lincoln was nominated for president by the recently formed Republican Party. Despite winning only 40 percent of the popular vote, Lincoln carried all eighteen free states (but none of the fifteen slave states) and triumphed over three opponents, including Douglas. Although Lincoln pledged not to attack the constitutionally protected rights of slave owners in the southern and border states, his opposition to extending slavery beyond its existing boundaries prompted seven Deep South states to secede from the Union on news of his election. On February 7, 1861, nearly a month before Lincoln’s inauguration, they formed the Confederate States of America. Before leaving office, President James Buchanan told Congress that although states had no constitutional right to secede, he had no constitutional authority to stop them. Lincoln disagreed strongly. He used his March 4 inaugural address to warn secessionists that they would not be allowed to leave the Union peacefully. “You have no oath registered in Heaven to destroy the government,” he declared, “while I shall have the most solemn one ‘to preserve, protect, and defend’ it. You can forbear the assault; I can not shrink from the defense of it.”19 Ignoring Lincoln’s warning, on March 5 rebel forces massed near Fort Sumter in Charleston, South Carolina. On April 12 they fired on the fort, which soon fell. On May 3 Lincoln issued a proclamation calling the various state militia into national service and asked for seventy-­five thousand volunteers to assist in executing the national laws. Four more southern states seceded and joined the Confederacy. Border states, notably Kentucky, Maryland, and Missouri, seriously considered secession as well. Although calling up the militia was clearly among the president’s constitutional powers, other actions that Lincoln took during the spring of 1861 were not. As was the custom in this era, the outgoing Congress adjourned after the president’s inauguration and the new one was not scheduled to convene until December. With Congress out of session, Lincoln unilaterally increased the size of the army and navy, ordered a blockade of southern ports, suspended the writ of habeas corpus (the constitutional guarantee against detention without legal cause) in certain militarily vital parts of the country, instructed the Treasury to give $2 million to two secret agents to purchase military supplies,

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imposed new passport regulations on foreign visitors, and barred “treasonable correspondence” from being delivered by the post office. Having set the Union war machine in motion, Lincoln called a special session of Congress on July 4. He greeted it with a written message defending all of his actions: those he “believed to be strictly legal,” such as calling up the militia and imposing a blockade; those whose legality had been questioned but that he felt were within his constitutional authority, especially the suspension of habeas corpus; and those, “whether strictly legal or not,” that he took in response to “what appeared to be a popular demand, and a public necessity,” including his “large additions to the regular Army and Navy.”20 On New Year’s Day 1863, Lincoln, acting on his own authority as he had during his first months in office, issued the Emancipation Proclamation, which freed “all persons held as slaves within any State or designated part of a State, the people whereof shall then be in rebellion against the United States.” Sometime later, Kentuckian Albert G. Hodges, the editor of the Frankfort Commonwealth, asked the president why he had felt compelled to abandon his longstanding pledge not to interfere with slavery where it already existed. Lincoln replied by letter on April 4, 1864, intending that Hodges make the letter public. In his letter, Lincoln argued that it made no sense to observe constitutional niceties while the ultimate purpose of the Constitution—to govern and sustain the Union—was under siege. “Was it possible to lose the nation and yet preserve the Constitution?” he asked, rhetorically. “By general law, life and limb must be protected, yet often a limb must be amputated to save a life; but a life is never wisely given to save a limb.” Defending his actions during his first few months in office and afterward, Lincoln added: “I felt that measures otherwise unconstitutional might become lawful by becoming indispensable to the preservation of the Constitution through the preservation of the nation.”21 Although Lincoln did not mention John Locke, his letter to Hodges was reminiscent of the seventeenth-­century English philosopher’s discussion of prerogative in his Second Treatise of Government. In the absence of and sometimes in defiance of law, Locke argued, an executive must obey “this fundamental law of nature and government, viz., that, as much as may be, all the members of society are to be preserved.” Prerogative is “the people’s permitting their rulers to do several things of their own free choice, where the law was silent, and sometimes, too, against the direct letter of the law, for the public good, and their acquiescing in it when so done.”22 The check on executive power in such an instance is the elected legislature’s subsequent decision to accept or reject the propriety of the executive’s actions. Certainly Lincoln could claim that, for the most part, his exercises of prerogative power were vindicated. To be sure, some denounced him as a dictator. But in August 1861, after several weeks of debate, Congress declared most of the president’s early actions to be “hereby approved and in all respects legalized and

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made valid, to the same effect as if they had been issued and done under the previous express authority and direction of the Congress of the United States.” In 1862 and 1863 Congress retroactively validated most of Lincoln’s other actions. Not just Congress but the voters endorsed the president’s unusual wartime leadership. Lincoln won 55 percent of the popular vote and carried all but three Union states in his bid for reelection in November 1864.

6. Theodore Roosevelt and the Rhetorical Presidency To say that presidents in the eighteenth and nineteenth century were to be seen but not heard is an overstatement—but not by much. Candidates for president were expected to stand, not run, for office, pretending to let the presidency seek them even as partisan allies campaigned on their behalf. Once in office, speeches by the president on formal or ceremonial occasions, such as the inauguration or the dedication of the national cemetery at Gettysburg, were regarded as appropriate. Speeches urging Congress to enact a presidentially sponsored piece of legislation or criticizing Congress for failing to do so were not. Although not in the Constitution, the rule barring presidential rhetoric was no less binding for being normative rather than written. The power of the small-­c constitution to restrict presidential conduct was revealed after one president, Andrew Johnson, dared to violate it. In 1866, when Johnson made a “Swing around the Circle”—that is, a speaking tour of the country to promote his agenda—he provoked the House to pass two articles of impeachment condemning him for “attempt[ing] to bring into disgrace, ridicule, hatred, contempt and reproach the Congress of the United States.”23 By the end of the nineteenth century, the public was ready for a different style of presidential leadership. The rise of powerful national corporations had caused more people to turn to the national government—and in particular to its most visible element, the president—to provide a countervailing source of power. Presidential elections were first to be affected. In 1900 Democratic presidential nominee William Jennings Bryan actively campaigned, giving hundreds of speeches urging his own election. The Republicans’ candidate for vice president, Theodore Roosevelt, followed Bryan from town to town, answering him with speeches of his own. After succeeding to the presidency when President William McKinley was assassinated in 1901, Roosevelt ushered in what political scientist Jeffrey Tulis has called the “rhetorical presidency”—that is, the use of popular rhetoric as a principal technique of presidential leadership.24 Its origins lay in Roosevelt’s campaign to persuade Congress to enact the Hepburn Act, a bill to enhance the regulatory power of the federal government over the nation’s railroads. The act was opposed by conservative senators in the president’s own party, who

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managed to stifle it in committee. “Gradually,” wrote Roosevelt, “I was forced to abandon the effort to persuade them to come my way, and then I achieved results only by appealing over the heads of the Senate and House leaders to the people who were masters of both of us.”25 Roosevelt’s speaking tour of the Midwest and Southwest in April and May 1905 had the desired effect. An aroused public opinion eventually overcame Senate resistance to the Hepburn Act, and it was passed into law in 1906. The president of the Rock Island Line confided to Secretary of War William Howard Taft that senators who had sworn their “allegiance” to the railroad companies yielded because the president so “roused the people that it was impossible for the Senate to stand against the popular demand.”26 The small-­c constitution’s unwritten rule had been that presidents should not go “over the heads of the House and Senate leaders to the people.” The new unwritten rule was that “going public” is part of the president’s job description, a practice later enhanced by the rise of radio, television, and the internet as means of direct presidential communication with the American people.27

7. Franklin D. Roosevelt and the White House Staff The first inauguration of Franklin D. Roosevelt as president, on March 4, 1933, was followed by an explosion of legislative activity aimed at combating the Great Depression. During Roosevelt’s fabled “first hundred days,” Congress passed more than a dozen pieces of major administration-­sponsored legislation. After the 1934 midterm elections, in which the president’s party broke historical precedent by gaining seats in the House and Senate, Congress passed additional legislation. Cumulatively, these laws created a large and active role for the federal government in the nation’s economy. Because Roosevelt doubted the loyalty and competence of most of the existing executive departments and agencies, which had been created in less active times and were staffed mainly by his Republican predecessors, he persuaded Congress to authorize new agencies to carry out many of his programs. By adding so many components to the executive branch, however, Roosevelt created an administrative monster. He was frustrated by his inability to get the information he needed from the sprawling bureaucracy or to communicate his desires for action to it effectively. On March 20, 1936, Roosevelt appointed the Committee on Administrative Management, better known as the Brownlow Committee after its chairman, Louis  D. Brownlow. The two other members were fellow political scientists Charles E. Merriam and Luther Gulick. The committee’s charge was to design and recommend an overhaul of the executive branch that would make it more efficient and responsive to the president. On January 8, 1937, Brownlow and his colleagues issued their report, which Roosevelt accepted wholeheartedly.

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Arguing that “the president needs help,” the Brownlow Committee recommended that presidents be authorized to hire six personal assistants “possessed of high competence, great physical vigor, and a passion for anonymity” for a new White House Office. Their task would be to help the president “in obtaining quickly and without delay all pertinent information possessed by any of the executive departments so as to guide him in making responsible decisions; and after decisions have been made, to assist him in seeing to it that every administrative department and agency affected is promptly informed.”28 In addition to these personal staff positions, the Brownlow Committee recommended the creation of the Executive Office of the President (EOP) to serve the long-­term interests of the presidency as an institution. The main components of the EOP would be the Bureau of the Budget, then housed in the Treasury Department, and the Civil Service Commission, an independent agency. After receiving the Brownlow Committee’s report, Roosevelt immediately asked Congress for authorization to implement its recommendations. Angry over the president’s recent effort to “pack” the Supreme Court—which failed because the Court’s nine-­member size had through practice become part of the small-­c constitution—Congress did not approve the president’s request until April 1939.29 Even then, the Civil Service Commission was left independent. On September 8, 1939, Roosevelt issued Executive Order 8248, and some of the Brownlow Committee’s major proposals took effect. The White House staff not only grew dramatically in size during subsequent administrations, but also grew in importance. Presidents came to regard the cabinet as a collection of narrowly focused advocates for their individual departments. The staff, in contrast, owed its allegiance to no one but the president and, in any event, was at the president’s side, not scattered across the capital in the buildings that house the departments. Far from anonymous, staff members became visible to the public and influential within the Washington community. The Constitution was unaltered. The constitution was transformed.

8. The McGovern-­Fraser Commission and the Reformed Nominating Process In 1968 the Democratic Party, which had dominated American politics since Franklin Roosevelt’s New Deal, was torn apart by divisions over the Vietnam War. Challenged for renomination by antiwar opponents Eugene McCarthy, a senator from Minnesota, and Sen. Robert F. Kennedy of New York, President Lyndon B. Johnson declined to seek another term. After a bitter nominating contest marked by riots outside the convention hall in Chicago, the Democrats nominated Vice President Hubert H. Humphrey.30 One major complaint by supporters of Humphrey’s defeated opponents was that they had not been given a fair chance to compete in the process

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through which convention delegates were chosen. Only about one-­third of the delegates were elected in primaries; the remaining two-­thirds were appointed by state party leaders, many of them before the election year even began. The primary-­selected delegates strongly supported McCarthy or, until he was assassinated on June 4, Kennedy. The appointed delegates translated their superior numbers into control of the convention and nominated their favored candidate, Humphrey. Although the 1968 convention made few changes to its own structure, it voted to require that all Democratic voters receive “full, meaningful and timely opportunity to participate in the selection of delegates” to the 1972 convention. In political scientist Frank Sorauf ’s terms, the “party organization” was to be supplanted by the “party in the electorate” in selecting the nominee to lead the “party in office.”31 To implement the convention’s decision, in February 1969 the Democratic National Committee created the Commission on Party Structure and Delegate Selection, chaired by Sen. George McGovern of South Dakota and, later, by Rep. Donald Fraser of Minnesota. The McGovern–Fraser Commission issued its report, Mandate for Change, in September 1971. The report included eighteen detailed guidelines that state parties were obliged to follow in choosing delegates to the 1972 convention.32 Although the McGovern–Fraser Commission received little attention at the time, it transformed the presidential nominating process in ways that tied presidents to their grassroots constituents more closely than to party leaders in Congress and the states. The commission banned a number of traditional practices, including the “unit rule” that allowed each state party to award all of its votes to the candidate who had a majority of the delegation. The commission also required that racial minorities, women, and young voters be represented at the national convention in proportion to their share of the population in each state. Most important, the commission demanded that all convention delegates be chosen in an open, participatory process, either a presidential primary or a caucus in which any Democrat could vote. To the surprise of the McGovern–Fraser Commission most states decided to go the simpler, primary route. By the end of the decade the number of presidential primaries had doubled from seventeen to thirty-­five, a number that later would rise to exceed forty. Because the new primaries required changes in state laws, state Republican parties followed the Democrats’ lead. The McGovern–Fraser reforms affected not just the process but also the politics of presidential nominations. In 1960 John F. Kennedy, a Democrat, and eight years later, Richard Nixon, a Republican, entered primaries, but only as a strategy to persuade the party leaders who controlled nominations that they were electable. In 1968, after Johnson withdrew from the race in March, Humphrey received the Democratic nomination without entering a single primary.

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But since 1972 party leaders have had no choice but to accept the verdict of the primaries. No one has been nominated for president by either of the two major parties without defeating their rivals at the ballot box.

9. Richard Nixon and Impeachment On July 17, 1972, five burglars secretly employed by the Committee to Re-­elect the President (better known by its acronym, CREEP) were caught breaking into the headquarters of the Democratic National Committee in the Watergate hotel and complex building in Washington. The chain of command that authorized the break-­in, as well as a host of other illegal and unethical campaign activities, reached high into the administration of President Richard Nixon. In an effort to avoid embarrassing revelations, Nixon and some of his closest aides in the White House responded to news of the burglary by trying to obstruct official investigations into what happened. A combination of actions brought to light evidence of Nixon’s involvement in the Watergate cover-­up. These included diligent investigations by Bob Woodward and Carl Bernstein of the Washington Post and other reporters in 1972 and 1973; hearings by a special Senate committee chaired by Democratic senator Sam Ervin of North Carolina during the summer of 1973; testimony before the Ervin committee by White House counsel John Dean and other participants in the Watergate affair regarding their own, each other’s, and (in Dean’s case) the president’s culpability; and the release of secret White House tape recordings. In February 1974 the House Judiciary Committee began to consider impeaching the president for “high Crimes and Misdemeanors” in the second of only four serious presidential impeachment proceedings in American history. Between July 27 and 29, the committee voted to recommend three articles of impeachment to the full House of Representatives.33 Article I, which the committee approved by a bipartisan 27–11 vote, charged that Nixon violated his oath to “preserve, protect, and defend the Constitution” and his constitutional responsibility to “take Care that the Laws be faithfully executed” with actions that obstructed justice in the Watergate case. These actions included: withholding evidence, condoning perjury, approving the payment of “hush money” to the five burglars who were caught breaking into the Watergate, and interfering with lawful investigations by various executive and legislative entities. Article  II, approved 28–10, contended that the president misused and abused both his executive authority and the resources of various executive agencies, including the Federal Bureau of Investigation (FBI), the Central Intelligence Agency (CIA), the Internal Revenue Service (IRS), and the Justice Department’s Criminal Division and Office of Watergate Special Prosecution Force. This article involved the Watergate cover-­up and other misdeeds,

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such as a covert break-­in, sponsored by White House operatives, into the office of Dr. Lewis Fielding, who was psychiatrist to former Defense Department employee Daniel Ellsberg. In particular, White House recordings revealed that Nixon ordered the CIA to tell the FBI not to investigate the Watergate break-­in too carefully for the false reason that national security would be jeopardized. Article III, approved 21–17, charged Nixon with contempt of Congress for not cooperating with the House Judiciary Committee’s impeachment investigation. What emerged from the committee’s actions was a new working definition of “high Crimes and Misdemeanors.” The phrase, whose roots are in fourteenth-­century English common law, was archaic even in 1787, when the delegates to the Constitutional Convention decided to include it in the Constitution. The records of their debates and discussion reveal almost nothing about how they defined it. For a time, “high Crimes and Misdemeanors” was construed broadly. In Federalist No. 65, Hamilton described impeachable offenses as “the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done to the society itself.”34 In other words, high crimes and misdemeanors encompassed all serious abuses of the constitutional authority of the office, regardless of whether criminal statutes were violated. In 1868, the House acted in accordance with this understanding when it approved eleven articles of impeachment against President Andrew Johnson, none of which involved indictable criminal offenses. In 1974, when deliberations over Nixon’s possible impeachment got under way, the Democrats on the Judiciary Committee paid lip service to the earlier understanding of high crimes and misdemeanors but, in an effort to attract bipartisan support, largely confined themselves to indictable crimes “to the manifest injury of the people of the United States.” For this reason the committee voted down two other proposed articles of impeachment. The first, which faulted the president for secretly bombing Cambodia, was judged not to be criminal. The second, Nixon’s evasion of income taxes, was found to be a personal rather than a political crime. In 1998, when the House voted to impeach Bill Clinton for his role in the Monica Lewinsky affair, it focused its inquiry entirely on alleged criminal behavior: “perjurious, false and misleading testimony to the grand jury,” “corruptly encourag[ing] a witness” to give such testimony, and obstruction of justice for a series of actions designed to “delay, impede, cover up, and conceal the existence of evidence.”35 As Tulis has shown, despite the intended meaning of high crimes and misdemeanors, “the understanding of the impeachment process as a legal process is now deeply engrained in our political culture.”36 Ignoring this historical alteration in the small-­c constitution, the House impeached Donald Trump in

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2019 without claiming that he had violated any statutes. Article I, titled “Abuse of Power,” charged that Trump “solicited the interference of a foreign government, Ukraine, in the 2020 United States Presidential Election . . . in pursuit of personal political gain” and “in a manner that compromised the national security.” Article II—titled “Obstruction of Congress” (significantly not “obstruction of justice,” which is a criminal offense)—charged that to prevent Congress from gaining evidence through “subpoenas seeking documents and testimony” from various executive branch agencies and officials, Trump “directed” them “not to comply.” Not surprisingly, for the first time in history, the Democrat-­controlled House’s decision to impeach Trump fell along near-­strict partisan lines, with House Republicans voting unanimously against both articles. Partisanship also prevailed in the Senate, a Republican-­controlled chamber. As a result both articles were voted down by a partisan majority of senators—another first.

10. Jimmy Carter, Walter Mondale, and the Vice Presidency Not every American admires Congress, agrees with the Supreme Court, or supports the president. But, except for the vice presidency, no constitutional office has been the object of ridicule. Even some vice presidents have ruefully joined in the fun. Woodrow Wilson’s vice president, Thomas R. Marshall, liked to tell about two brothers: “One ran away to sea; the other was elected vice president. And nothing was heard of either of them again.” John Nance Garner, who was Franklin D. Roosevelt’s first vice president, famously declared: “The vice presidency isn’t worth a bucket of warm piss.”37 Historically, the vice presidency’s main problem was rooted in its original design. The Constitutional Convention assigned the vice president only two duties: to preside over the Senate (a position that is significant only when the vice president breaks a tie vote) and to step in if something bad happens to the president (which it usually does not). These duties, in addition to being modest, stranded the vice president in a constitutional no-­man’s land, somewhere between the executive and legislative branches. During the Carter administration, however, a lasting constitutional change in the vice presidency occurred. Starting then the office has grown both in prestige and influence even though the Constitution has remained substantially unaltered.38 Much of the credit for this transformation lies in the agreement forged between Carter and Walter F. Mondale in response to a memo that Vice President–elect Mondale wrote to President-­elect Carter on December 9, 1976, six weeks before the beginning of their term. Carter was the first in a series of state governors, including Ronald Reagan, Bill Clinton, and George W. Bush, to be elected president from 1976 to 2004.

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Barack Obama, who barely unpacked after his election to the Senate before starting his presidential campaign, was elected in 2008 and Donald J. Trump, with no experience in government at all, won in 2016. Like his successors, Carter realized that he needed a vice president with Washington experience to help him meet the challenges of his new job. Mondale had served two terms in the Senate when Carter selected him as his running mate. A protégé of his fellow Minnesotan, former vice president Humphrey, Mondale knew how frustrating the vice presidency could be. Humphrey especially warned Mondale against getting tied down with specific responsibilities, which tended to be time-­consuming but peripheral. Accordingly, Mondale proposed that his primary role be as “general adviser” to the president, consulting with Carter on virtually every matter that crossed the president’s desk. As vice president, Mondale argued, he was in a “unique position” to perform this role as “the only other public official elected nationwide, not affected by specific obligations or institutional interests of either the Congressional or Executive branch, and able to look at the government as a whole.”39 To make his advice useful, Mondale wrote, he would need access to the full range of information that Carter received, a professional staff, the right to participate in all important meetings, and, most important, “access to you” in the form of weekly private sessions and an office in the West Wing of the White House. Mondale promised not to neglect some other recently developed vice-­ presidential chores, such as “congressional relations,” “political action,” and “liaison with special groups.” But service as president of the Senate, he predicted, “will take a minimum amount of time” even though it is the only ongoing role assigned to the vice president by the Constitution. Carter approved Mondale’s memo in full, not just on paper but in practice throughout his presidency. Subsequent presidents and vice presidents accepted the Carter–Mondale innovations and institutionalized them. Clinton’s vice president, Al Gore, and George W. Bush’s, Richard Cheney, were if anything even more influential than Mondale. Vice President Joseph Biden was a major player in the Obama White House and on certain matters, notably executive branch appointments and relations with Congress, Trump’s vice president, Mike Pence, was as well.40 In obvious ways, the development of the American presidency has been affected by amendments to the Constitution. In less obvious but perhaps more important ways, the small-­c constitutional presidency has evolved as well. In the examples discussed in this chapter, changes sometimes came about through legislation or other official action. At other times it came about through changing norms of presidential conduct. Although most decisions made at various historical crossroads have endured, others, such as Washington’s understanding of when presidential vetoes are appropriate, have not.

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Is the presidency recognizably the office the Framers designed in 1787? In nearly all its main elements it is. Only one amendment undid a decision the delegates made with great intentionality: the imposition of a two-­term limit on an office that they strongly believed should always offer the prospect of reelection.41 But the Twenty-­second Amendment to the Constitution, which came closely on the heels of Roosevelt’s election to a fourth term, codified an alteration in the small-­c constitution that had taken root over the course of more than a century. Indeed, the strength of the two-­term norm was confirmed by the willingness of two-­thirds of Congress and three-­fourths of the states to bar the door to future violations. In other instances, aspects of the presidency that were poorly designed by the delegates have been clarified through amendment or practice.42 For example, the disability provision of Article II was carelessly crafted in ways that for nearly two centuries made it useless. “What is the extent of the term ‘disability’ and who is to be the judge of it?” asked John Dickinson at the convention.43 The delegates never returned to the subject, leaving those questions unanswered. Their failure immobilized the government when James Garfield lingered for eighty days before dying and Woodrow Wilson spent his last eighteen months in office hobbled by a severe stroke. No one knew who had the authority—or by what process—to transfer the powers and duties of the presidency to the vice president. That question was only answered in 1967 when the Twenty-­fifth Amendment created procedures for handling questions of presidential disability. Similarly, in a government whose branches were designed to be institutionally distinct, where did the vice presidency fit? Cobbled together during the convention’s closing days solely for the purpose of shoring up the Electoral College, the vice president was part of the legislature as president of the Senate, part of the executive as presidential successor, and therefore at home in neither branch. It took the Carter–Mondale agreement to clarify that over time the vice presidency had functionally become part of the White House. Beyond these examples, the Framers’ design of the presidency was clearly meant to be more a sketch than a blueprint. But in ways that adapted the office to changing times and circumstances—both by amending the Constitution and altering the constitution—it has fulfilled what delegate James Wilson identified as the main qualities the executive was meant to bring to the new government: “energy, dispatch, and responsibility.”44

Notes 1. Richard Neustadt, Presidential Power: The Politics of Leadership (New York: John Wiley, 1960). 2. For a full discussion of the creation of the presidency, see Sidney  M. Milkis and Michael Nelson, The American Presidency: Origins and Development, 1776–2018 (Washington, D.C.: CQ Press, 2020), chaps. 1–2.

Crossroads of the (c)onstitutional Presidency  47 3. For a state to ratify an amendment, both of its houses must approve. If even thirteen houses in thirteen states choose not to, the amendment will fall short of the required thirty-­ eight. Adding to the challenges attending ratification, seven state constitutions require the approval of an extraordinary majority of either two-­thirds or three-­fifths of the members of both houses in order to ratify. 4. James L. Sundquist, Constitutional Reform and Effective Government, rev. ed. (Washington, D.C.: Brookings Institution Press, 1990), 17. 5. “Constitutional Change and the Modern Presidency: The Twentieth, Twenty-­second, and Twenty-­fifth Amendments to the Constitution,” in L’empire de l’exécutif: La présidence des États-Unis de Franklin Roosevelt á George W. Bush (1933–2006) [Executive Supremacy: The American Presidency from Franklin Roosevelt to George W. Bush], ed. Pierre Lagayette (Paris: Presses de l’Université Paris–Sorbonne, 2007), 63–85. Other amendments relating to voting rights affected presidential elections, including those that granted the District of Columbia three electoral votes (Twenty-­third) and extended the right to vote to African Americans (Fifteenth), women (Nineteenth), and eighteen-­year-­olds (Twenty-­sixth). 6. Joanne B. Freeman, Affairs of Honor: National Politics in the New Republic (New Haven, Conn.: Yale University Press, 2001), 43. 7. Michael Nelson, “Speeches, Speechwriters, and the American Presidency,” in The President’s Words: Speeches and Speechwriting in the Modern White House, ed. Michael Nelson and Russell L. Riley (Lawrence: University Press of Kansas, 2010), 1–26. 8. George Washington, first inaugural address, April 30, 1789, American Presidency Project, https://​www​.presidency​.ucsb​.edu​/documents​/inaugural​-­­address​-­­16. 9. Richard  J. Ellis, The Development of the American Presidency (New York: Routledge, 2012), 249. 10. Milkis and Nelson, The American Presidency, 96. 11. Ellis, The Development of the American Presidency, 135. 12. Unless otherwise indicated, quotations in this section are from “James Madison’s Defense of the Removal Power (1789),” in The Evolving Presidency: Landmark Documents, 6th ed., ed. Michael Nelson (Washington, D.C.: CQ Press, 2019), 47–50. 13. The Federalist Papers No. 77, April 4, 1788, Avalon Project, http://​avalon​.law​.yale​.edu​ /18th​_century​/fed77​.asp. 14. Quoted in Jon Meacham, Thomas Jefferson: The Art of Power (New York: Random House, 2012), 213. 15. “Thomas Jefferson’s Letter to the Vermont Legislature (1807),” in The Evolving Presidency, ed. Nelson, 72–74. 16. “Washington Farewell Address, 1796,” Avalon Project, http://​ avalon​.law​.yale​.edu​ /18th​_century​/washing​.asp. 17. Milkis and Nelson, The American Presidency, 47. 18. “Andrew Jackson’s Veto of the Bank Bill (1832),” in The Evolving Presidency, ed. Nelson, 87–90. 19. Abraham Lincoln, first inaugural address, March 4, 1865, Avalon Project, http://​ avalon​.law​.yale​.edu​/19th​_century​/lincoln1​.asp. Emphasis in original. 20. “Abraham Lincoln’s Message to Congress in Special Session (1861),” in The Evolving Presidency, ed. Nelson, 91–96. 21. “Abraham Lincoln’s Letter to Albert G. Hodges (1864),” in The Evolving Presidency, ed. Nelson, 97–99. 22. John Locke, Second Treatise of Government [1690] (Indianapolis: Hackett, 1980), chap. 14. 23. “Articles of Impeachment against Andrew Johnson (1868),” in The Evolving Presidency, ed. Nelson, 110–18.

48  Mic h a el Nelson 24. Jeffrey K. Tulis, The Rhetorical Presidency (Princeton, N.J.: Princeton University Press,

1987).

25. Theodore Roosevelt, The Works of Theodore Roosevelt, vol. 20 (New York: Scribner’s, 1926), 342. 26. George W. Mowrey, The Era of Theodore Roosevelt, 1900–1912 (New York: Harper & Row, 1958), 203. 27. Samuel Kernell, Going Public: New Strategies of Presidential Leadership, 4th ed. (Washington, D.C.: CQ Press, 2007). 28. “Report of the Brownlow Committee (1937),” in The Evolving Presidency, ed. Nelson, 165–70. 29. Michael Nelson, “The President and the Court: Reinterpreting the Court-­Packing Episode of 1937,” Political Science Quarterly 103 (Summer 1988): 267–93. 30. Michael Nelson, Resilient America: Electing Nixon in 1968, Channeling Dissent, and Redividing Government (Lawrence: University Press of Kansas, 2014). 31. Frank J. Sorauf, Party Politics in America (Boston: Little, Brown, 1968). 32. “The McGovern–Fraser Commission Report (1971),” in The Evolving Presidency, ed. Nelson, 215–20. 33. “Proposed Articles of Impeachment against Richard Nixon (1974),” in ibid., 227–31. 34. The Federalist Papers No. 65, March 7, 1788, Avalon Project: http://​avalon​.law​.yale​.edu​ /18th​_century​/fed65​.asp. 35. “Articles of Impeachment against Bill Clinton (1998),” in The Evolving Presidency, ed. Nelson, 265–68. 36. Jeffrey  K. Tulis, “Impeachment in the Constitutional Order,” in The Constitutional Presidency, ed. Joseph M. Bessette and Jeffrey K. Tulis (Baltimore: Johns Hopkins University Press, 2009), 235. Tulis decries this development. 37. Milkis and Nelson, The American Presidency, 609. 38. Substantially but not entirely. The Twenty-­fifth Amendment had important consequences for the vice presidency. See ibid. 39. “Walter  F. Mondale’s Memo to Jimmy Carter on the Role of the Vice President (1976),” in The Evolving Presidency, ed. Nelson, 241–47. 40. Michael Nelson, Trump: The First Two Years (Charlottesville: University of Virginia Press, 2019). 41. Milkis and Nelson, The American Presidency, 383–86. 42. Michael Nelson, “Fixing the Founders’ Mistakes,” New York Times, December 29, 2017. 43. Max Farrand, ed., The Records of the Federal Convention, vol. 2 (New Haven, Conn.: Yale University Press, 1911), 427. 44. “James Madison, Notes of the Federal Convention (1787),” in The Evolving Presidency, ed. Nelson, 1–6.

ON BEING UNPRESIDENTIAL The Trumpian Moment in Historical Perspective RI CH A RD J. ELLIS

Donald Trump was in his element at the Florida state fairgrounds in Tampa for a campaign-­style rally in July 2018. Trump strutted onstage to the blaring strains of Lee Greenwood’s “God Bless the USA” and rhythmic chants of “USA, USA, USA.” As he almost always did at such events, Trump bragged about his “great victory” in 2016, the “beautiful Republican red” map, and an economy that was “setting records like never before.” He lambasted China’s unfair trade practices, the “fake polls” and “fake news,” the pundits who “don’t have a clue,” the politicians who failed to keep their promises to America’s farmers and workers, and of course the Democrats, “who want to raise your taxes, . . . destroy your jobs, [and] crush our industries with crippling regulations.” The partisan throng, some of whom had lined up outside the fairground’s main entrance twelve hours before, lapped it all up. But nothing thrilled the crowd more than when, about a half hour into the speech, Trump turned to the question of whether he was acting “unpresidential.” It began with Trump recounting a poll that showed him to be “the most popular person in the history of the Republican Party,” news that was met with a thunderous ovation inside the jam-­packed Expo Hall. After basking in the adulation for a long while, Trump impishly wondered whether that included “Honest Abe Lincoln,” who he had to admit was “pretty great.” Trump then turned to the oft-­repeated charge that “he’s not acting presidential.” His retort: “It’s a lot easier to act presidential than to do what I do. Anybody can act presidential.” To the crowd’s delight, he then demonstrated what being “presidential” looked like: first, scrunching up his face in a mock serious way, then rigidly walking, automaton-­like, first to the left, then to the right, before returning to the podium to mimic a so-­called “presidential” speech, as stilted and monotone as it was vacuous: “Ladies and Gentlemen. Of the State of Florida. Thank you very much for being here. You are tremendous people. And I will leave now because I am boring you to death.” Trump then pretended to shuffle robotically off the stage before returning to the podium to wild applause.1 49

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Being presidential, in Trump’s telling, was tedious, artificial, scripted. But it was more than just dull and contrived. It was all that was wrong with American politics and politicians. What others deemed to be decorum and dignity, Trump portrayed as marks of weakness and excuses for inaction. Those who called on Trump to act more presidential were really asking for business-­as-­ usual, for more of the same ineffective policies. As Trump explained at a rally in Youngstown, Ohio, in July 2017, “It’s so easy to act presidential, but that’s not going to get it done.  .  .  . We have to move a little bit faster than that.”2 A nation facing an existential crisis could not afford a president who was more worried about conforming to customary norms of civility and courtesy than restoring its greatness. Strong leaders, the truly great ones, those like Lincoln, did not allow themselves to be hemmed in by conventional ideas of how a president should behave. Instead they redefined the norms of presidential behavior. In Trump’s view, to behave presidentially was to submit to the dictates of entrenched elites and to allow lesser men—Lilliputians all—to confine and constrain him. Trump would not act “presidential” because he was determined to disrupt rather than conform to established practices and institutions. Trump was not wrong to think that the “unpresidential” charge was a way for elites of both political parties to attempt to make him behave more like a conventional politician and to limit his disruptions. Shared norms and understandings are by definition cultural constraints that limit individual agency and choice, and tagging behaviors as “unpresidential” is a way of activating norms that bind a leader.3 Trump also was right to intuit a strong connection “between great disruption and great leadership.” The so-­called “great” presidents, as political scientist Stephen Skowronek has emphasized, have often been “great disrupters.”4 Not coincidentally, many of the greatest disrupters, most notably Andrew Jackson and Theodore Roosevelt but also Thomas Jefferson and Abraham Lincoln, had to fend off charges that they were behaving in ways that were unpresidential or undignified. Does this mean that Trump is destined to take his place among the pantheon of the nation’s greatest presidents? Hardly. Andrew Johnson, routinely graded as among the nation’s worst presidents, was also a norm-­defying disrupter who invited the charge that he was unpresidential, but that behavior led not to greatness but to impeachment and disgrace. As Skowronek reminds us, “great disrupters become great presidents” not merely by shaking things up or pulling things apart but by creating new and enduring national political orders that are seen as legitimate. Johnson’s case also illustrates that norm violations can end up strengthening rather than transforming inherited conceptions of appropriate or desirable presidential conduct. Transformation is one possibility but backlash is another. The first Andrew redefined the presidential role, but the second served as a model of how not to behave as president.

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The development of the American presidency as well as Trump’s historical reputation depend importantly on whether the crossroads at which we stand is a Jacksonian or Johnsonian moment. Although we cannot see into the future, we can perhaps shed light on the current political moment by examining several important “unpresidential” moments in our nation’s past, each of which, not coincidentally, involved populist challenges to an established order. Placing Trump’s norm-­busting behavior in historical context will enable us to determine whether Trump was more akin to an Andrew Jackson and Theodore Roosevelt or whether he was closer to a twenty-­first-­century Andrew Johnson.

What the Founders Meant by Presidential Arguments about what qualifies as presidential or unpresidential are as old as the republic. The “first dispute between the Senate and the House” was not over national defense or economic policy but over whether it was appropriate to give the president an exalted title. The Senate favored a title commensurate with the chief executive’s dignified station. Among the favorites were “Most Serene Highness,” “The Most Illustrious,” or “his Excellency.” The House, in contrast, insisted such titles aped monarchical practices and were therefore unbecoming of a “plain republican” president. They insisted that Washington be addressed simply as the president of the United States.5 As the first president, Washington carefully navigated these competing ideas of what it means to behave presidentially. He did not want any part of a “superb but superfluous title” that would provide ammunition to the new government’s alarmist adversaries without doing anything to build public confidence in the president or the government. But he was less sure about how to interact with the public in a way that would be deemed properly presidential. He discreetly sounded out his most trusted political friends and allies for guidance. If invited, should he attend parties, funerals, private dinners? Should he invite members of the public to visit him? If he neither extended nor accepted public invitations, Washington worried that his behavior would be considered “an ostentatious show of mimicry of sovereignty” and that he would cut off “the avenues to useful information from the many, and make [himself] more dependent on that of the few.” However, if he made himself too readily accessible to the public he might diminish the office and be unable to carry out effectively the administrative work his high office required.6 Seeking an appropriate balance between public accessibility and dignified reserve, Washington decided to hold weekly afternoon levees at which the public, at least those who were “respectably dressed,” would have the opportunity to be introduced to the president. Polite bows and pleasantries were exchanged, but there was no shaking of hands. Moreover, no chairs were placed in the room so that citizens would not make the mistake of sitting in the

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president’s presence. Washington’s dress set the tone. He was outfitted “in black velvet; his hair in full dress, powdered and gathered behind in a large silk bag; yellow gloves on his hands; holding a cocked hat with a cockade in it, and the edges adorned with a black feather about an inch deep. He wore knee and shoe buckles; and a long sword, with a finely wrought and polished steel hilt. . . . The scabbard was white polished leather.” Most Americans seemed to think Washington’s demeanor eminently presidential, but not everybody agreed. Particularly scathing was Pennsylvania congressman and populist gadfly William Maclay. Ever vigilant about avoiding the “first step of the ladder in the ascent to royalty,” Maclay declared that the president’s afternoon levees were “certainly antirepublican,” even if others were afraid to say so out of “fear of being charged with a want of respect to General Washington.” From the beginning, then, conduct that some saw as evincing proper dignity, others saw as regal and therefore unpresidential. Thomas Jefferson wasted no time before redefining what it meant to be presidential in a more egalitarian direction. Although Washington and John Adams rode to their swearing-­in ceremonies in a fine carriage, with a ceremonial sword affixed to their side, Jefferson walked up Capitol Hill, sans sword, dressed only as “a plain citizen, without any distinctive badge of office.” Jefferson also dispensed with Washington’s formal receptions, preferring instead to admit all comers at almost any hour, often, as one diplomat clucked, “with a most perfect disregard to ceremony in both his dress and manners.” Jefferson’s carefully cultivated “republican simplicity of manners” struck many as unbecoming the nation’s chief magistrate. The British envoy was outraged when he showed up at the President’s House “in full court dress to present his credentials to the president of the United States” only to find Jefferson dressed in his “usual morning attire.” Nor was it only foreign dignitaries who objected to Jefferson’s “unceremonious chief executive.” Federalist senator William Plumer was appalled to find Jefferson in a state of “undress—Blue coat, red vest, . . . white hose, ragged slippers, with his toes out, clean linnen [sic], but hair disheveled.” To critics like Plumer, Jefferson was disrespecting and diminishing the office. To the president’s defenders, Jefferson’s plain republican manners helped to do away with the presidency’s “monarchical trappings” and brought the office closer to the people.7 Although Jefferson challenged a number of received ideas about how the nation’s president should behave, he also shared with Washington and John Adams some important assumptions about the presidential role. For starters, each of them believed that the president should be above party.8 Each also accepted that no one should campaign for the presidency; the office should seek the man, not the other way around.9 According to Jeffrey Tulis, each also shared the Founders’ view that the president should generally avoid making speeches to the people, particularly about public policy.10 Measured against

On Being Unpresidential  53

these stern conceptions of what it means to be presidential, there is no contemporary president who could avoid being judged thoroughly unpresidential. The transformation of the founding generation’s notions of what it meant to be presidential obviously did not occur overnight. Norms sometimes eroded gradually, almost imperceptibly. At other times, change was more precipitous. Different practices and expectations were dislodged or shifted at different periods. The process of remaking what it means to be presidential and unpresidential neither started nor did it end with Donald Trump.

The Jacksonian Disruption Although norms of properly presidential behavior have been continuously renegotiated throughout American history, Andrew Jackson and the movement that brought him to power produced the nineteenth century’s most profound disruption to the nation’s understanding of what it meant to be presidential. The populist force of the Jacksonian disruption was dramatized on inauguration day when thousands of the new president’s supporters converged on the Capitol. To the genteel residents of Washington accustomed to “the quiet and orderly period of the [ John Quincy] Adams administration, it seemed as if half the nation had rushed at once into the capital.” It was, said one, “like the inundation of the northern barbarians into Rome, save that the tumultuous tide came in from a different point of the compass. The West and South seemed to have precipitated themselves upon the North and overwhelmed it. Strange faces filled every public place, and every face seemed to bear defiance on its brow.”11 The traditional post-­inaugural public reception at the President’s House was like nothing the capital city had seen before. Normally an opportunity for Washington’s well-­heeled elite to pay their respects to the new president, the reception was “inundated by the rabble mob,” or so it seemed to Margaret Bayard Smith, who had been a fixture in Washington society since the first days of the Jefferson administration. By the time Smith finally was able to make her way to the President’s House, Jackson was nowhere to be found (he had taken refuge in his hotel after “having shaken some ten thousand hands”). What she found instead was a chaotic “mob of boys, negroes, women, children, scrambling, fighting, romping. Cut glass and china to the amount of several thousand dollars . . . broken in the struggle to get to the refreshments. . . . Ladies [who had] fainted, men . . . with bloody noses, and such a scene of confusion as is impossible to describe.” No doubt, some of the reports of brawling, destruction, and drunkenness were exaggerated, but they are nonetheless a telling guide to the anxieties that many elites felt about the disruptive power of a Jackson presidency. For both critics and supporters, the inaugural reception became a metaphor for a remaking of the relationship between the president and the people.12

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Unlike his predecessors, Jackson was neither well-­educated nor well-­bred. He was born in relative poverty. He did not have a famous name. He had no claim to be a Founding Father, nor indeed any connection to that generation. He was not the son of landed gentry or of a prominent statesman. His father was a recent émigré from Ireland, killed in a logging accident two years after arriving in the United States and three weeks before Andrew’s birth. Nor had Jackson been vetted and stamped with the approval of the governing class. Every president since John Adams had ascended to the presidency after serving as vice president or secretary of state—or in the case of Jefferson, both. In contrast, Jackson was catapulted to the forefront of American politics by his exploits as an Indian fighter and frontier warrior. Little wonder that Jackson became a symbol of a new, seemingly untamed democracy. Not coincidentally, he also became the first president to be referred to by a familiar nickname: “Old Hickory.” The nickname, as historian John William Ward pointed out, communicated a symbolic shrinking of the “vertical distance” between leader and led while simultaneously intensifying the people’s allegiance to and identification with the president.13 Being presidential meant being a man of and from the people. Jackson’s ties to the people were not merely symbolic. His presidency signaled not only a reimagining of who could be president but also a reinvention of the basis of presidential power and what was expected of a president. For the Framers, presidential elections were largely a means of selecting leaders, not empowering them, a way of choosing between distinguished characters, not rival public policies. The Constitution and laws, Kentucky senator Henry Clay insisted, were “the sole source of executive authority.” Jackson, though, repudiated this narrow understanding of the presidential role. He insisted instead that his election—and especially his reelection in 1832—gave him a popular mandate to pursue the policies he had promised the American people. According to Jackson, in reelecting him the people had approved his veto of the national bank. Because the people had spoken, Jackson was duty bound to follow their command to shutter the bank. Presidential leadership was really a form of followership. The president, moreover, spoke for “the humble members of society—the farmers, mechanics, and laborers,” while those in Congress who resisted the president were doing the bidding of special interests, the “rich and powerful,” who “too often bend the acts of government to their selfish purposes.” Being presidential meant being populist.14 Little wonder, then, that Trump and his allies (especially strategist Steve Bannon) rushed to claim Jackson as a kindred spirit. One of Trump’s first actions as president was to hang a portrait of Jackson next to his Oval Office desk. He even visited Jackson’s Tennessee home, the Hermitage, to lay a wreath on the tomb of the man he hailed as “the people’s president.” Like Jackson, Trump vowed to defy a corrupt and self-­dealing political establishment and “build an entirely new political movement” based not on out-­of-­touch elites

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but on the incorruptible common people.15 If Trump is a twenty-­first-­century Jackson, then he will deserve a special place in presidential history for transforming what it means to be president of the United States. There is no denying the disruptive, transformative effects of the Jackson presidency, but is Trump a twenty-­first-­century Jackson? Certainly, they share a language of populism and both were disdained by wide swaths of the political elite who regarded them as crude and wild, even dangerous. Former president John Quincy Adams deemed Jackson a “barbarian” who “hardly could spell his own name.”16 But in important respects Trump is nothing like Jackson. For starters, Jackson was immensely popular. Even Jackson’s most exacting critics, like New York City’s former mayor Philip Hone, conceded that Jackson was “certainly the most popular man we have ever known.”17 In contrast, Trump’s approval ratings were consistently low throughout his presidency.18 Jackson’s popular appeal crossed political parties, but Trump’s was largely limited to the Republican Party. And unlike Jackson, who was elected and reelected by huge margins, Trump lost the national popular vote both times he ran.19 Moreover, the Democratic Party that Jackson helped to build—a party that to this day is often described by historians of the antebellum period as the Jacksonian party—remained the dominant party until the Civil War, winning all but two of the eight presidential elections between 1828 and 1856. There is little evidence at this point that Trump has created the groundwork for a new governing coalition that will dominate American politics for the next several decades. Moreover, Jackson was far more complex than the populist caricature rendered by Trump and Bannon. To begin with, Jackson was no political novice. Unlike Trump, who never held any political office before becoming president, Jackson had been a senator and congressman (indeed, he was Tennessee’s first member of Congress), a territorial governor, a state attorney general, and a judge on Tennessee’s highest court. He was also among the delegates who drafted Tennessee’s original constitution. Moreover, despite the fears of the capital elite, President Jackson conducted himself with the decorum and courtesy of a gentleman, not surprisingly since Jackson had been a part of elite southern society for many decades. As president he was little given to the boasting, bullying, and bombast that were Trump’s daily hallmarks. Visitors who encountered Jackson were invariably struck by his gravity, gentility, and graciousness.20 General Jackson’s dignified bearing, in the White House as well as on tour around the country, was far closer to that of George Washington than Donald Trump. Jackson was not quite the populist wrecking ball of the Trumpian imagination. In 1828 and 1832, Jackson assiduously followed the well-­established custom of leaving partisan campaigning to surrogates. When Jackson went on tour in 1833 he carefully adhered to tradition, speaking little and avoiding comments

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that could be construed as partisan. When faced with the greatest crisis of his presidency—the threat of secession by South Carolina over high tariffs in the winter of 1832–33—Jackson navigated the standoff with diplomatic aplomb. To preserve the Union, he risked alienating his southern states’ rights base and welcomed support from erstwhile nationalist opponents like Daniel Webster. He projected a cool and firm resolve while acting with calculated forbearance, providing the space for Congress to negotiate new tariff legislation that could defuse the crisis. As Jackson told Martin Van Buren, “I have to look at both ends of the union (North and South) to preserve it.” Hardly the words or the actions of a “wild man.”21 Jackson’s success in defusing the Nullification Crisis, advancing his party’s political agenda, and building a new political regime owed greatly to his unrivalled personal popularity and his underappreciated political skills—as well as the political acumen of the many talented politicians and party-­builders he drew into his orbit, especially Van Buren, who followed Jackson into the presidency in 1836 after serving first as secretary of state and then vice president.

The Johnsonian Disruption A closer parallel to Trump may be Andrew Johnson, whom historian Kenneth Stampp aptly described as “the last Jacksonian.”22 Few thought the ill-­tempered and thin-­skinned Johnson was presidential material, but the Republican Party selected him as Lincoln’s running mate in 1864 anyway in hopes of luring disaffected Democrats to their “Union Party,” as the wartime Republicans then called themselves. As the only Democratic senator from the South who had opposed his state’s secession from the Union, Johnson seemed a devastatingly clever choice, until John Wilkes Booth shot and killed Abraham Lincoln, making Johnson the seventeenth president of the United States. Born to illiterate parents, Johnson had almost no formal education. A tailor by trade, he was taught to write and spell by his sixteen-­year-­old bride.23 Throughout his long political career, the upstart tailor seethed with populist resentment against a domineering southern planter elite, which he assailed as a “pampered, bloated, corrupted aristocracy.” His resentment of upper-­class whites, though, paled against the revulsion he felt toward all blacks. In 1844, as a member of Congress, Johnson declared his opposition to any effort to “place every splay-­footed, bandyshanked, hump-­backed, thick-­lipped, flat-­ nosed, woolly-­headed, ebon-­colored negro in the country upon an equality with the poor white man.”24 Johnson could be as belligerent and vitriolic in public as he was in private. Even when Johnson wasn’t drunk, he had none of Jackson’s self-­control. Nor did he exhibit Jackson’s profound awareness of the dignity of the presidency, as Johnson demonstrated in his infamous “Swing around the Circle,” a speaking tour in the late summer of 1866 in which he

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sought to defend his Reconstruction policy from growing criticism that it was too lenient to toward the South and did not sufficiently protect the rights of the newly emancipated slaves. One speech, in particular, delivered in Cleveland, Ohio, dramatizes the great gulf between Johnson and Jackson, indeed between Johnson and every other nineteenth-­century president. At about ten o’clock at night, Johnson appeared on a hotel balcony to address a large crowd that had gathered outside in hopes of hearing the president speak. Johnson’s mention of Ulysses Grant and Stephen Douglas brought cheers from the crowd, but the trouble began when Johnson invoked the memory of Lincoln, that “distinguished fellow-­citizen who is now no more.” When a voice cried out “unfortunately,” Johnson shot back: “Yes, unfortunate for some that God rules on high and deals in right.” The intimation that the assassination of Lincoln and the ascension of Johnson to the presidency might have been part of a divine plan riled the audience. Johnson compounded the problem by insisting that had Lincoln lived, the Republican press would have “poured out” their “vials of wrath” on Lincoln just as they were now doing to him. Johnson’s claims brought angry denials from the crowd. “Never,” shouted some. “Three cheers for the Congress of the United States,” bellowed another.25 Rather than back down or defuse the situation, Johnson waded into the fight. He challenged the crowd to name a single pledge that he had violated, one place where he had departed from the platform upon which Lincoln and he were elected. Previous crowds had roared their approval at this line but, offered a chance to name Johnson’s transgressions, Cleveland’s more antislavery citizens were only too ready to oblige: “How about New Orleans?” shouted one, a reference to the bloody events of the past summer in which thirty-­four blacks and three whites were killed by former Confederates who were trying to prevent the Radical Republicans from convening a state constitutional convention that had as its aim the enfranchisement of blacks. That was followed immediately by other voices: “Hang Jeff Davis” and then a shout of “Hang Thad Stevens and Wendell Phillips,” the former the House leader of the Radical Republicans and the latter a leading abolitionist. “Why not hang Thad Stevens and Wendell Phillips,” agreed Johnson. The situation rapidly deteriorated, as exchanges between Johnson and the crowd became ever angrier. There was hissing and hollering, and “great confusion.” “Don’t get mad, Andy,” came a cautionary shout from the crowd. But Johnson had lost his way. “I will tell you who is mad,” yelled back the president. “Whom the gods wish to destroy, they first make mad.” The performance was enough to make any observer wonder whether the president was unhinged, or perhaps only drunk. After briefly collecting himself, promising to “permit reason to resume her empire,” Johnson soon descended again into the gutters of invective. Those in

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the crowd responsible for the “discordant notes,” he charged, were just as much traitors as Davis, Phillips, and Stevens. In fact, the “hecklers  .  .  . were cowards, too” since they “remained safely at home” while brave American soldiers fought and died for their country. Johnson’s tirade brought outraged cries of “Is this dignified?” The president was undeterred: “You may talk about the dignity of the president,” he responded. “I care not for dignity.” This was too much even for the president’s staunchest supporters. In an editorial entitled “The President’s Mistake,” the New York Times, one of Johnson’s most steadfast backers, disavowed his remarks. “The President of the United States,” the Times counselled, “cannot enter upon an exchange of epithets with the brawling of a mob, without seriously compromising his official character.” Rather than deny the demagogue label, Johnson embraced it. If believing that “the great mass of the people . . . will do right” was a demagogical idea, then he was proud to call himself a demagogue. If declaring “the great truth” that “the voice of the people is the voice of God” was demagogical then he was indeed a demagogue. If only, he thundered, there “were more demagogues in our land.” The American people had never seen or heard anything like this: a president denouncing political opponents as traitors, inciting crowds to hang a leading member of Congress, insisting that he cared nothing for the dignity of his office, and embracing the appellation of demagogue. Americans in the Age of Jackson wanted their presidents to be close to the people, to mingle and talk with them, and to speak for them. But they also wanted their presidents to uphold presidential dignity and decorum. So profound were Johnson’s transgressions that when the House of Representatives drew up articles of impeachment against him, the tenth article condemned the president’s speech-­making for having “brought the high office of the President of the United States into contempt, ridicule and disgrace.” Even if the president’s “intemperate, inflammatory, and scandalous harangues” did not rise to the level of an impeachable offense, many agreed with Congress that he had shown a reckless disregard for the “the dignity and propriety” of his high office. Crucially, Johnson’s disruption of accepted norms of presidential conduct did not result in a weakening of those norms. If anything, the furious backlash against his rhetoric seemed to strengthen the old norms. Johnson’s disastrous speaking tour helped to swing the pendulum of opinion, at least for a time, in the direction of more dignified reserve on the part of presidents. The lesson was especially vivid for Ulysses Grant, who had accompanied Johnson for much of the 1866 tour and witnessed the president’s crude theatrics. Grant considered Johnson’s speeches “a national disgrace” and he thought Johnson himself “an infernal liar.”26 As president, Grant spoke publicly only when he could not avoid it and almost invariably kept his comments terse and uncontroversial for fear of appearing undignified or unduly partisan. Other nineteenth-­century presidents showed a similar caution. At the outset of his 1891 tour, Benjamin

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Harrison professed that his philosophy was that the president “should always act and speak with a reserve.” In recognition that he was being welcomed on his tour by “men of all parties,” Harrison insisted that the president not “say anything anywhere that makes a line of division.” In their vigilance to avoid divisiveness and to preserve presidential dignity, late nineteenth-­century presidents courted the opposite danger of appearing to be out of touch with the people’s interests and wants. Harrison, for instance, was dubbed the “human iceberg” and the “refrigerator” for his aloof and frosty manner. Jackson had unleashed the power of the presidency by forging a direct connection between the presidency and the people but presidents in the late nineteenth century, unable to escape the ominous shadow thrown by Andrew Johnson’s impeachment, typically shied away from populist appeals. The result was a substantially weaker presidency. A lesson of Johnson’s presidency is that not every disruption or defiance of a norm undermines or transforms that norm. Backlash may trigger a vigorous reassertion of the importance of particular norms of behavior. In retrospect, the norm-­breaker may come to be viewed more as a deplorable aberration than a trendsetter that others rushed to follow, the exception that proves the rule, not the face of the future.27

The Rooseveltian Disruption American society underwent dramatic transformations in the last decades of the nineteenth century, but public expectations of the presidency changed much more incrementally. What it meant to be presidential remained remarkably static between 1870 and 1900. Rutherford B. Hayes, Benjamin Harrison, and William McKinley were all competent chief executives, but none had a flair for the dramatic or a desire to disrupt the political order or remake the presidency. The most disruptive challenge to the political order in the late nineteenth century came from William Jennings Bryan, whose populist oratory on the stump in 1896 was like nothing the country had ever seen from a presidential candidate. His famous “Cross of Gold” speech at the Democratic National Convention mesmerized the crowd with a thunderous call to do battle against the eastern elites, “the idle holders of idle capital” who oppressed “the toilers everywhere.” To others, though, Bryan’s populist demagoguery proved that he was “the most unpresidential man ever nominated for the presidency.”28 William McKinley’s triumph over Bryan was a victory for established norms of governing. McKinley promised continuity, not disruption. Although more innovative than he is sometimes given credit for,29 the low-­key McKinley did not challenge popular conceptions of what it meant to be presidential. His dignified, no-­drama demeanor was what most people seemed to expect of a president. Nobody called McKinley unpresidential. Ironically, though, McKinley’s

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reelection in 1900—once again defeating Bryan—opened the door to a dramatic and enduring redefinition of the presidential role when six months into his second term an assassin’s bullet killed McKinley and made Vice President Theodore Roosevelt the president of the United States. Roosevelt possessed a self-­dramatizing, publicity-­seeking instinct that set him apart not only from McKinley but from all of his late nineteenth-­ century predecessors. Roosevelt adored being the center of attention. As his daughter Alice famously said, “My father always wanted to be the corpse at every funeral, the bride at every wedding and the baby at every christening.” What others saw as solemn and dignified, Roosevelt saw as colorless and drab. Unlike past presidents, who were invariably pictured as serious and staid, Roosevelt beamed for the camera, even hamming it up on occasion. He wanted to make the White House vivid for the American people, to draw their attention to him. And in this he succeeded. “The public can no more look the other way,” conceded one critic, “than the small boy can turn his head away from a circus parade.”30 Roosevelt loved the attention but he also believed that by fixing the public’s focus on himself he could exert power over a Congress that too often did the bidding of entrenched special interests at the expense of the whole people. By going “over the heads of Congress” and appealing directly to the people, he would realize the Jacksonian aspiration of making the presidency the people’s tribune. It is not difficult to see why some of Trump’s supporters, including Vice President Mike Pence, have portrayed Trump as “the 21st century Theodore Roosevelt.”31 Even some of Trump’s critics have conceded an “uncanny likeness between the two.” Both were the sons of wealthy New York families who made their way in politics as populist crusaders. Both were men of immense energy and even larger egos. Both touted “the virtues of vigor and strength. . . . Both were bellicose and blustering about American foreign policy.  .  .  . Both entered the American consciousness through new media. . . . Both were popular because supporters thought they would take on entrenched special interests.”32 And both relished taking on the establishment and donning the mantle of disrupter-­in-­chief. Certainly, Roosevelt’s unconventional behavior, like Trump’s as well as Johnson’s, loosed a stream of accusations that he was degrading the presidency. Roosevelt’s lack of deference to the established folkways of Washington stirred early complaints of “his un-­Presidential manners and style of address.” Politicians didn’t know what to make of the new president or how to control him. Republican Party leader Mark Hanna thought Roosevelt a “wild man.” Some saw him as childlike, others called him crazy. The New York World labeled him “the strangest creature the White House ever held.” Roosevelt’s norm-­busting behavior continued to vex and exasperate his critics. As one newspaper complained, “President Roosevelt has so frequently broken over

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the conventionalities which had hitherto hedged about the office of the chief magistrate that we have long since ceased to be overwhelmed with surprise at any new infraction of precedent.”33 Not since Andrew Johnson’s presidency had the nation seen norm-­breaking on this scale. But whereas Johnson’s norm-­ busting led to impeachment, disgrace, and a well-­deserved reputation as one of the nation’s worst presidents, Roosevelt’s transgressive behavior earned him a place on Mount Rushmore. Why was the fate of these two norm-­busters so dramatically different, both during their presidency and afterward? Part of the answer is that Roosevelt as president was never really the “wild man” that Hanna feared. Although political elites responded to Roosevelt and Johnson in often strikingly similar terms, the two men’s behavior as president was worlds apart. Like Jackson, Roosevelt was far more complex and multifaceted than his public image allowed. A contemporary journalist captured well Roosevelt’s “psychology of inconsistency.” Roosevelt, he observed, was “imperious in mind, but thoughtful and considerate in action, . . . bold and fearless yet circumspect and cautious.”34 A master at dramatizing a political conflict in easily understood terms, Roosevelt also labored tirelessly to command the details and complexities of public policy. That Roosevelt was a relentless and forceful advocate for his positions was evident to everyone, but he also possessed what biographer Edmund Morris described as a “gift for delicate negotiation.” While not hesitating to go over the heads of Congress, Roosevelt was a deft politician who knew how and when to bargain. Indeed, former president Grover Cleveland judged him “the most perfectly equipped and the most effective politician thus far seen in the Presidency.” As president, Roosevelt almost invariably showed a keen sense of the limits of what was attainable. As historian John Morton Blum demonstrated more than sixty years ago, President Roosevelt was always “careful . . . never to press his program beyond the limits he calculated as practicable.”35 Unlike Johnson, Roosevelt could play in different registers. He could be silent and discreet when he needed to be as well as patient and self-­effacing when the situation called for it. Roosevelt’s success in brokering peace negotiations between the Russians and the Japanese led the London Morning Post to gush that his success as a peacemaker had “amazed everybody, not because he succeeded but because of the manner by which he achieved success. He . . . displayed not only diplomatic abilities of the very highest order, but also great tact, great foresight, and finesse really extraordinary.” Roosevelt’s response to the extravagant praise—Henry Adams pronounced him the “best herder of Emperors since Napoleon”—showed that he also possessed the self-­awareness Johnson lacked. “It is enough,” he wrote his daughter, “to give anyone a sense of sardonic amusement to see the way in which people generally, not only in my own country but elsewhere gauge the work purely by the fact that it succeeded. If I had not brought about peace I should have been laughed at and

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condemned. Now I am over-­praised.”36 Roosevelt broke the presidential mold, but he was no bull in the proverbial china shop. Roosevelt’s reimagining of the presidential role as the focal point of American politics did not, of course, go unchallenged. His disruption of the nineteenth century’s system of “congressional government” was strongly resisted and sharply rebuked. “Pitchfork Ben” Tillman, a senator from South Carolina, complained that the media had “puffed” up Roosevelt “to such a degree that he ‘strides the world like a colossus, and we smaller men . . . crawl around between his legs hunting for . . . dishonorable graves or a piece of pork.’”37 Like Johnson, Roosevelt did not resemble any president Congress or the nation had encountered before, but unlike Johnson Roosevelt offered a new model of what a president should look like that captured the imagination of Americans. Among those Americans dazzled by Roosevelt’s singularly kinetic rhetorical presidency was political scientist Woodrow Wilson. As a graduate student at Johns Hopkins University during Chester Arthur’s presidency, Wilson had written a celebrated dissertation that excoriated congressional government for its fragmentation of power and division of responsibility. The presidency barely figured in the young Wilson’s thinking. The remedy that he prescribed was not a more energetic presidency, but a more cohesive, centralized Congress modeled on the British parliamentary system.38 A quarter century later, during Roosevelt’s final year in office, Wilson published Constitutional Government in the United States, a collection of lectures that distilled his new thinking about American politics and the presidency. Previously Wilson had argued that only a constitutional amendment could rescue the nation’s archaic constitutional structure. Now, under the bright lights of Roosevelt’s tenure, he argued that a popular president could carry the nation safely through the challenges of the twentieth century. Having watched Republican congressional opposition to the Hepburn Act—which strengthened federal regulation of the railroads— wilt under the hot lights of Roosevelt’s relentless publicity campaign, it now seemed to Wilson that party elites could not withstand a president able to “win the admiration and confidence of the country.” So long as the president “rightly interpret the national thought and boldly insist upon it,” Wilson wrote, his rhetoric would make him “irresistible.”39 In truth, a president is rarely irresistible, no matter how eloquent or popular he may be. Roosevelt’s practice of the rhetorical presidency was decidedly more circumspect than Wilson’s grandiose theory.40 As president, Roosevelt did not operate on the assumption that by going public he could make Congress do whatever he thought right—the hubris that led Wilson to embark on his disastrously unsuccessful speaking tour on behalf of the League of Nations treaty in the fall of 1919. Instead, President Roosevelt, who had a “lifelong obsession with balance,” strove “to find and hold the center of power,” in the belief that that “only the slightest pressure, applied by whoever stayed [in

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the middle] was necessary to tilt the opposites to and fro.”41 By positioning himself between extremes, the president maximized his influence. Roosevelt exerted the power he did—and remade the presidential mold—because he not only realized the untapped potential of the rhetorical presidency but also retained a keen sense of the limits of presidential power, an understanding that Johnson lacked.

#unpresidential Like Jackson, Roosevelt remade the presidency by making it a seat of popular leadership and the center of national attention. For redefining what it meant to be presidential, both Roosevelt and Jackson were assailed as unpresidential and undignified by self-­styled defenders of the traditional constitutional order. Jackson was deemed a barbarian, Roosevelt a “damn cowboy.” Both were seen as dangerous, “wild” men. Both were charged with destroying constitutional norms and degrading their high office and were feared as disruptive agents of populist subversion. And both have been consistently recognized by historians as among the nation’s great or at least near great presidents for their role in transforming the presidency as well as their effectiveness in advancing their political agendas.42 Trump is assailed by his critics in terms that are often strikingly similar to the attacks leveled against Roosevelt and Jackson. His behavior, like theirs, is seen as impulsive and undignified. Like Roosevelt, Trump is accused of being an unseemly braggart, and like Jackson, he is charged with coarsening American politics. Like both Jackson and Roosevelt, he is accused of being a dangerous demagogue who divided the country by whipping up popular passions for his own political advantage. All three of them were viewed by contemporary critics as the “least presidential president who has ever presidented.”43 Trump’s critics have been particularly upset at his “unpresidential” use of Twitter to endlessly abuse and belittle his critics. He has insulted the appearance, intelligence, competence, sanity, and ethics of foreign leaders (he tagged North Korea’s Kim Jong-­un “Little Rocket Man,” though he said he “would NEVER call him ‘short and fat’”), rival politicians (“Crooked Hillary” Clinton and “Sleepy Joe” Biden, among many others), political consultants (Frank Luntz was “a total clown” and “a low-­class slob”), former aides (Omarosa Manigault Newman was “a crazed, crying lowlife”), cabinet members (Rex Tillerson was “dumb as a rock” and “lazy as hell”), accusers (Stormy Daniels was “horseface”), and most of all, members of the media (Don Lemon was “the dumbest man on television,” Glenn Beck a “wacko” and “dumb as a rock,” Rich Lowry “one of the dumbest of the talking heads,” Charles Lane “a real dope,” and Mika Brzesinksi was “low I.Q Crazy Mika”).44 It seems as if almost every criticism of the president and his policies invited an ad hominem attack on Twitter.

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Even this partial list of the countless demeaning insults that Trump hurled at those who disagreed with him suggests how different he is from Jackson and Roosevelt, both of whom as presidents were generally careful not to engage in public name-­calling with their critics. The list also underscores the close analogy between Trump and Johnson. Jackson felt much the same sense of grievance about the exaggerations and falsehoods circulated by the partisan anti-­Jackson press as Trump felt regarding the so-­called “fake news” of the mainstream media, but Jackson largely let off steam in private and left the nasty and petty counterpunching to his partisan supporters. Both Jackson and Roosevelt cultivated a combative image that was central to their popular appeal, but they understood the difference between showing that they were fighting for the people and school-­yard brawling and crude epithets. Trump’s defenders would suggest that this is both Trump’s genius and his appeal: that he says in public what other presidents and politicians have only dared to say in private. Unlike past presidents, even the great ones, Trump is authentic, the genuine article, the president who tells it if not like it is, at least like he sees it. Insults that appear unpresidential when judged against past standards are in fact establishing a new standard for what it means (or should mean) to be presidential. Indeed, Trump made precisely this claim. Responding to a barrage of criticism after he had tweeted that he had seen “low I.Q. Crazy Mika  .  .  . bleeding badly from a face-­lift,” Trump tweeted, “My use of social media is not Presidential—it’s MODERN DAY PRESIDENTIAL. Make America Great Again!”45 On this telling, Trump belongs with the greats like Jackson and Roosevelt because he is among that handful of presidents who permanently redefined what it meant to be presidential. The problem with this claim is that there is little evidence that the American people believe Trump’s Twitter usage is presidential. An ABC News/Washington Post poll taken ten days after Trump’s “MODERN DAY PRESIDENTIAL” tweet found that nearly seven in ten respondents said the way Trump used Twitter was “inappropriate,” two in three thought it “insulting,” while only two in ten said it was “refreshing.” A majority declared it “dangerous.” In the same poll, 70 percent of respondents called Trump’s behavior “unpresidential,” while only one in four said it was “fitting and proper.” Furthermore, 56 percent said his conduct was damaging to the presidency, and 68 percent said they do not see him as a positive role model for young people.46 Eighteen months later, in January 2019, fewer than one in three Americans in an NBC News/Wall Street Journal poll said Trump “has the right personal characteristics to be president.”47 A year later, in February 2020, a poll by the Pew Research Center found that only 15 percent of Americans said they “like the way Donald Trump conducts himself as president”; more than half said they didn’t like the way he conducts himself as president, and about 30 percent said they had mixed feelings. Eighty percent of Americans, including almost three out of four Republicans, said the

On Being Unpresidential  65

phrase “self-­centered” described him very or fairly well, and only about a quarter of the public described him as “even-­tempered.”48 One suspects that had public opinion polling been around in 1866 Andrew Johnson’s numbers would have been similar after his ill-­fated “Swing around the Circle.” In contrast, the available evidence indicates that Jackson and Roosevelt retained strongly positive public images and high approval ratings throughout their presidencies. That strong public endorsement of their behavior as “modern-­day presidential” was crucial to Jackson and Roosevelt’s ability to transform what it meant to be presidential. The analogy between Trump and Johnson is far from exact, of course. The most salient difference is that whereas Trump, although widely distrusted and denounced by party elites during the 2016 primary contest, succeeded in remaking an acquiescent Republican Party in his own image, Johnson, while embraced as a defender of the Unionist faith during the 1864 campaign, was quickly repudiated by the party of Lincoln. Massive Republican supermajorities in both the Senate and the House enabled Congress to check Johnson at almost every turn, including impeaching him and credibly threatening him with removal from office (the Senate vote on Johnson’s impeachment famously fell only one vote short). In contrast, while Trump’s more outrageous conduct occasionally drew chastisement from some Republican members of Congress—when Trump called Stormy Daniels “horseface,” for example, Utah’s Republican congressman Chris Stewart criticized him for being “rude” and “unpresidential”—his norm-­busting behavior was frequently enabled and excused by Republicans in Congress. Congressional Republicans fear Trump—and his core supporters—far more than he fears them, whereas few members of Congress, Republican or Democrat, feared crossing the unpopular Johnson. President Trump secured the Republican nomination in 2020 with close to 95 percent of the primary vote, whereas President Johnson never received more than 20 percent of the votes in the balloting at the 1868 Democratic nominating convention. Does this profound difference between the Johnson and Trump presidencies mean that there is unlikely to be the same sort of backlash against presidential norm-­breaking and reassertion of old rhetorical norms that occurred after Johnson’s presidency? Is the hope that in the future “we will look back on this period as a presidential aberration” (as expressed by Pulitzer Prize–winning historian Jon Meacham) wishful thinking?49 Will Trump’s words and behavior, including his abusive rhetorical style and incessant attacks on the media as “the enemy of the people,” normalize conduct that previously would have been viewed as beyond the pale for a president of the United States? To ask this last question is to raise a third possible outcome, one that is analogous neither to Johnson (a backlash against a failed president, followed by shoring up the old norms) nor to Roosevelt and Jackson (norms are transformed in ways that are widely interpreted as making the presidency more

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democratic and inclusive). The alternative is that a president could undermine and transform norms in ways that make the presidency less accountable and our politics more authoritarian. Such a president, if he effected lasting change to his party, the presidency, and American politics, could not be dismissed as a failure on the model of an Andrew Johnson or a Franklin Pierce. Yet it is unlikely historians will judge a president who does lasting damage to core democratic norms to be deserving of a place among the nation’s great presidents, certainly not alongside “Abe Lincoln with the big hat.”50 The question of whether Trump’s vituperative style of communication will become the new normal, the “modern-­day presidential,” may depend in part on the willingness of political elites, particularly within Trump’s own party, to defend existing norms against transgressive conduct.51 But so far, despite a general failure among Trump’s co-­partisans to hold the president accountable for his norm violations, the evidence is that an overwhelming majority of Americans do not think that Trump’s insults and put-­downs were presidential. Polls and focus groups show that even many Trump supporters, though perhaps not the ones who attend the rallies and follow him on Twitter, doubted whether Trump’s abusive language and crude boasts are “fitting and proper” for a president of the United States. To be sure, large numbers of Republicans laud Trump’s norm-­busting behavior, but these responses may be driven more by what psychologists call motivated reasoning than by a fundamental break with public expectations of presidential conduct.52 If a need to defend their own tribe is leading partisans to rationalize conduct that they would quickly condemn in others, then a change in the party in power may be sufficient to ensure Trump’s conduct does not become the new normal. Ultimately, though, much will depend on whether Trump’s abusive communications style is seen by other political elites as effective and thus worth emulating, or counterproductive if not disqualifying.53 Reactions to Trump’s response to COVID-­19 suggests, for instance, that a president who chooses to forgo the presidential role as a unifying head of state may well forfeit a well of public support during a crisis that hobbles the president’s effectiveness. Inevitably, of course, judgments about the effectiveness of Trump’s conduct will be shaped by his defeat in the 2020 election, an election that could well have enduring consequences not only for public policy but for the very notion of what it means to be presidential.

Notes 1. “President Trump Remarks at Rally in Tampa, Florida,” C-­Span, July 31, 2018, https://​ www​.c​-­­span​.org​/video​/​?449198​-­­1​/president​-­­trump​-­­delivers​-­­remarks​-­­rally​-­­tampa​-­­florida. 2. Alana Abramson, “‘I Can Be More Presidential Than Any President.’ Read Trump’s Ohio Rally Speech,” Time, July 26, 2017, http://​time​.com​/4874161​/donald​-­­trump​-­­transcript​ -­­youngstown​-­­ohio/.

On Being Unpresidential  67 3. Of course, not every criticism of supposedly unpresidential behavior enforces an important political norm. One thinks, for instance, of the brief partisan flap at the beginning of the Obama administration after former Bush chief of staff Andrew Card complained about photographs showing the new president working at his Oval Office desk sans suit jacket. Even worse, some aides were allegedly working in short sleeves or loosened collars, thereby turning the White House into “a kind of locker room experience.” Card fretted that the casual dress code among Obama and his aides was a grievous affront to the dignity of the presidency. Most Americans, though, dismissed Card’s insistence that the absence of a jacket or tie was unpresidential. Indeed, a Fox News poll found that only a quarter of Americans agreed with Card that a coat and tie should be required attire in the White House. See Dan Eggen, “Bush Team Gives Obama a Dressing Down,” Atlanta Constitution, February 8, 2009, A4; Matt Corley, “Majority of Americans Disagree with Andrew Card: Jacket and Tie Not Necessary in Oval Office,” Think Progress, February 19, 2009, https://​thinkprogress​.org​ /majority​-­­of​-­­americans​-­­disagree​-­­w ith​-­­andrew​-­­card​-­­jacket​-­­and​-­­tie​-­­not​-­­necessary​-­­in​-­­oval​ -­­office​-­­e170e021d4cd/. The Daily Show with Trevor Noah recently (February 5, 2019) poked fun at this episode in a segment on “Worst Scandals in Presidential History: Obama’s Jacketgate,” https://​www​.youtube​.com​/watch​?v​=​QVsUa​-­­lQ2WY. 4. Stephen Skowronek, The Politics Presidents Make: Leadership from John Adams to George Bush (Cambridge, Mass.: Belknap Press, 1993); Stephen Skowronek, “Is Donald Trump the Great Disruptor: Probably Not,” Washington Post, April 24, 2017. 5. Kathleen Bartoloni-­Tuazon, For Fear of an Elective King: George Washington and the Presidential Title Controversy of 1789 (Ithaca, N.Y.: Cornell University Press, 2014), esp. chap. 4 (quotations at 78–79, 81). 6. This paragraph and the subsequent one are adapted from Richard J. Ellis, The Development of the American Presidency, 3rd ed. (New York: Routledge, 2018), 26. Also see Stanley Elkins and Eric McKitrick, The Age of Federalism: The Early American Republic, 1788–1800 (New York: Oxford University Press, 1993), 49; and Richard J. Ellis, Presidential Travel: The Journey from George Washington to George W. Bush (Lawrence: University Press of Kansas Press, 2008), 22. 7. Editorial note, first inaugural address, in The Papers of Thomas Jefferson, February to April 1801, ed. Barbara Oberg (Princeton, N.J.: Princeton University Press, 2006), 33:134; Dumas Malone, Jefferson the President: First Term, 1801–1805 (Boston: Little, Brown, 1970), 93; Robert  M. Johnstone, Jefferson and the Presidency: Leadership in the Young Republic (Ithaca, N.Y.: Cornell University Press, 1978), 58–59. Also see Richard J. Ellis and Aaron Wildavsky, Dilemmas of Presidential Leadership: From Washington through Lincoln (New Brunswick, NJ: Transaction, 1989), 70. 8. Ralph Ketcham, Presidents above Party: The First American Presidency, 1789–1829 (Chapel Hill: University of North Carolina Press, 1984). 9. M. J. Heale, The Presidential Quest: Candidates and Images in American Political Culture, 1787–1852 (London: Longman, 1982); Gil Troy, See How They Ran: The Changing Role of the Presidential Candidate (New York: Free Press, 1991). 10. Jeffrey K. Tulis, The Rhetorical Presidency (Princeton, N.J.: Princeton University Press, 1987). 11. H. W. Brands, Andrew Jackson: His Life and Times (New York: Doubleday, 2005), 408. 12. Ibid., 412. On the exaggerations of the traditional accounts of Jackson’s post-­inaugural reception and its power as a metaphor, see Scott Bomboy, “The Story of the Wildest Party in White House History,” March 4, 2013, National Constitution History, https://​ constitutioncenter​.org​/blog​/the​-­­story​-­­of​-­­the​-­­wildest​-­­party​-­­in​-­­white​-­­house​-­­history​/.

68  Ric h a rd J. Ellis 13. John William Ward, Andrew Jackson: Symbol for an Age (New York: Oxford University Press, 1955), 55–56. 14. Ellis, Development of the American Presidency, 95. Also see Richard J. Ellis and Stephen Kirk, “Presidential Mandates in the Nineteenth Century: Conceptual Change and Institutional Development,” Studies in American Political Development 9 (Spring 1995): 117–86. 15. Seth Cotlar and Richard J. Ellis, eds., Historian in Chief: How Presidents Interpret the Past to Shape the Future (Charlottesville: University of Virginia Press, 2019), 1, 10. Also see Susan B. Glasser, “The Man Who Put Andrew Jackson in Trump’s Oval Office,” Politico Magazine, January 22, 2018, https://​www​.politico​.com​/magazine​/story​/2018​/01​/22​/andrew​ -­­jackson​-­­donald​-­­trump​-­­216493. 16. Adams’s remark was in reaction to Harvard University’s decision in 1833 to award Jackson an honorary law degree, which was part of New England’s warming toward Jackson in the wake of his strong stance against Nullification that winter. The comment can be found in Adams’s diary entry of June 18, 1833. The Diaries of John Adams: A Digital Collection, 39:98, Massachusetts Historical Society, https://​www​.masshist​.org​/jqadiaries​/php/. 17. Ellis, Presidential Travel, 51–52. 18. Apart from the first week of the presidency, when FiveThirtyEight’s polling average pegged his job approval rating at 48 percent, Trump scored below 46 percent in FiveThirty­ Eight’s polling average throughout the first three and a half years of his presidency. As of July 2020, his median approval rating remained mired in the low 40s, lower than every president since World War II except Harry Truman. See Geoffrey Skelley, “Trump’s Approval Rating Is Incredibly Steady? Is That Weird or the New Normal?” FiveThirtyEight, March 28, 2019, https://​fivethirtyeight​.com​/features​/trumps​-­­approval​-­­rating​-­­is​-­­incredibly​-­­steady​-­­is​-­­that​ -­­weird​-­­or​-­­the​-­­new​-­­normal/. 19. H. W. Brands, “Trump as the New Andrew Jackson? Not on Old Hickory’s Life,” Politico Magazine, January 29, 2017, http://​www​.politico​.com​/magazine​/story​/2017​/01​/andrew​ -­­jackson​-­­donald​-­­trump​-­­populist​-­­president​-­­history​-­­214705. Steve Inskeep, “Donald Trump’s Secret? Channeling Andrew Jackson,” New York Times, February 17, 2016. 20. See, for example, the observations of British writer Harriet Martineau, who after dinner with Jackson remarked on the president’s “expression of melancholy gravity,” his “slow and quiet” speech, and his “mildness and kindness” (Retrospect of Western Travel, ed. Daniel Feller [London: M. E. Sharpe, 2000], 53). Also see the snobbish Fanny Trollope’s assessment of Jackson as “a gentleman” (Domestic Manners of the Americans, ed. Pamela Neville-­Sington [New York: Penguin, 1997], 109–110); and Washington Irving’s description of Jackson as “one of the truest old caballeros I have ever known” (Brands, Andrew Jackson, 236). Also see Mark Cheathem, “Andrew Jackson: Symbol of a Southern Age,” History New Network, December 2, 2013, https://​historynewsnetwork​.org​/article​/154093; and Jon Meacham, American Lion: Andrew Jackson in the White House (New York: Random House, 2009), 39–40. 21. Brands, Andrew Jackson, esp. 236, 238, 246 (quotations at 212, 238). 22. Kenneth M. Stampp, The Era of Reconstruction, 1865–1877 (New York: Vintage Books, 1967), chap. 3. 23. Elizabeth  R. Varon, “Andrew Johnson: Life before the Presidency,” https://​ millercenter​.org​/president​/johnson​/life​-­­before​-­­the​-­­presidency 24. Richard Brookhiser, “The Andrew Brothers: The Original Populist Presidents,” American History Magazine, August 2017, https://​www​.historynet​.com​/andrew​-­­brothers​ -­­original​-­­populist​-­­presidents​.htm. Hans  L. Trefousse, Andrew Johnson: A Biography (New York: Norton, 1989), 58. 25. This and the subsequent paragraphs in this section are adapted from Ellis, Development of the American Presidency, 101–3. On Johnson’s “Swing around the Circle,” also see

On Being Unpresidential  69 Ellis, Presidential Travel, 82–97; Eric L. McKitrick, Andrew Johnson and Reconstruction (Chicago: University of Chicago Press, 1960), 428–38; and Tulis, Rhetorical Presidency. 26. Brooks D. Simpson, Let Us Have Peace: Ulysses S. Grant and the Politics of War and Reconstruction, 1861–1868 (Chapel Hill: University of North Carolina Press, 1991), 244. David O. Stewart, Impeached: The Trial of President Andrew Johnson and the Fight for Lincoln’s Legacy (New York: Simon & Schuster, 2009), 69. 27. Brian Klaas, “Looking Back at Andrew Johnson—the President Most Like Trump,” Washington Post, July 9, 2018. On Johnson as “the exception that proves the rule,” see Tulis, Rhetorical Presidency. Also see Keith E. Whittington, “Trump’s Rhetoric is Offensive, But Is It an Impeachable Offense? The Similarities between Andrew Johnson and Donald Trump,” Vox, August 4, 2017, https://​www​.vox​.com​/mischiefs​-­­of​-­­faction​/2017​/8​/4​/16093946​/trump ​-­­andrew​-­­johnson​-­­rhetoric​-­­offensive. 28. “Not of Presidential Size,” Sioux City Journal, October 9, 1896. 29. Lewis L. Gould, The Modern American Presidency (Lawrence: University Press of Kansas, 2003). Stephen Ponder, “The President Makes News: William McKinley and the First Presidential Press Corps, 1897–1901,” Presidential Studies Quarterly 24 (Fall 1994): 823–36. Also see Kevin Phillips, William McKinley (New York: Times Books, 2014); Karl Rove, The Triumph of William McKinley: Why the Election of 1896 Still Matters (New York: Simon & Schuster, 2015); and Robert W. Merry, President McKinley: Architect of the American Century (New York: Simon & Schuster, 2017). 30. Quoted in Doris Kearns Goodwin, The Bully Pulpit: Theodore Roosevelt, William Howard Taft, and the Golden Age of Journalism (New York: Simon & Schuster, 2013), 284. 31. Theodore Roosevelt Malloch, “Why I Support Donald Trump: He’s the New Roosevelt,” Forbes, December 15, 2015, https://​www​.forbes​.com​/sites​/realspin​/2015​/12​/15​ /donald​-­­trump​-­­teddy​-­­roosevelt​/​#4a69cc8a6618. Philip Rucker, “Pence Likens Trump to One of His Heroes: Teddy Roosevelt,” Washington Post, August 17, 2017. 32. James  W. Ingram III, “How Donald Trump Compares to Teddy Roosevelt,” San Diego Union-­Tribune, February 24, 2016, https://​www​.sandiegouniontribune​.com​/opinion​ /commentary​/sdut​-­­trump​-­­president​-­­roosevelt​-­­2016feb24​-­­story​.html. Also see Evan Fazio, “Is Trump the New Teddy Roosevelt?” Chicago Tribune, February 7, 2017, https://​www​.chicago tribune​.com​/news​/opinion​/commentary​/ct​-­­teddy​-­­roosevelt​-­­trump​-­­comparison​-­­perspec​ -­­0208​-­­md​-­­20170207​-­­story​.html. 33. Charlotte News, June 26 1902. Goodwin, The Bully Pulpit, 292. Kathleen Dalton, Theodore Roosevelt: A Strenuous Life (New York: Random House, 2002), 214. Arizona Republic, April 3, 1907. 34. Edmund Morris, Theodore Rex (New York: Random House, 2008), 220. 35. Morris, Theodore Rex, 422, 83. John Morton Blum, The Republican Roosevelt (1954; rpt. New York: Atheneum, 1963), 74. 36. Morris, Theodore Rex, 391, 414–15. 37. Quoted in ibid., 430. 38. Woodrow Wilson, Congressional Government: A Study in American Politics (Boston: Houghton Mifflin, 1885). 39. Woodrow Wilson, Constitutional Government in the United States (New York: Columbia University Press, 1908), 68–69. 40. Also see the contrast between Roosevelt’s and Wilson’s rhetorical leadership in Tulis, Rhetorical Presidency, chaps. 4–6. 41. Morris, Theodore Rex, 383, 476–77. 42. In Arthur M. Schlesinger’s 1948 greatness poll Jackson was rated “great” and Theodore Roosevelt “near great; in 1962 Schlesinger’s poll of historians rated both Jackson and

70  Ric h a rd J. Ellis Roosevelt as “near great” (numbers 6 and 7 respectively), as did Murray and Blessing’s 1982 survey (7 and 5 respectively). The Ridings-­McIver 1996 presidential poll put them in the same “near great” range (Roosevelt sat 5, Jackson 8), as did a 2000 Wall Street Journal survey, which placed Roosevelt fifth and Jackson sixth. See Robert K. Murray and Tim H. Blessing, Greatness in the White House: Rating the Presidents, Washington through Carter (University Park: Pennsylvania State University Press, 1988), 16–17; William J. Ridings Jr. and Stuart B. McIver, Rating the Presidents, rev. ed. (New York: Citadel Press, 2000); and James Taranto and Leonard Leo, eds., Presidential Leadership: Rating the Best and Worst in the White House (New York: Wall Street Journal Books, 2004). In recent years, Jackson has been substantially downgraded in the greatness rankings, largely because of disapproval of his leading role in the extermination of Native Americans as well as his strongly proslavery policies. In the 2017 C-­Span survey of presidential historians, for instance, Jackson fell to eighteenth overall, although he was still ranked seventh in “public persuasion.” He ranked thirty-­eighth in the new category of “pursued equal justice for all.” Theodore Roosevelt ranked fourth overall, behind only the Big Three of Lincoln, Washington, and FDR, and second in public persuasion behind only FDR. Andrew Johnson, in contrast, was forty-­second overall as well in “public persuasion,” ahead only of James Buchanan. See https://​www​.c​-­­span​.org​/president survey2017/. 43. Chris Cillizza, “9 Totally Unpresidential Things Donald Trump Tweeted over Presidents Day Weekend,” CNN, February 19, 2018, https://​www​.cnn​.com​/2018​/02​/19​/politics​ /trump​-­­tweets​-­­presidents​-­­day​/index​.html. 44. Jasmine C. Lee and Kevin Quealy, “The 551 People, Places and Things Donald Trump Has Insulted on Twitter: A Complete List,” New York Times, updated December 28, 2018, https://​www​.nytimes​.com​/interactive​/2016​/01​/28​/upshot​/donald​-­­trump​-­­twitter​-­­insults​ .html. 45. The Trump tweets about Brzezinski were typed at 5 a.m. on June 29, 2017, and the “MODERN DAY PRESIDENTIAL” tweet was sent out thirty-­six hours later, on the afternoon of June 1. 46. Gary Langer, “Public to Trump: Lay Off the Twitter,” ABC News, July 17, 2017, https://​ abcnews​.go​.com​/Politics​/public​-­­trump​-­­lay​-­­off​-­­twitter​-­­poll​/story​?id​=​48641500. 47. Mark Murray, “‘Wrong Track’: Public Sours on Nation’s Direction after Shutdown,” NBC News, January 27, 2019, https://​www​.nbcnews​.com​/politics​/meet​-­­the​-­­press​/wrong​ -­­track​-­­public​-­­sours​-­­nation​-­­s​-­­direction​-­­after​-­­shutdown​-­­n963051. 48. “Few Americans Express Positive Views of Trump’s Conduct in Office,” Pew Research Center, March 5, 2020, https://​www​.people​-­­press​.org​/2020​/03​/05​/few​-­­americans​-­­express​ -­­positive​-­­views​-­­of​-­­trumps​-­­conduct​-­­in​-­­office/. Of course, Republicans were more supportive of Trump’s conduct than Democrats, but even among Republicans only 31 percent said they liked his conduct (50 percent had mixed feelings). That number, though, was significantly greater among Republicans over sixty-­five (nearly four in ten of whom said they liked Trump’s conduct) than among Republicans under thirty (only about one in four of whom liked Trump’s conduct), which perhaps should caution us against assuming that Trump is ushering in new norms of conduct. 49. Quoted in Klaas, “Looking Back at Andrew Johnson.” 50. “President Trump Remarks at Rally in Tampa, Florida.” 51. The crucial importance of political elites in defending democratic norms against demagogic or authoritarian leaders is underscored in Steven Levitsky and Daniel Ziblatt’s indispensable book, How Democracies Die (New York: Crown, 2018). 52. See Marc Hetherington and Jonathan Weiler, Prius or Pickup? How the Answers to Four Simple Questions Explain America’s Great Divide (Boston: Houghton Mifflin Harcourt,

On Being Unpresidential  71 2018), 134–40; and Jonathan Haidt, The Righteous Mind: Why Good People Are Divided by Politics and Religion (New York: Vintage, 2013). 53. Also relevant is political scientist Bruce Miroff ’s observation that new presidents often define their presidencies in opposition to their immediate predecessor. As Miroff explains, “The presidential qualities most likely to be magnified will be those that contrast dramatically with the attributes that drew criticism to the previous president.” Ronald Reagan, for instance, “following a president [Carter] perceived as weak, was featured in spectacles that highlighted his potency.” Following Miroff ’s logic, Trump’s successor seems more likely to define his political identity in opposition to Trump’s norm-­violating conduct than to emulate the Trumpian spectacle. Bruce Miroff, Presidents on Political Ground: Leaders in Action and What They Face (Lawrence: University Press of Kansas, 2016), 15.

THE PEOPLE, THE PRESIDENT, AND THE CONGRESS AT A CROSSROADS Can We Turn Back from Gridlock? J E N N I F E R   L . L AW L E S S A N D S E A N   M . T H E R I A U LT

When Donald Trump, the well-­known real estate tycoon and reality television star, announced his candidacy for president on June 16, 2015, almost no one took him seriously. He had always been regarded as a master self-­promoter, so the campaign was initially perceived as a vanity exercise, a gambit to promote his business interests and the Trump brand. After all, he had no political experience, and he spoke in a simple, blunt way that might attract attention but was certainly not presidential. As a sign that his style wouldn’t change, in his campaign launch speech, Trump noted that he was “really rich”; characterized Mexican immigrants as “bringing drugs, . . . bringing crime,” and as “rapists”; told the audience that he would be “the greatest jobs president God ever created”; and bragged that he “beats China all the time.”1 Beyond the absence of experience and abundance of rhetorical bluster, one of the main reasons Trump was dismissed at the outset was his long, public record of crude and sexist statements. In 1999, Trump wrote off any ambition ever to run for president one day because even he didn’t think he could survive his past. “Can you imagine how controversial I’d be?” he asked Chris Matthews, the host of MSNBC’s Hardball. “How about me with the women? Can you imagine?”2 His three marriages and highly publicized extramarital affairs were regular fodder for the New York tabloids. He routinely appeared on Howard Stern’s bawdy radio program, where he commented that “a person who is very flat-­chested is very hard to be a 10”; described his second wife, Marla Maples, as “nice tits, no brains”; and said it was okay to refer to his daughter Ivanka as a “piece of ass.”3 Even though Trump surprised political elites by capturing the 2016 Republican nomination, the idea that he would be president seemed to come to an end a month before Election Day, when NBC released unaired Access Hollywood 72

The People, the President, and the Congress  73

footage from 2005. Speaking off-­camera, Trump bragged cavalierly to the show’s host about grabbing and kissing women whenever and wherever he feels like it. After the tape aired, more than ten women came forward as victims of Trump’s unwanted sexual advances. Trump apologized for the “locker room talk,” but emphatically denied touching anyone.4 Fellow Republicans’ rebuke was swift, pervasive, and harsh. The candidate’s wife called the comments “unacceptable.”5 His running mate said they were offensive and indefensible. GOP members of Congress condemned what they heard on the tapes as “crude,” “disgusting,” “demeaning,” and “appalling.” Then-­ Speaker of the House Paul Ryan claimed to be “sickened” by what he heard. Senate Majority Leader Mitch McConnell added, “These comments are repugnant, and unacceptable in any circumstance.” Calls for Trump to step down as the party’s nominee for president reverberated in the halls of Congress, in corporate boardrooms, and on media sets throughout the country. The public seemed to feel the same way. Hillary Clinton’s lead in the polls grew from 2 points to 7 points over the course of the next two weeks.6 And then Trump won the election. Numerous accounts—from political scientists, journalists, and pundits—shed light on why.7 What’s important for our purposes is not why Trump won, but what his victory meant for governing. For several reasons, the chattering class speculated that his victory might, ironically, break the party polarization that had paralyzed the federal government for nearly two decades. First, because many “establishment” Republicans had either distanced themselves from Trump or cut him off entirely, some thought that opposition to the new White House might help unify Congress. Second, Trump’s background suggested that his style was more transactional than ideological.8 After all, he had literally written a book entitled The Art of the Deal. Sure, much of the Republican leadership rallied to Trump’s cause once he was in the winner’s box. But Trump certainly wasn’t beholden to them. Beyond that, his iconoclastic leadership style might provide a more productive path forward. Even Trump’s inaugural address was outside the bounds of normal political discourse. Although the ceremonial trappings followed tradition, the tone of the speech did not. Optimism, which typically pervades all aspects of Inauguration Day, was replaced with gloom and doom. So different was Trump’s speech from the norm that George W. Bush remarked, “That was some weird shit.”9 The bizarre set of circumstances surrounding Trump’s campaign, election, and transition to power positioned him as a complete wild card. Indeed, the American public, the Congress, and its president were at a crossroads—polarization could be mitigated, sustained, or exacerbated. This chapter considers what Trump, the American people, and Congress did at this particular intersection of his election and the first few years of the Trump presidency. It turns out that Trump didn’t trump party polarization in either the electorate or the

74  Jennifer L . L aw less a nd Se a n M . Theri ault

Congress. But from both a behavioral and an institutional perspective, he didn’t make things worse, either.

Donald Trump and the Political Parties in the Electorate Heading into Election Day 2016, pundits and pollsters weren’t sure what to expect. Dozens of high-­profile Republicans had made clear that under no circumstances would they support Donald Trump.10 The “Never Trump” movement was afoot among members of Congress, conservative journalists, and notable former elected officials. Both presidents Bush, as well as governors George Pataki (NY), Mitt Romney (MA), Tom Ridge (PA), and Christie Todd Whitman (NJ), even skipped the Republican convention. Several Republican mega-­donors, actors, and political commentators voiced their opposition to a Trump presidency. Yet at the same time, Hillary Clinton was the most disliked and untrusted Democratic presidential candidate ever to garner her party’s nomination.11 Bernie Sanders, Clinton’s rival in the Democratic primary, endorsed her in as lukewarm a way as possible—hardly mentioning Clinton by name in his endorsement speech and offering only a handshake instead of a hug when he concluded his remarks.12 White, working-­class Democrats consistently expressed doubt about Clinton’s economic plans.13 And among likely voters, enthusiasm for Clinton was significantly lower than it had been for Barack Obama in 2008 and 2012.14 “Instead of the usual tussle to obtain the votes of people who had a broadly favorable impression of both candidates,” explained Vox reporter Matthew Yglesias, “Trump and Clinton were in a slug-­ fest where the pivotal voters disliked both of them.”15 If ever there was an election that created an incentive for voters to cross party lines, 2016 seemed like it was the one. At first glance, the election results suggest that’s what happened. Donald Trump did, in fact, reshape the electoral map. He won Wisconsin, which had not voted for a Republican presidential candidate since Ronald Reagan in 1984. He won Michigan, something a Republican hadn’t managed to do since George H. W. Bush defeated Michael Dukakis there in 1988. And he even eked out a victory in Pennsylvania, making Trump the first Republican presidential candidate to pull that off in a quarter of a century.16 Clinton received roughly 3.2 million more votes nationwide, but Trump’s victory in the Electoral College was substantial (304 to 227).17 It would be a mistake, however, to conclude that the election results represent much other than business as usual. Citizens tend to see the world through a partisan lens, so whether they’re Democrats or Republicans exerts substantial

The People, the President, and the Congress  75

Table 1. Presidential vote choice by party affiliation, 1980–2016

1980 1984 1988 1992 1996 2000 2004 2008 2012 2016

Percent voting for Democratic candidate Democrats Republicans 69  8 79  4 85  7 82  7 90 10 89  7 93  5 93  7 95  3 89  8

Percent voting for Republican candidate Democrats Republicans 26 86 21 96 15 93  8 77  6 85 10 92  7 95  7 93  5 97  8 88

Note: Percentages of support by each party’s voters do not always sum to 100% because of third party candidates, particularly in 1992.

influence over how they evaluate candidates and cast ballots.18 By Election Day, most voters support their party’s candidates. Table 1 makes this clear. The left side reports the percentage of Democrats and Republicans who voted for the Democratic presidential candidate dating back to the 1980 election between Ronald Reagan and Jimmy Carter. The right side of the table displays the same information for the Republican candidate. On average, in these ten contests 86 percent of Democrats voted for the Democratic presidential nominee, and 90 percent of Republicans voted for the Republican. Even in 1984, when Walter Mondale won just his home state of Minnesota, eight out of every ten Democrats nationwide still chose him over Reagan. In 1992, when George H. W. Bush faced two competitors in the general election—Democrat Bill Clinton and independent Ross Perot (who received 19 percent of the popular vote)—he still received the support of almost eight of ten Republicans. And in the most recent election, when both Hillary Clinton and Donald Trump shared the honor of receiving the most unfavorable ratings of any presidential candidates in modern history, they still received almost 90 percent of their respective party’s votes. According to exit polls, two-­thirds of voters agreed that Trump did not have the temperament to be president. Seventy percent were bothered by his treatment of women. Yet nearly a third of those voters still pulled the lever for him, presumably because they were Republicans.

76  Jennifer L . L aw less a nd Se a n M . Theri ault

Figure 1. In-party approval ratings at the 500-day mark of each presidency, Truman

through Trump

Note: Bars represent the percentage of in-party respondents who reported that they approve of the way each president was handling his job. Source: “Trump Rakes in Party Approval at 500 Day Mark,” Axios, June 3, 2018, https://​www​ .axios​.com​/trump​-rakes​-in​-party​-approval​-at​-500​-da​-1528033342​-a9a1cdf2​-e25f​-4af8​-b282​ -2a011d081369​.html (accessed March 24, 2019).

Voters’ party allegiance followed Donald Trump into the White House. Except in rather unusual circumstances, presidents can rely on their fellow partisans to “approve” of their performance in office. And that was certainly the case for Trump. At the 500-­day mark of his administration, nearly nine out of ten Republicans approved of the job Trump was doing (see figure 1). Compared to all presidents dating back to Harry Truman, only George W. Bush—in the months following the terrorist attacks of September 11, 2001—outperformed Trump among co-­partisans a year and a half into the presidency. The story is much the same when we consider out-­party approval ratings. At the end of Barack Obama’s second term, 89 percent of Democrats supported him. Democrats’ support for the president nose-­dived to 8 percent when Trump moved into the Oval Office. Also important is a comparison of the magnitude of the partisan favorability gap. If Trump changed politics in any way, then Democrats and Republicans should have been less divided in their approval or disapproval of him than of other recent presidents. Figure 2, which tracks the absolute difference in Democratic and Republican approval for presidents starting with Bill Clinton’s first term, offers no evidence for this claim. At the beginning of Clinton’s first term in office, the partisan favorability gap was 45 points (63 percent of

The People, the President, and the Congress  77

Figure 2. Partisan favorability gap in presidential approval ratings Notes: Data are from Gallup. The line tracks the absolute difference in presidential approval between Democrats and Republicans.

Democrats, compared to 18 percent of Republicans, approved of the job he was doing). The gap was even bigger when George W. Bush (67 points) and Barack Obama (65 points) took the reins of power. During the first month of Trump’s presidency, the gap widened even more—to 75 points. A year into his term, the partisan favorability gap had increased to 82 points. While the partisan gap during the Trump presidency is the greatest ever recorded, it’s perfectly consistent with the trend that has been in place for more than a quarter of a century. Because the policies Donald Trump pursued as president are consistent with traditional GOP positions—from judicial appointments to deregulation to tax breaks—Republicans approved of the job he was doing and Democrats opposed it. Even when he took positions in opposition to Republican orthodoxy, his co-­partisans followed suit. In July 2016, for example, roughly 85 percent of Democrats and Republicans had an unfavorable view of Russian leader Vladimir Putin. When Trump took center stage as the GOP nominee and complimented Putin’s leadership, Republicans changed their tune. By December 2016, Republicans’ favorability toward Putin was three times that of Democrats (37 percent compared to 12 percent). A year into the Trump presidency, 61 percent of Democrats considered Russia a major national security risk, but only 36 percent of Republicans did.19 A similar party shift is evident when it comes to free trade.20 Put simply, Trump did nothing to change the way partisans get in line behind their president. As a consequence, there’s little to suggest that he altered the public opinion that contribute to partisan gridlock.

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President Trump and the Political Parties in Congress Just because the American public reacted to Trump in a typically partisan way did not guarantee that members of Congress would do the same. As we mentioned earlier, many Republican members of Congress kept candidate Trump at arm’s-­length, and Democratic members expressed an unprecedented amount of disgust toward him. How the president would navigate these circumstances once he took office and how they would affect his legislative program were open questions. Suffice it to say, as Trump took the oath of office, his relationship with Congress was at a crossroads. The crossroads metaphor suggests three viable paths: 1. Steady polarization: The relationship could continue down the same road it

had been going. Republican members would fall in line because they were now electorally tied to Trump. His success would be their success and his failure their failure. Democrats would oppose him every step of the way just as the Republicans had opposed Obama. 2. Ramped-­up polarization: Democratic distaste for Trump as a person, his questionable campaign tactics, several of his cabinet nominees, his inflammatory tweets, and his loss in the popular vote could exacerbate Democratic opposition toward him. Republicans would recoil against the Democrats’ strategy and dig in their heels in support of Trump, the new captain of GOP ship. 3. Reduced polarization: Because Trump wasn’t particularly ideological, held some positions that were against Republican orthodoxy, and won in some places that were traditionally Democratic strongholds, he might provide a path out of the paralysis plaguing Congress. Furthermore, Congress’s record disapproval ratings—largely a result of the public’s perception of Washington’s inability to get anything done—could provide additional incentives for both parties to hit the reset button and work together and with the White House. To assess how Trump affected party polarization in Congress, we begin with an analysis of Congressional Quarterly (CQ)’s presidential support scores, which are the percentage of votes that members cast in accord with the president’s publicly stated positions. In the 115th Congress (2017–18), for example, seven Republicans senators scored 100; they supported Trump on every single vote where he publicly stated a position. Of all the non-­Republicans, Bernie Sanders (an independent) had the lowest score, voting with Trump just 15 percent of the time. Our focus is on the difference between the average scores of congressional Republicans and Democrats (including for this purpose, Sanders and another

The People, the President, and the Congress  79

Figure 3. Partisan difference in average presidential support scores, 93rd to 115th

Congresses

Notes: Data are from Congressional Quarterly. The line tracks the absolute difference in presidential support scores between Democrats and Republicans.

independent, Angus King) dating back to 1973 (the 93rd Congress)—the year scholars find that the current period of party polarization began.21 If the difference in scores increased at a higher rate under Trump, that would be evidence of ramped-­up polarization. If they increased at slower rate, that would suggest that Trump brought the parties closer together. Figure 3 plots the difference in presidential support scores between the Republicans and Democrats for both the House and the Senate. In the early 1970s, the difference was around 20 percentage points in both chambers. Over time, the difference rose dramatically. By the last two congresses of the Obama administration, the differences exceeded 70 points in the House (solid line) and 50 points in the Senate (dashed line). Data from the first two years of the Trump administration suggest more of the same. Republicans in both the House and Senate were more loyal to President Trump than they were to any other Republican president since at least World War II. Indeed, although Susan Collins was the Republican senator with the lowest score, it was hardly “low”—she supported Trump 94 percent of the time. House Democrats were only less supportive of President George W. Bush in his last two years in office than they were of Trump. Moreover, the differences between the parties in their support of Trump broke the post–World War II record in the Senate, and was the third highest in the House (only eclipsed by the two congresses of Obama’s second term). A second way to analyze shifts in polarization—or the lack thereof—is with party unity scores. CQ calculates these based on how often a member of

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Figure 4. Party unity scores for Republicans and Democrats in Congress, 93rd to 115th

Congresses

Notes: Data are from Congressional Quarterly. The line tracks the average party unity score for both parties in both chambers.

Congress sides with his or her party on votes where a majority of Democrats and Republicans oppose one another. In the 115th Congress, six Democrats— including Elizabeth Warren, Cory Booker, Kirsten Gillibrand, and Bernie Sanders, all of whom became candidates for president in 2020—voted with their party on every single vote in which a majority of Democrats voted against a majority of Republicans. No Republican sided with his or her party 100 percent of the time. But nine voted against their party just once. As with presidential support scores, party unity scores have increased in both chambers over time. In the early 1970s, both parties in both chambers had scores in the 60s. During the Obama administration, scores rose to the high 80s and low 90s (see figure 4). And during the first two years of the Trump presidency, the scores were of a similar magnitude. Senate Republicans were more unified than they had been since CQ started calculating party unity scores in the 1950s; House Republicans were only more unified in the last congress under President Obama (and then only by 1 percentage point).22 Democrats remained highly unified as well. But none of this unity was out of the ordinary. In fact, it is perfectly in line with how the parties had been acting since at least the 1970s. Finally, we examine shifts in party polarization as measured by DW-­ NOMINATE scores, which take into consideration almost every vote that members in every Congress have ever cast (see figure 5). The scores are based on an algorithm that essentially arrays members on a continuum from -­1 (most liberal) to +1 (most conservative). In the Senate in the 115th Congress, for

The People, the President, and the Congress  81

Figure 5. Partisan differences DW-NOMINATE scores, 93rd to 115th Congresses Notes: Data are from DW-NOMINATE (https://voteview.com/data; accessed March 26, 2019). The line tracks the absolute difference between the Democratic and Republican averages in each chamber.

example, Democrat Elizabeth Warren was at one end (-­0.760) and Republican Mike Lee was at the other (+0.919). The remaining ninety-­eight senators were aligned along the continuum according to how often they voted with the senator at each endpoint. Democrats’ scores typically—and increasingly over time—fall between -­1 and 0. Republicans’ scores normally range from 0 to +1. As with the presidential support scores, we examine the average difference between the Republicans and Democrats. The trend is consistent with what we’ve seen thus far. Differences between the congressional parties of roughly 0.60 in the early 1970s have increased markedly over time to as high as 0.81 in the Senate and 0.90 in the House. Data from the 115th Congress is perfectly in line with the overall pattern. President Trump’s administration merely continued the long-­term trend of party polarization in Congress. These three data sets provide clear evidence that the Trump presidency has not systematically altered partisan polarization in Congress. Consider the entries in table 2, which summarizes the data we have presented. For each measure, entries in the “Prediction” column represent what we would expect in the 115th Congress if the pre-­115th Congress trends continued. The “Reality” column entries show the actual observed values for the 115th Congress. The “Difference” represents how reality differed from expectations based on the pre-­115th Congress trends. Differences with negative values indicate that the parties were less polarized than expected; positive numbers indicate more polarization than anticipated.

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Table 2. Party polarization predictions versus reality, 115th Congress Prediction Reality Difference Difference in presidential support scores, House 71.0 67.5 –3.5 Difference in presidential support scores, Senate 47.3 56.0  9.3 Party unity (House Republicans) 96.0 91.5 –4.5 Party unity (House Democrats) 93.7 91.0 –2.7 Party unity (Senate Republicans) 93.0 94.5  1.5 Party unity (Senate Democrats) 96.6 89.5 –7.1 Difference in DW-NOMINATE (House) 0.898 0.882 –0.016 Difference in DW-NOMINATE (Senate) 0.761 0.825 0.064

Overall, there is no clear pattern. On three measures, polarization was greater than expected. But in five instances, it was less. The summary statistics hardly provide evidence of any systematic change associated with a Trump presidency. For the last decade, a substantial body of work—some scholarly, some popular— has lamented the dysfunction that now characterizes Washington, D.C.23 And political scientists have offered nuanced accounts of the causes and consequences of a political system mired in legislative gridlock, policy stalemates, and party polarization.24 Ironically, even though Trump was perhaps the most divisive presidential candidate in modern history, the circumstances surrounding his campaign and election were sufficiently unusual as to make how voters and members of Congress would react to him an open question. Republicans had been in a delicate dance with Trump throughout the campaign; Democrats, though personally disgusted by him, hoped that they could negotiate with Trump on some of the unconventional positions he espoused early on. Yet every piece of data we have examined in this chapter suggests when it comes to partisanship—in the electorate and the Congress—nothing has really changed. Trump was neither the magic elixir that would act as a salve to polarization in the United States nor the additional fuel added to an already out-­of-­control dumpster fire. Although our measures of party division do not show a Trump effect, it could be that the uncharacteristic nature of his presidency cannot easily be captured by conventional measures like approval ratings and roll call votes. On a whole host of other dimensions, there well may be a Trump effect. Perhaps a nuanced study of the tone of political discourse would find that Trump’s presidency heightened rhetorical venom on the floors of the House and Senate, in members’ press releases, or in their tweets. Maybe surveys and interviews with members of Congress would uncover less emphasis on developing relationships with colleagues outside the halls of Congress. Indeed, although

The People, the President, and the Congress  83

“friendly relationships” in the House of Representatives25 and “courtesy” in the Senate26 no longer help generate landmark pieces of legislation the way they did in the “Textbook Congress” era—the contemporary Congress is just too partisan27—a culture of civility can signal to potential candidates that Congress is not an awful place to work. Without such a culture, the types of people who emerge as candidates might be more likely to act and talk like Trump. It is also possible that the way Trump communicated with and about the press has extended beyond the White House briefing room. And if members of Congress adopt a more adversarial relationship with journalists or scoff at “fake news,” that has clear implications for how politicians communicate with the public and whether voters can hold them accountable. The data we present in this chapter provide compelling evidence that in many ways, the people, the president, and the Congress are traveling down the same road they have been on since 1993. The president’s role in contributing to gridlock in Washington is nothing new and not markedly worse than it was before January 2017. One thing the Trump presidency has taught us, though, is that what we think we know can change in a moment. Because Trump was so unusual, we should probably—as political scientists—begin thinking about additional ways to gauge polarization, division, and gridlock.

Notes 1. “Here’s Donald Trump’s Presidential Announcement Speech,” Time, June 16, 2015, http://​time​.com​/3923128​/donald​-­­trump​-­­announcement​-­­speech​/ (accessed March 23, 2019). 2. Deborah Orin, “Trump Toys with Prez Run,” New York Post, July 12, 1999, http://​ nypost​.com​/1999​/07​/12​/trump​-­­toys​-­­with​-­­prez​-­­run/ (accessed March 23, 2019). 3. Elisha Fieldstadt, “Donald Trump Consistently Made Lewd Comments on ‘The Howard Stern Show,’” NBC News, October 8, 2016, http://​www​.nbcnews​.com​/politics​/2016​ -­­election​/donald​-­­trump​-­­consistently​-­­made​-­­lewd​-­­comments​-­­howard​-­­stern​-­­show​-­­n662581 (accessed March 26, 2019). 4. Daniella Diaz, “3 Times Trump Defended His ‘Locker Room’ Talk,” CNN, October 9, 2016, https://​www​.cnn​.com​/2016​/10​/09​/politics​/donald​-­­trump​-­­locker​-­­room​-­­talk​ -­­presidential​-­­debate​-­­2016​-­­election​/index​.html (accessed March 11, 2020). 5. All quotes in this paragraph come from Rachel Wellford, “Here’s the List of GOP Responses to Trump’s Vulgar Comments about Groping Women,” PBS, October 7, 2016, https://​www​.pbs​.org​/newshour​/politics​/headline​-­­republicans​-­­react​-­­trump​-­­comments​ -­­objectifying​-­­women (accessed March 24, 2019). 6. “General Election: Trump vs. Clinton,” RealClearPolitics, October 2–17, 2016, https://​ www​ . realclearpolitics​ .com ​ / epolls ​ / 2016 ​ / president ​ / us​ / general​ _ election​ _ trump​ _ vs​ _clinton​-­­5491​.html (accessed March 24, 2019). 7. See, for example, John M. Sides, Michael Tesler, and Lynn Vavreck, Identity Crisis: The 2016 Presidential Campaign and the Battle for the Meaning of America (Princeton, N.J.: Princeton University Press, 2018); Brian F. Schaffner, Matthew MacWilliams, and Tatishe Nteta, “Understanding White Polarization in the 2016 Vote for President: The Sobering Role of

84  Jennifer L . L aw less a nd Se a n M . Theri ault Racism and Sexism,” Political Science Quarterly 133, no. 1 (2018): 9–34; Gregory Krieg, “How Did Trump Win? Here Are 24 Theories,” CNN, November 10, 2016, https://​www​.cnn​.com​ /2016​/11​/10​/politics​/why​-­­donald​-­­trump​-­­won​/index​.html (accessed March 26, 2019). 8. Deborah Saunders, “Transactional President,” RealClearPolitics, April 16, 2017, https://​www​.realclearpolitics​.com​/articles​/2017​/04​/16​/transactional​_president​_133618​ .html (accessed March 24, 2019). 9. Brooke Seipel, “Report: Bush Called Trump’s Inauguration Speech ‘Some Weird S—t,’” The Hill, March 29, 2017, https://​thehill​.com​/blogs​/blog​-­­briefing​-­­room​/news​/326438​ -­­george​-­­bush​-­­after​-­­inauguration​-­­that​-­­was​-­­some​-­­weird​-­­s​-­­t​-­­report (accessed March 24, 2019). 10. Garth Kant, “See the List of 99 Republicans Who Refuse to Back Trump,” WND, May 5, 2016, https://​www​.wnd​.com​/2016​/05​/see​-­­list​-­­of​-­­98​-­­top​-­­republicans​-­­who​-­­refuse​-­­to​-­­back​ -­­trump/ (accessed March 24, 2019). 11. Harry Enten, “Americans’ Distaste for Both Trump and Clinton Is Record-­Breaking,” FiveThirtyEight, May 5, 2016, https://​fivethirtyeight​.com​/features​/americans​-­­distaste​-­­for​ -­­both​-­­trump​-­­and​-­­clinton​-­­is​-­­record​-­­breaking/ (accessed March 24, 2019). 12. M. J. Lee, Dan Merica, and Jeff Zeleny, “Bernie Sanders Endorses Hillary Clinton,” CNN, July 12, 2016, https://​www​.cnn​.com​/2016​/07​/11​/politics​/hillary​-­­clinton​-­­bernie​ -­­sanders​/index​.html (accessed March 24, 2019). 13. Nate Cohn, “Why Trump Won: Working-­Class Whites,” New York Times, November 9, 2016, https://​www​.nytimes​.com​/2016​/11​/10​/upshot​/why​-­­trump​-­­won​-­­working​-­­class​ -­­whites​.html (accessed March 24, 2019). 14. David Smith, “Early Voter Turnout Worries Democrats Who Fear ‘Enthusiasm Gap’ for Clinton,” Guardian, November 3, 2016, https://​www​.theguardian​.com​/us​-­­news​/2016​/nov​/03​ /early​-­­voting​-­­results​-­­donald​-­­trump​-­­hillary​-­­clinton​-­­battleground​-­­states (accessed March 24, 2019). 15. Matthew Yglesias, “What Really Happened in 2017, in 7 Charts,” Vox, September 18, 2017, https://​www​.vox​.com​/policy​-­­and​-­­politics​/2017​/9​/18​/16305486​/what​-­­really​ -­­happened​-­­in​-­­2016 (accessed March 24, 2019). 16. “Historical Presidential Election Information by State,” 270toWin, https://​ www​ .270towin​.com/ (accessed March 24, 2019). 17. “2016 Presidential Election Results,” Politico, December 13, 2016, https://​www​.politico​ .com​/mapdata​-­­2016​/2016​-­­election​/results​/map​/president/ (accessed March 24, 2019). 18. Larry M. Bartels, “Partisanship and Voting Behavior, 1956–1996,” American Journal of Political Science 44, no. 1 (2000): 35–50; Geoffrey L. Cohen, “Party over Policy: The Dominating Impact of Group Influence on Political Beliefs,” Journal of Personality and Social Psychology 85, no. 5 (2003): 808–22; David C. King and Richard E. Matland, “Sex and the Grand Old Party: An Experimental Investigation of the Effect of Candidate Sex on Support for a Republican Candidate,” American Politics Research 31, no. 6 (2003): 595–612; John Sides and Lynn Vavreck, The Gamble: Choice and Chance in the 2012 Presidential Election (Princeton, N.J.: Princeton University Press, 2013). 19. Matthew Nussbaum, “Poll: Republicans’ Confidence in Russia’s Putin on the Rise,” Politico, August 16, 2017, https://​www​.politico​.com​/story​/2017​/08​/16​/poll​-­­republicans​ -­­putin​-­­russia​-­­confidence​-­­241701 (accessed March 26, 2019). 20. Bradley Jones, “Americans Are Generally Positive about Free Trade Agreements, More Critical of Tariff Increases,” Pew Research Center, May 10, 2018, https://​www​ .pewresearch​.org​/fact​-­­tank​/2018​/05​/10​/americans​-­­are​-­­generally​-­­positive​-­­about​-­­free​-­­trade​ -­­agreements​-­­more​-­­critical​-­­of​-­­tariff​-­­increases/ (accessed March 26, 2019). 21. Keith T. Poole and Howard Rosenthal, Congress: A Political-­Economic History of Roll Call Voting (New York: Oxford University Press, 1997); David W. Rohde, Parties and Leaders

The People, the President, and the Congress  85 in the Post-­Reform House (Chicago: University of Chicago Press, 1991); and Sean M. Theriault, Party Polarization in Congress (New York: Cambridge University Press, 2008). 22. The party unity scores can be found on page 36 of the February 25, 2019, edition of CQ. 23. E.  J. Dionne, 2013. Why Americans Hate Politics (New York: Simon and Schuster, 2013); Mickey Edwards, The Parties versus the People: How to Turn Republicans and Democrats into Americans (New Haven, Conn.: Yale University Press, 2012); Jennifer L. Lawless and Richard L. Fox, Running from Office: Why Young Americans Are Turned Off to Politics (New York: Oxford University Press, 2015); Thomas E. Mann and Norman J. Ornstein, It’s Even Worse Than It Looks: How the American Constitutional System Collided with the New Politics of Extremism (New York: Basic Books, 2013). 24. Sarah  A. Binder, Stalemate: Causes and Consequences of Legislative Gridlock (Washington, D.C.: Brookings Institution Press, 2003); Barbara Sinclair, Party Wars: Polarization and the Politics of National Policy Making (Norman: University of Oklahoma Press, 2006); Sean  M. Theriault, Party Polarization in the Congress (New York: Cambridge University Press, 2008). 25. Herbert B. Asher, 1973. “The Learning of Legislative Norms,” American Political Science Review 67, no. 2 (2): 499–513. 26. Donald Matthews, “The Folkways of the United States Senate: Conformity to Group Norms and Legislative Effectiveness,” American Political Science Review 53, no. 4 (1959): 1064–89. 27. For a recent analysis of how social engagement affects the legislative process, see Jennifer L. Lawless, Sean M. Theriault, and Samantha Guthrie, “Nice Girls? Sex, Collegiality, and Bipartisan Cooperation in the U.S. Congress,” Journal of Politics 80, no. 4 (2018): 1268–82.

THE CROSSROADS OF IMPE ACHMENT The Threat of Removal and the Separation of Powers AN DREW RUDALE VIGE

On July 20, 1787, George Mason of Virginia rose at the Constitutional Convention and asked his colleagues a simple question: “Shall any man be above justice?”1 The question was in response to a proposal to strike the language in the current draft of the Constitution that removed the president from office if impeached and convicted. Those making the motion argued the president “ought not to be impeachable whilst in office,” because such a threat would “render the executive dependent on those who are to impeach.”2 And anyway, Pennsylvania’s Gouverneur Morris added, who would that be? Mason’s and Morris’s questions turned on the deeper debate in which the delegates were engaged: how the new American government could succeed in (as James Madison put it) “combining the requisite stability and energy in government, with the inviolable attention due to liberty and to the republican form.”3 The combination required an extraordinary structural balancing act. Those gathered in Philadelphia knew that the government formed by the Articles of Confederation had failed the country, not least because its lack of an executive branch meant it could not carry out the policies it enacted. As Alexander Hamilton noted, “a government ill executed, whatever it may be in theory, must be, in practice, a bad government.”4 On June 1, James Wilson had sought to fill this void with his own motion: that the office of the presidency of the United States should be filled by a single person. Wilson’s motion prompted “a considerable pause.”5 The assembled notables realized that its consequences would be profound. Even as the new nation wanted to escape capricious governance by legislative committees, it sought to avoid the “absolute despotism” and “the history of repeated injuries and usurpations” assigned by the Declaration of Independence to the 86

The Crossroads of Impeachment  87

British monarchy. That an American could not become a tyrant too was fantasy, warned the antifederalist Cato during the ratification debates. History was full of examples when “to live by one man’s will became the cause of all men’s misery.”6 Responding in the Federalist, Hamilton claimed that “all men of sense will agree in the necessity of an energetic Executive.” But he stressed the limits the Constitution placed on the new president. Unlike the king of Great Britain, “the President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law.” In short, the answer to Mason’s question was “no.” The answer to Morris’s was “Congress.” Impeachment would be a mechanism to maintain the proper balance of power among the branches, and between the government and the populace. Yet the actual use of impeachment in American history has been limited— especially against presidents. Only three have been formally impeached, and none has been removed from office. A fourth president did leave office of his own volition under the pressure of pending impeachment proceedings. Still, that is one “successful” impeachment process in 231 years. Only eight federal officials overall have been removed from office via impeachment.7 Political scientist Keith Whittington argues that “we should not want impeachment to become part of our normal political experience. It is an extraordinary remedy for extraordinary situations.”8 Others, though, have called for “normalizing” impeachment as a check on presidential misbehavior. Journalist Ezra Klein, for instance, finds it problematic that “firing our national executive is viewed as a crisis rather than as a difficult but occasionally necessary act. . . . [W]e have come to see the impeachment power as too sacrosanct.”9 In early 2019, The Atlantic’s Yoni Appelbaum added: “It is absurd to suggest that the Constitution would delineate a mechanism too potent to ever actually be employed.”10 Much of this commentary, in either direction, was prompted less by an instinct toward periodic constitutional reevaluation than by the events of Donald  J. Trump’s presidency. Harvard law professor Laurence Tribe called for Trump’s impeachment before his administration was four months old.11 Even so, the discussion raises important questions about the history and role of impeachment in American political life—as well as the Constitution’s other mechanism for removing a president from office, the disability procedures in the Twenty-­fifth Amendment. How do these tools fit into Congress’s armory for oversight of the executive branch? How high should the bar be—and must a “high crime” be a statutory crime? Can impeachment remain largely “sacrosanct” and still work to rein in executive overreach, or has partisan polarization made the act effectively impossible, even illegitimate?

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At the Convention Six weeks before the debate noted above, Mason had made clear his feeling that “some mode of displacing an unfit magistrate” was “indispensable,” given that electors could make a mistake and that men were corruptible. But in early drafts of the Constitution, it wasn’t clear how that would happen. As of early June 1787, the executive—to be selected by the legislature for a single seven-­year term—could be “removable on impeachment and conviction of malpractice or neglect of duty.”12 But some delegates argued “the national legislature should have power to remove the executive at pleasure,” others that such power should be placed instead in a majority of state legislatures.13 More broadly most delegates did not want to make the executive, in Mason’s phrase, “the mere creature of the legislature.”14 The doctrine of separation of powers, even as modified in the American context to a separation of institutions sharing powers, spoke strongly against such a hierarchical relationship.15 Yet the framers needed to solve a series of linked equations, in which changing values in one changed the outputs of another.16 The powers of the office mattered, for instance: the more potency and discretion vested in the presidency, the more desirable some mechanism to check abuse of “the executive power.” But if Congress chose the president, how much executive independence could be expected? “If he is to be a check on the Legislature let him not be impeachable,” Gouverneur Morris argued, making a case for popular election of the president instead.17 Then there was the length of a president’s term: the shorter it was, the less vital the ability to remove him from office. And should the president be able to run for reelection? Here again removal might be less crucial if the electorate could weigh in at repeated short intervals. Thus enthusiasm for the inclusion, scope, and ease of impeachment in the Constitution ebbed and flowed in conjunction with numerous other decisions. Nor was the executive the only branch implicated. If, for instance, federal judges were to try impeachments—as the delegates initially decided in June—it might be problematic to have them appointed by the president. By mid-­July the convention had removed impeachment from judicial jurisdiction. Even so, fears that legislative control of impeachment would mean legislative control of the president’s behavior—indeed, could “effectually destroy his independence”—made delegates nervous. One suggestion was that state-­level judges constitute some sort of “forum,” perhaps called into being after some “preliminary inquest whether just grounds of impeachment existed.”18 What might constitute such “just grounds” also excited much debate. Suggestions ranged from “misfeasance” to “mal-­and corrupt conduct,” “treachery,” “incapacity,” “negligence,” and even “perfidy.”19 The wording wound up in the purview of the catch-­all committee dealing with postponed matters,

The Crossroads of Impeachment  89

which recommended far narrower language—just “treason or bribery”—while entrusting the decision to impeach to the House of Representatives and the trial to the Senate. Both provisions got some pushback from the convention as it wrapped up its work. James Madison, for instance, objected to the Senate’s role as jury, and wanted to substitute the Supreme Court. His motion failed, but a subsequent proposal to require a two-­thirds majority of senators for conviction was adopted. Limiting the grounds for impeachment to bribery and treason, by contrast, seemed to a majority of delegates to set too high a bar. George Mason thought “many great and dangerous offences” would be excluded, especially since the Constitution prevented bills of attainder.20 He proposed adding “maladministration” to the list. But this, Madison thought, went too far the other way. “So vague a term,” he argued, would make the president’s tenure subject to the “pleasure of the Senate.” Impeachment should not arise simply from policy disagreements or (as James Iredell of South Carolina would later put it) “want of judgment.” Mason countered with the phrase that won the day: “Treason, Bribery, or other high Crimes and Misdemeanors.”21 That, of course, settled matters only for the moment. What were high crimes and misdemeanors, anyway? Did they need to be violations listed in the statute book? Alexander Hamilton, in Federalist No. 65, tried to separate impeachable offenses from justiciable crimes: high crimes, he thought, constituted wrongdoing “of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.” They involved “the abuse or violation of some public trust”—crimes against the state, rather than those of a personal, tawdry nature. Soon enough Hamilton’s own career would test the premise: the House of Representatives, investigating charges that as secretary of the treasury he engaged in improper speculation, declined to proceed with impeachment when it turned out that the payments in question were actually tied to blackmail over an extramarital affair.22 How “high crimes and misdemeanors” have been interpreted in practice will be central to considering the crossroads spotlighted by impeachment: the intersection of ethics and legalities, for instance, and of accountability and separated powers. It might be framed in terms of a rare agreement between Hamilton and Thomas Jefferson: the dangers of politics overtaking reason. Jefferson commented in 1798 that impeachment is “the most formidable weapon for the purpose of a dominant faction that was ever contrived.”23 Hamilton, in the Federalist, had similar worries. “In many cases,” he wrote, impeachment “will connect itself with the pre-­existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.” In short, there is always the risk that, as then-­Rep. Gerald

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Ford declared in 1970, “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.”24

Impeachment in Practice How has Congress regarded its power of impeachment and removal in practice? Calls for impeachment have been a commonplace in American history. Even George Washington had to read editorials calling for his ouster. After the unpopular Jay Treaty of 1795, a Philadelphia newspaper mused that “there are important purposes to be gained by even a vote of impeachment. . . . It would be a solemn and awful lesson to future Presidents.”25 Opposition legislators urged John Adams’s impeachment—angry at his repatriation to Britain of a mutinous sailor who claimed to be American—and then Thomas Jefferson’s. The latter case, over a personnel matter, got as far as a House vote. It failed 171–1.26 This range of charges suggests that George Mason’s expansive notion of “maladministration,” though rejected by the delegates in Philadelphia, still lingered. The idea that impeachment could serve as a “solemn and awful lesson” ensuring particular presidential policy choices—or, less responsibly but more dramatically, as a play to one’s political base—seems to have had early appeal. As noted below, in some ways the nation has come full circle on that point. But to date only five impeachment proceedings have gained serious traction in practice. John Tyler was the sole instance prior to the Civil War. He had become president upon the death of William Henry Harrison, but having been placed on the Whig ticket as a symbolically useful defector from the Jacksonian Democrats, it turned out Tyler shared few of his new party’s views.27 He soon went to war with the Whig majority in Congress, vetoing numerous bills tied to the party platform. By August 1842, most of his cabinet had resigned and notable legislators like John Quincy Adams (by then a House member) were pushing for impeachment. Adams thought Tyler “a slavemonger whose talents are not above mediocrity,”28 a judgment with some merit. Still, generalized resentment was not broadly convincing as an impeachable offense. Tyler, responding that he would “plead guilty” to “the high crime of . . . daring to have an opinion of my own,” wound up winning the battle. Public sentiment backed him: the Whigs suffered heavy losses in the 1842 elections, and the impeachment resolution that came to a vote during the subsequent lame duck session was comfortably defeated.29 The remaining examples of serious impeachment proceedings preceding that of Donald Trump in 2019–20—the sagas of Andrew Johnson, Richard Nixon, Bill Clinton—are well-­chronicled.30 The narrative below therefore seeks to highlight these efforts’ working definitions of “high crimes and misdemeanors” and the resulting template of impeachment bequeathed to the future. As Sen. Richard Yates stated during the Johnson trial, “constructions of

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our Constitution and laws given here and precedents established by these proceedings will be quoted as standard authorities in all similar trials hereafter.”31 I fold such authorities into the story of the Trump impeachment near the end of the chapter. Andrew Johnson. President Andrew Johnson’s impeachment in 1868 bore some similarities to the failed effort to impeach John Tyler. Like Tyler, Johnson was a ticket-­balancer with aggressive self-­regard and little affinity for the policy priorities of the party that had nominated him. While Sen. Charles Sumner optimistically asserted that Johnson was “the sincere friend of the negro,” Frederick Douglass’s observation at the 1865 inaugural ceremonies was more astute: “whatever Andrew Johnson might be, he is no friend of our race.”32 Of course, again like Tyler, Johnson was not supposed to become president. Lincoln’s assassination quickly changed that. To the dismay and then the rage of the Republican majority in Congress, Johnson sought to protect the autonomy of the southern states instead of the citizenship of newly freed slaves. He approved new provisional state governments (which promptly sanctioned legal “black codes”—and illegal lynchings—to deny civil liberties to African Americans), granted wholesale pardons to former Confederate officials, vetoed key Reconstruction measures, and took no action when racist violence raged in the South. As historian Jon Meacham writes, Johnson was a man of principle: “the problem was that the principle on which Johnson had embarked was one of white supremacy.”33 A contemporary essayist called Johnson a “tool” of Confederate traitors, “egotistic to the point of mental disease,” and “a shameless betrayer of the people who trusted him.”34 As the 1866 midterm elections approached, the president turned his rhetorical fire on his one-­time sponsors. “We have seen this Congress pretend to be for the Union, when its every step and act tended to perpetuate disunion,” he charged, adding in another harangue that “I have been traduced and abused.” The congressional Republicans called him “Judas,” he went on, and “compare themselves with the Savior” despite their “diabolical and nefarious policy.”35 They returned the favor, spreading dubious conspiracy theories about Johnson’s supposed role in Lincoln’s assassination and an alleged sale of pardons. In one respect Johnson was quite unlike Tyler: he received little succor from the electorate. The 1866 elections returned even larger majorities for the so-­called Radical Republicans, and they soon sought to limit the president’s ability to set policy. When Johnson sought to undermine the enforcement of federal civil rights statutes by the military, Congress passed a new Reconstruction Act over his veto.36 Legislators also included language in a defense appropriations act that required the president to transmit all military orders through the general-­in-­chief of the army, Ulysses  S. Grant. Under the statute, Grant could not be removed without Senate consent—a constitutionally dubious

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provision that Congress extended to all cabinet members in the 1867 Tenure of Office Act. On February 21, 1868, Johnson nonetheless fired Secretary of War Edwin Stanton. On February 24, the House impeached him. It was so eager to act that it did so without even bothering to draft specific articles of impeachment. Eleven of those would appear a week later, most of them variations on the same charge: that Johnson had violated the Tenure of Office Act. Rep. John Bingham, leading the House prosecution in the Senate, argued that the president had to obey and execute the law, even if he felt it was unconstitutional; to do otherwise was “an assumption which invests him with legislative and judicial power.” And “if the president may dispense with one act of Congress upon his own discretion, may he not in like manner dispense with every act of Congress?”37 An additional article of impeachment condemned Johnson’s rhetoric as “unmindful” of the “dignity and proprieties” of his office, which undermined the “harmony and courtesies which ought to exist” between the branches. Johnson “did attempt to bring into disgrace, ridicule, hatred, and contempt, and reproach the Congress,” the House charged, and “to impair and destroy the regard and respect of all the good people of the United States for the . . . legislative power thereof. ”38 The Senate thought this article showed a thin-­skinned desperation, and effectively discarded it. And the others, linked to a law many thought would not withstand judicial review, raised problems too. After all, Congress’s real problem was with Johnson himself. As historian W. R. Brock put it: “when impeachment finally arrived, everyone accepted that the breach of the Tenure of Office Act was not the real cause . . . ; it was necessary to prove a specific breach of the law but the reason was the need to demonstrate that a President could not pursue a policy rejected by the legislature.”39 Yet the president has independent authority under the Constitution; the United States does not have a parliamentary system. Thus Sen. Edward Ross, a Republican from Kansas, worried that an impeachment driven by “insufficient proofs” and “partisan considerations” would mean that “the independence of the executive office as a coordinate branch of the government was on trial.”40 His decisive vote against convicting Johnson would later be chronicled as one of John  F. Kennedy’s Profiles in Courage.41 Another Republican senator who voted against removing Johnson from office, William Fessenden of Maine, argued that such a penalty should be imposed only in “extreme cases, and then only upon clear and unquestionable grounds” when there was “no suspicion upon the motives of those who inflict the penalty.”42 Others argue that Johnson’s impeachment was indeed appropriate, even morally obligatory. Appelbaum writes, for instance, that “to deny the justice of Johnson’s impeachment is to affirm the justice of his acts. If his impeachment was partisan, it was because one party had been formed to defend the freedom

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of man, and the other had not yet reconciled itself to that proposition.”43 Still, one lesson of Johnson’s acquittal is that presidential malevolence may not be sufficiently convincing as an impeachable offense in its own right. Nor is presidential rhetoric, even if highly charged. Nor is acting within the legitimate bounds of presidential power—even when the actions taken are despicable. Richard Nixon. The next serious impeachment effort came a century later, testing where those legitimate bounds might fall. Richard Nixon, too, faced a hostile Congress, but he had twice won the presidency in his own right. After his landslide reelection in 1972, carrying forty-­nine states, he seemed to be at the top of the political world. En route to that victory, though, Nixon sanctioned a number of dubious tactics designed to undermine his strongest opponents and the Democratic Party generally. Whatever the polls showed, Nixon told the press in the summer of 1972, he remembered his razor-­thin defeat in 1960—and stood by the advice he received when he first ran for Congress in 1946: “Always run as if you are one million votes behind, and then you might win by one vote.”44 In practice, running that kind of race justified the use of numerous “dirty tricks,” including efforts to break into Democratic National Committee headquarters in the Watergate office complex to photograph documents and plant bugs in phones.45 On June 17, 1972, Nixon’s burglars slipped up, were caught, and set in motion a long chain of investigations that both prompted and unearthed a wide range of potential high crimes and misdemeanors. That Nixon personally approved the Watergate break-­in specifically has not been proved. But he was told nearly immediately that people high in his campaign and administration had pushed for covert intelligence efforts, funded them, and known of at least the outlines of the Watergate operation—and that several of the organizers could be linked directly to the White House. The president’s reflexive response was to organize a cover-­up. In the first conversation on the topic recorded by H. R. Haldeman in his diary on June 20, he noted that “[the president] raised it in considerable detail. . . . The conclusion was that we’ve got to hope the FBI doesn’t go beyond what’s necessary in developing evidence and that we can keep a lid on that, as well as keeping all the characters involved from getting carried away with any unnecessary testimony.” Three days after the break-­in, then, the basic plan was already in place: to constrain the FBI on the one hand, and the hired criminals on the other. As Haldeman told Nixon on June 21, “The problem is that there are all kinds of other involvements and if they started a fishing thing on this they’re going to start picking up tracks.”46 The effort to restrain the investigation first centered on the specific pedigree of the burglars, who had CIA connections going back to the 1961 Bay of Pigs invasion. The White House thought this might be a shield against the FBI. In a

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recorded June 23 conversation later termed the “smoking gun,” Nixon approved Haldeman’s recommendation that “the way to handle this now is for us to have [the CIA] call [the FBI] and just say, ‘stay the hell out of this business here.’” He went on, “You call [the CIA] in, . . . just say ‘this is a comedy of errors, bizarre . . . the president believes this will open up the whole Bay of Pigs thing up again.’ And . . . they should call the FBI in and say that ‘we wish for the country, don’t go any further into this case, period!’ And that destroys the case.”47 This effort worked only briefly to impede the criminal investigation, forcing Nixon to rely on the second strand of the cover-­up: keeping the burglars from talking about their connections to the White House. As early as June 29, Nixon’s personal attorney approached the campaign’s finance director for “all the cash I can get,” receiving about $75,000 as a first installment to pass along to the burglars and their families. Haldeman reported to Nixon on August 1, “Everybody’s satisfied. They’re all out of jail, they’ve all been taken care of.” “At considerable cost, I guess?” asked Nixon. “Yes.” “It’s worth it.” “It’s very expensive. It’s a costly exercise, but that’s better spent than—” “That’s what the money is for,” replied the president.48 But the burglars did not stay satisfied. In March 1973, White House counsel John  W. Dean told the president that their demands amounted to ever-­ escalating blackmail, implicating a number of key aides in “the obstruction of justice situation.” Further, “there’s a real problem in raising money.” The president’s response homed in on the practicalities of the cover-­up: “How much money do you need?” Concerned, Dean gave a number he thought was ridiculously large: “I would say these people are going to cost a million dollars over the next two years.” Four beats of silence. Then, Nixon’s response: “We could get that. . . . You could get a million dollars, and you could get it in cash. I know where it could be gotten.”49 In the end, though, the cover-­up failed. Dean started to speak to prosecutors and investigators unearthed the “other involvements” Haldeman had feared. These included the use of the Cuban Watergate team in other operations, such as a burglary designed to obtain the psychiatric records of Daniel Ellsberg, who had leaked the Pentagon Papers to the media in 1971. Also “the guy we had shadowing Teddy Kennedy for eight or nine months,” as instructed by Nixon’s domestic aide John Ehrlichman.50 Also efforts to forge cables that would frame the Kennedy administration for murders abroad. And also, ultimately, efforts to use the machinery of the federal government (the CIA, FBI, NSA, IRS, and other agencies) to track and punish Nixon’s political opponents.51 Along the way, congressional hearings were held, the existence of a White House taping

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system was uncovered, and a special prosecutor was appointed and then dramatically fired in what became known as the “Saturday Night Massacre.” That event led to a massive public backlash against the president’s public intervention into the inquiry. It turned a criminal investigation into an impeachment proceeding.52 The House Judiciary Committee would ultimately vote on five articles of impeachment, and approve three. Those winning bipartisan majorities charged the president with: (1) obstruction of justice, in connection to the efforts to block the investigation of the Watergate burglary; (2) abuse of power, in connection with efforts to use the White House, IRS, and law enforcement and intelligence agencies “in violation or disregard of the constitutional rights of citizens”; and (3) refusal to cooperate with the House in its constitutionally empowered impeachment inquiry, notably by failing to comply with sub­ poenas relating to the tapes of Oval Office conversations revealed by the Senate Watergate Committee in 1973.53 The Supreme Court’s unanimous decision in U.S. v. Nixon shortly thereafter, announced on July 27, 1974, set aside the president’s claim that these conversations enjoyed executive privilege. With the release of the “smoking gun” tape, Nixon’s remaining support in Congress melted away. On August 9, to preempt impeachment and conviction, Nixon resigned the presidency. The two articles that failed to win committee approval help delineate legislators’ definition of impeachable offenses. One charged the president with tax evasion in the form of hugely inflated deductions linked to Nixon’s donation of his vice-­presidential papers to the National Archives; it also said that improvements made by the government to his private properties amounted to a violation of the domestic emoluments clause prohibiting him from receiving federal payments beyond his salary. This, House members decided, was a crime—but not a “high crime.” That is, it was committed in the president’s private capacity rather than as an abuse of his official office. The other rejected article addressed the Nixon administration’s secret expansion of the Vietnam War into Cambodia in 1969 and 1970. Nixon’s concealment of the “existence, scope and nature” of the operation, its drafters charged, undermined Congress’s authority “to make war, to make appropriations and to raise and support armies.” But however dubious, these actions could be perceived as incidental to the presidential power to conduct hostilities in Southeast Asia as authorized by the 1964 Gulf of Tonkin resolution. In accepting other articles, though, legislators agreed that actions flowing from the president’s role as chief executive can be impeachable offenses. Nixon argued that in that role, he could direct the behavior of executive agencies as he saw fit; indeed, as chief law enforcement officer, he had the right to direct the FBI’s investigation into the Watergate burglary, and to limit what evidence

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might be used in court. Congress did not accept that such a theory of a “unitary executive” made it impossible for the president to obstruct of justice or abuse his power. Bill Clinton. The impeachment of Bill Clinton in 1998 had less to do with presidential power than with personal malfeasance. It represented the unlikely convergence of three strands in Clinton’s history: decades-­old real estate investments, a disputed encounter in a Little Rock hotel room with an Arkansas state employee, and an affair with a White House intern. These came together in the remit of independent counsel Kenneth Starr and, later, the House of Representatives.54 The story began in 1978, when then-­Arkansas attorney general Clinton and his wife Hillary became investors in a proposed vacation resort called “Whitewater.” As Clinton’s political career rose, the project sank, caught up in both financial chicanery and the 1980s collapse of the savings and loan industry. By the time Clinton ran for president in 1992, he had a national reputation as a creative policymaker—and also a less exalted local reputation as a womanizer. In 1991, Governor Clinton met low-­level state employee Paula Corbin (later Jones). She later accused him of a crude sexual advance, which he denied. Both episodes followed Clinton to the White House. Republicans charged that as governor he had received special treatment from state and federal bank regulators. Under intense political pressure, Clinton requested that a special prosecutor be appointed to investigate Whitewater, in order to show he had nothing to hide. In January 1994, former U.S. attorney Robert Fiske took on the task; later that year, when the Independent Counsel Act was reauthorized, Fiske was replaced by former judge and solicitor general Kenneth Starr. Meanwhile, Paula Corbin Jones decided to sue Clinton for sexual harassment. Clinton refused to apologize, or pay a settlement, holding that nothing had occurred between them.55 Another important event in 1994 was the sweeping Republican victory in the midterm elections, which gave the GOP a majority in both House and Senate for the first time since the 1950s. Interbranch hostility surged, leading to two government shutdowns over budget policy in late 1995 and early 1996. During this time, the president began an intermittent sexual affair with a White House intern, twenty-­two-­year-­old Monica Lewinsky. The Clintons were never charged with criminal culpability in the Whitewater affair. But the Jones case became a conservative cause célèbre and a traction beam of sorts. Lewinsky had told others about her affair, and was subpoenaed by Jones’s lawyers—who passed along the information to Starr’s team. One of Lewinsky’s confidants (who had taped their conversations) claimed that Clinton had told Lewinsky to lie in her Jones deposition, and had tried to get her a job to guarantee her cooperation. The last allegation caused Starr to lobby hard to expand his investigation to this new scandal—since “jobs for silence” claims had arisen in Whitewater as well. When Clinton was finally deposed in

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the Jones case, he was asked about various women; to his surprise, the most detailed questions involved Lewinsky. When asked, under oath, “did you ever have sexual relations with Monica Lewinsky  .  .  .  ?”, Clinton’s reply seemed unambiguous: “I have never had sexual relations with Monica Lewinsky.” Four days and various leaks later, the scandal hit the headlines. Clinton’s escalating denials ultimately gave way to grudging admission, including in an angry August 1998 address soon after testifying before Starr’s grand jury. “It is time to stop the pursuit of personal destruction,” the president said. “Even presidents have private lives.” That became the main dividing line between Clinton’s defenders and accusers: was his affair, even his lies about it, simply a personal matter? Or was it actually an affair of state, given that he had delivered some of those lies under oath? And if he had in fact coached witnesses to shape their stories to his, and compensated them with jobs, would that constitute obstruction of justice? The independent counsel’s report, released in September, emphatically condemned Clinton on both counts. It laid out the affair in near-­pornographic detail and was structured as an indictment; eleven “grounds for impeachment” made up a separate section comprising about 40 percent of the overall text. Republicans were eager to follow up, given that as early as April 1998 Speaker of the House Newt Gingrich had told House Republicans that “the President of the United State is engaged in a vast criminal conspiracy.”56 The Judiciary Committee did not conduct an independent investigation, simply adopting the Starr report and its supporting documents in full. Public opinion never moved in the direction Clinton’s accusers expected. Two-­thirds of respondents consistently said Clinton should not be impeached, and the president’s Gallup job approval numbers rose, never falling below 60 percent during 1998. The November 1998 elections reinforced the point: Republicans lost five seats in the House, the first time since 1934 that the president’s party had gained strength in a midterm. Even so, on December 12, 1998, the House Judiciary Committee approved four articles of impeachment, all but one along strict party lines.57 The first article accused Clinton of perjury in his grand jury testimony in August; the second, of perjury in his Jones deposition in January; the third, of obstruction of justice in the form of false statements, the coaching of witnesses, and the alleged offer of a job to Lewinsky in return for her silence; and the fourth, of an abuse of power grounded in his refusal to cooperate with the impeachment proceedings. On December 18, the full House adopted the first and third articles, rejecting the other two as well as a motion to censure the president instead.58 Emotional, partisan pressures led to a near lockstep vote on the successful articles on the floor too: only five Democrats voted for, and five Republicans against, Article I. For the first time since 1868, the president of the United States was formally impeached.

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In the Senate trial of January 1999, though, not even a majority of senators, never mind the required two-­thirds, voted to convict Clinton on either article.59 Far from attracting the dozen Democrats needed, the votes to remove Clinton from office lost five and then ten Republican senators (regarding perjury and obstruction of justice respectively). The Senate came to relatively rapid consensus against both the House’s approach and its highly partisan tone, and majority leader Trent Lott sought to wrap up the trial in just six days (in the end, it took twenty-­one).60 Sen. Robert Byrd (D-­WV), a longtime defender of his body’s institutional prerogatives, even moved that the case be dismissed entirely—“not because I believe the President did not do wrong,” but because there was no chance he would be removed and “lengthening this trial will only prolong and deepen the divisive, bitter, and polarizing effect that this sorry affair has visited upon our nation.”61 Some Republicans agreed that Clinton’s behavior was, as Sen. Susan Collins (R-­ME) wrote in her diary, “so tawdry, so dispiriting”—but not impeachable. Collins (and most others) felt that Clinton had lied, but in ways that “may not meet the legal test of perjury.”62 The House’s impeachment charges against Clinton sought to borrow gravitas from the framing of past cases: failure to obey and execute the law, obstruction of justice, abuse of power. But the facts underlying those charges failed to convince. A Watergate-­era member of the House Judiciary Committee argued they were closer to the failed article charging Nixon with tax fraud: “improper and serious, but by nature personal misconduct and therefore not impeachable.”63 Like Collins, some doubted that a criminal perjury charge against Clinton would have been brought by any practicing prosecutor. Obstruction of justice, for its part, foundered on the fact that no other person involved in the case testified that the president asked them to lie or act evasively, or offered inducements to do so. Finally, the public verdict was clear. Clinton’s Gallup approval rating immediately after his impeachment was the highest of his presidency: 73 percent. As Clinton legislative aide Lawrence Stein recalled, “Keep in mind, the Republicans had just lost ground in the elections. And among political people, there is only one clear registration of reality: at the ballot box.”64 What does this survey of pre-­Trumpian history reveal? Certainly public opinion matters—and thus politics. Building bipartisanship—at least as the process develops—is requisite to imposing accountability that does not backfire on an impeachment effort’s progenitors. The substantive rules of the game, as Congress has interpreted them, seem to include several principles. First, although an impeachable offense need not be a “crime” as defined in the statute book, the framing of presidential behavior as “illegal” is nonetheless a constant. Rhetoric, however inflammatory, is not sufficient grounds. “Maladministration” or a “want of judgment” is enough for

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political attacks, but must be linked to behavior that crosses some legal or constitutional line. Second, conversely, not all crimes are impeachable offenses or, at least, do not warrant removal—Clinton’s perjury about his affair, for instance. “High crimes and misdemeanors” should, as Hamilton suggested, be public wrongs, rather than personal sins. Legal scholar Charles Black argued in 1974 that only those offenses “which are obviously wrong . . . and which so threaten the order of political society as to make pestilent and dangerous the continuance in power of their perpetrator” should be impeachable.65 Third, left unclear is the question where the line should be drawn when a president uses constitutional powers for bad ends. Presidents can fire political appointees, and the pardon power is barely limited by the Constitution—but could firing someone or pardoning someone else itself be a mechanism to obstruct justice? The Nixon articles suggest the answer is “yes, sometimes”—but his actions were sufficiently tinged with clear illegality to cloud the broader principle. The question would return to generate much debate during the Trump administration. But to tell that story, we first need to tell another.

Removal by Other Means Presidents can of course leave office by means other than impeachment.66 The most common has been death, which has claimed eight sitting presidents. Four were murdered: Abraham Lincoln (in 1865), James A. Garfield (1881), William McKinley (1901), and John  F. Kennedy (1963). Four others died of natural causes, including William Henry Harrison, who famously gave an interminable inaugural address in frigid weather, only to succumb to pneumonia a month later; Zachary Taylor, who died of what was called “cholera morbus” in 1850; and Warren Harding, felled by heart disease in 1923. Franklin Delano Roosevelt, arguably, worked himself to death, having run for and won a third and then a fourth term in order to fight the Axis in World War II. Though his health had deteriorated dramatically before the 1944 election, that was not public information until April 1945, when he died of a cerebral hemorrhage at age sixty-­three.67 With due respect to the Grim Reaper, a more immediately relevant potential check on presidential behavior is the Twenty-­fifth Amendment to the Constitution, ratified in 1967. This amendment addressed the question of “inability” contemplated in Article II: “in case of the removal of the president from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the vice president.” Even more than impeachment, the meaning of inability was not defined by the text, or by its framers’ debates. John Dickinson did think to ask, “What is the extent of the term ‘disability’ and who is to be the judge of it?” But as political scientist

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Michael Nelson observes, “the delegates adjourned for the week and never revisited the matter.”68 Both of Dickinson’s questions are important even now, and only the second has been answered. The Twenty-­fifth Amendment clarified that the judge of whether a president is “unable to discharge the powers and duties of his office” would be either (1) the president or (2) the vice president and the cabinet, bolstered if necessary by Congress. The amendment allows presidents to declare their own temporary disability, and then to rescind it; in such cases the vice president serves as acting president.69 Presidents Ronald Reagan (1985) and George W. Bush (2002 and 2007) both transferred power to their respective vice presidents for several hours at a time while each was undergoing surgical procedures requiring anesthesia. If, however, the president cannot make such a declaration, the vice president and “a majority of . . . the principal officers of the executive departments” are empowered to make it instead, certifying the president’s inability to serve to the Speaker of the House and president pro tempore of the Senate. Their decision can then be rescinded by the president’s own written declaration that “no inability exists.” So far, so good. But what if the president fails to declare his disability not because he can’t but because—perhaps despite manifest need—he won’t? Here, again, the vice president and cabinet can send a declaration of disability to Congress. If the president rescinds it, the vice president and cabinet have four days to push back, to certify again their belief that the president is unable to do the job. At this point, Congress would step in to make the choice. If two-­ thirds of both House and Senate affirm that the president is indeed disabled, the vice president would take over the presidency’s duties and powers. The amendment formalized ad hoc efforts to ensure the continuity of government. After Dwight Eisenhower suffered a stroke in late 1957—following a heart attack in 1955 and surgery for a partially blocked intestine in 1956—he wrote to Vice President Richard Nixon, specifying that he would, if possible, inform the vice president “in the event of inability” that Nixon should serve as acting president. But if Eisenhower was unable to communicate with the vice president, the latter would be “the individual explicitly and exclusively responsible” for making the call: “you will decide.” Either way, the president wrote, “I will be the one to determine if and when it is proper for me to resume” my duties.70 Versions of this arrangement were subsequently adopted by John Kennedy and Lyndon Johnson and their vice presidents. But it did not address the issue of a president wrongly believing he was capable to serve. Hours after his stroke, after all, Eisenhower wanted to attend a state dinner, shouting at his family, “there’s nothing the matter with me! I am perfectly all right!”71 The discretion vested in the vice president was less empowering than paralyzing—after Ike’s

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heart attack, Nixon wrote, “I realized that my own position . . . had become extremely delicate; my every move during this period had to be made with caution, for even the slightest misstep could be interpreted as an attempt to assume power.”72 The thinnest of lines separated continuity and coup. Indeed, Garfield’s vice president, Chester Arthur, came to Washington only briefly after the president was shot, and only upon formal request by the cabinet to do so. Arthur refused to exercise any power, fearing he would be accused of killing the president by so doing.73 Woodrow Wilson’s vice president, Thomas Marshall, was likewise so concerned about being termed a “usurper” that he expressed relief at having been misled about Wilson’s debilitating stroke in 1919. “I was afraid to ask about it,” he said, “for fear some censorious soul would accuse me of longing for his place.”74 This sort of drama is not obviated by the Twenty-­fifth Amendment—one reason, perhaps, why these questions have played out more on Hollywood screens than in real life.75 Indeed, according to law professor Cass Sunstein, “the real risk is not that the 25th Amendment will be invoked when it shouldn’t, but that it won’t be invoked when it should.”76 Including the cabinet helps obviate potential charges of self-­interest associated with the vice president’s acting alone. But some presidency scholars worried that usurpation was a real possibility. If a group had authority to remove the President, Richard Neustadt argued in opposing the Twenty-­fifth Amendment, it would hang “over the head of every incoming President.”77 And should presidents see themselves as competent even as the vice president and cabinet do not, flurries of rival declarations could ensue. What if the president fired the whole cabinet, and it was unclear whether the department heads were actually holding office at the time of the disability vote? This basic problem was foreseen as early as 1841. In such a case, a senator asked of the presidency, “was it to vibrate between the two claimants?”78 More generally, what should count as a disability remains undefined. The drafters of the Twenty-­fifth Amendment were nervous about specificity, concerned that advances in medical technology could overtake whatever terminology they chose.79 But events in 2017 helped clarify what their language did not include. Just four months after Donald Trump’s inauguration, conservative columnist Ross Douthat argued in favor of invoking the amendment: “leaving a man this witless and unmastered in an office with these powers and responsibilities is an act of gross negligence.”80 Douthat cited Trump’s “incapacity to really govern, to truly execute the serious duties that fall to him to carry out,” as “testified to daily . . . [by] the men and women who serve around him in the White House and the cabinet.” By the fall of 2018, one senior official had taken anonymously to the New York Times to declare the existence of an intra-­administration “resistance” to Trump’s impetuosity. “Given the instability many witnessed,” he wrote, “there

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were early whispers within the cabinet of invoking the 25th Amendment,” rejected to avoid precipitating a constitutional crisis.81 Still later, former FBI deputy director Andrew McCabe confirmed that such whispers got louder within the Justice Department after Trump’s abrupt dismissal of FBI director James Comey in May 2017. “Discussion of the 25th amendment,” he told CBS, occurred when Deputy Attorney General Rod Rosenstein “raised the issue. . . . [Rosenstein] was definitely very concerned about the president, about his capacity, and about his intent at that point in time. He was discussing  .  .  . whether or not other cabinet members . . . shared his belief that the president was—was really concerning.”82 There is no evidence that any member of the actual cabinet had such conversations—but the bipartisan reaction was telling. Sen. Lindsey Graham, a loyal Trump ally, called the possibility “beyond stunning” while condemning an “administrative coup.”83 But even Trump’s critics tended to dismiss the speculation as beyond the scope of the amendment, confirming that inability really meant disability, and that disability did not mean suitability—nor laziness, nor lack of competence nor, for that matter, something resulting from the commission of high crimes and misdemeanors. Sunstein argues a president’s incapacity would have to be on a par with the other eventualities contemplated in the amendment: death and removal from office. Nelson likewise holds that its scope must be limited to “severe mental illness and physical incapacity, as well as more far-­fetched situations such as a president being kidnapped by an enemy power.”84

The Trump Crucible The events of the 2016 election and Trump presidency placed not just the Twenty-­fifth Amendment but impeachment back on the national agenda. The House Democratic majority elected in 2018 found itself at a true crossroads— caught between the widespread anger at Trump within its partisan base and the high bar of “high crimes,” all poised on the knife’s-­edge of political reality. Claims of impeachable offenses began on the first day of President Trump’s term: because he did not divest himself of his businesses and brands, he was accused of violating the emoluments clauses of the Constitution when those companies transacted financially with governmental entities.85 Even during the transition serious allegations arose, given the intelligence community’s conclusion that Russia made significant efforts to influence the course of the 2016 presidential election in Trump’s favor. Had the Trump campaign known of this, and helped it along? Had the president subsequently sought to obstruct justice by preventing a full inquiry—for instance, by asking FBI director Comey for favorable treatment of Trump loyalists under investigation, and then firing him when that treatment was not forthcoming? Robert Mueller, a well-­respected

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former FBI director himself, was appointed as special counsel in the wake of Comey’s firing with a mandate to look into such matters. Other scandals also emerged. His fervent denials to the contrary, Trump paid hush money to two past mistresses during the 2016 campaign, morally dubious in various ways but also potential campaign finance violations. Another 2016 activity denied then (and afterward under oath) was that well into the campaign the Trump Organization was negotiating with Russian interests in hopes of building a lucrative skyscraper in Moscow. During the transition, Trump’s son-­in-­law, Jared Kushner, reportedly asked Russian officials for secure communications facilities that could not be tracked by American intelligence; Kushner became a key Trump adviser, granted a top secret security clearance by presidential fiat over the objections of career security experts and his then-­chief of staff. All this played out against the background of general administrative chaos, driven by the president’s inflammatory rhetoric against a wide range of personal and institutional adversaries, often delivered in insulting all-­caps screeds on social media. The president made little effort to expand his constituency beyond the 46 percent of the popular vote he received in 2016, and despite the nation’s strong economic performance (prior to the coronavirus crisis, at least) his approval ratings showed it, hovering below 45 percent. Washington Post columnist Max Boot argued that the March 2019 testimony of Trump’s personal attorney, Michael Cohen, placed Trump at the center of “five felonies,” from suborning perjury to campaign finance violations to bank fraud.86 The Atlantic’s Appelbaum made a far broader case based on Trump’s “concerted challenge to the separation of powers, to the rule of law, and to the civil liberties enshrined in our founding documents.” He thought Trump met the standard set by a House Judiciary Committee staff report during the Watergate investigation: that impeachment should take aim at “undermining the integrity of office, disregard of constitutional duties and oath of office, arrogation of power, abuse of the governmental process, adverse impact on the system of government.”87 Democratic House leaders were nonetheless cautious about rushing to invoke the “I” word. The Nixon impeachment provided a road-­map for careful legislative investigation into presidential behavior, while the Clinton impeachment showed that a process widely seen as illegitimate could actually bolster the popularity of the president. Speaker Nancy Pelosi said in March 2019 that she thought Trump was “ethically unfit [to be president]. Intellectually unfit. Curiosity-­wise unfit.” Yet she added: “I’m not for impeachment. . . . [U]nless there’s something so compelling and overwhelming and bipartisan, I don’t think we should go down that path, because it divides the country.”88 House Judiciary Committee chair Jerrold Nadler said in late February 2019 that “we have unambiguous evidence that the president has committed a crime,” apparently referring to the hush money payments, but that “we’ve got a ways to go

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yet” before considering impeachment.89 Some thought alleged crimes that occurred before Trump’s presidency or involved personal sexual activities should be off limits. Others felt Trump had failed to act on his most brazen pronouncements about evading democratic constraints. Trump subordinates’ frequent willingness to simply ignore his stated wishes worked in his favor: if abuses of power manifested themselves only in abusive rhetoric, could they be impeachable offenses? Some—notably including Trump’s second attorney general, William Barr, if few Democrats—even argued that the president’s powers as chief executive meant that it was by definition impossible for the president to obstruct justice by seeking to manage Justice Department investigations, even those into his own behavior.90 All that seemed to confirm a high bar to impeachment, and the results of the Mueller investigation did not scale it. The 448-­page Mueller report, released in redacted form on April 18, first chronicled efforts by the Russian government and its agents to manipulate the 2016 election on behalf of then-­candidate Trump, and President Trump’s later efforts to obstruct the investigation into that manipulation. Mueller identified more than 140 contacts between Russia, Trump, and more than a dozen of Trump’s associates. One campaign aide even confided that (in the report’s words) the “Trump Campaign had received indications from the Russian government that it could assist the Campaign through the anonymous release of information that would be damaging to Hillary Clinton.”91 However, while numerous Russians were indicted, Mueller concluded there was insufficient evidence to bring charges of criminal conspiracy against Trump or his family. The report also detailed a dozen instances where the president had sought to interfere with the investigation into his conduct, including issuing directives to fire Mueller and to write false memos denying the fact; such actions caused White House counsel Donald McGahn to threaten to resign, telling then-­W hite House chief of staff Reince Preibus that the president had asked him to “do crazy shit.”92 But Justice Department regulations prevented Mueller from bringing a criminal indictment against the president; Mueller thus did not make a recommendation about whether such charges were warranted. He did hold a press conference in late May, frustrated by Attorney General Barr’s misleading public claims that the report had cleared the president of wrongdoing. There Mueller said that “if we had had confidence that the president clearly did not commit a crime, we would have said so.”93 Trump, who had originally described the report as a “complete and total EXONERATION,” decided it was instead a “total ‘hit job.’”94 Even so, Pelosi continued to insist that “I don’t want to see him impeached” (though, as she told her colleagues in June 2019, “I want to see him in prison”).95 In mid-­September, though, news broke that a member of the intelligence community had filed a “whistleblower report” (as required by law) raising concerns about the president’s behavior regarding the $391 million in security

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aid for Ukraine appropriated by Congress earlier in the year. In a July 25 phone call with Ukraine’s president Volodymr Zelensky, Trump had switched gears from pleasantries to brass tacks when Zelensky mentioned needed weaponry: “I would like you to do us a favor though,” he said to his counterpart.96 There were actually two favors. First, Trump wanted Zelensky to investigate the hacking of the Democratic National Committee’s computers during the 2016 U.S. election. Despite Mueller’s recent findings (and those of the wider U.S. intelligence community), it was not Russia at all, Trump implied: “They say a lot of it started with Ukraine.” The president seemed to believe that Crowdstrike, an American company, was actually Ukrainian, and that it was in physical possession of the DNC’s data: “The server, they say Ukraine has it. . . . Whatever you can do, it’s very important that you do it.” This theory, though a staple of right-­wing media, had long been discredited, including to the president directly by his own chief advisor for homeland security.97 The second favor—“the other thing,” as Trump told Zelensky—was for Ukraine to open an investigation into former vice president Joseph Biden and his son Hunter. The elder Biden was an announced candidate for the 2020 Democratic Party presidential nomination, and contemporary polling showed him beating Trump comfortably nationally and in key states. For his part, in 2014 the younger Biden had joined the board of Burisma Holdings, Ukraine’s largest private energy company, with no obvious qualifications for the job other than his father’s high office. Burisma’s pro-­Russian ownership had long been corrupt. But investigations into its managing oligarchs had stalled. In 2015 and 2016 Joe Biden, speaking for the Obama administration, the European Union, and the International Monetary Fund, publicly and privately pressured Ukraine to step up anticorruption efforts. In 2018, he boasted in a speech that he had gone so far as to threaten an end to U.S. military aid to Ukraine if its notably moribund prosecutor general was not replaced. Trump’s thesis was apparently that Hunter Biden was a cash conduit into the family and that Joe Biden’s efforts in Ukraine had aimed to preempt any investigation into his son’s malfeasance. He told Zelensky, “I heard you had a prosecutor who was very good and he was shut down and that’s really unfair. . . . There’s a lot of talk about Biden’s son, that Biden stopped the prosecution and a lot of people want to find out about that. So whatever you can do with the [U.S.] Attorney General would be great. Biden went around bragging that he stopped the prosecution so if you can look into it. . . . It sounds horrible to me.” This was wrong—indeed, the opposite of the known facts with regard to the vice president’s motives and the skillset of the Ukrainian prosecutor in question. But Zelensky needed two things from Trump: additional military aid and a bilateral meeting in the White House, to demonstrate to a threatening Russia that he had unswerving U.S. support. And as early as May the United States had made clear to Ukraine officials that the president would not meet

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with Zelensky until he saw how Zelensky chose to act. Diplomatic careerists were sidelined in favor of an ad hoc group working closely with Rudy Giuliani, the former mayor of New York who was now one of Trump’s personal attorneys and who had extensive business interests in Ukraine. In June, at the behest of White House chief of staff Mick Mulvaney, a Trump aide told the president’s budget director that “we need to hold . . . up” military aid prepared for Ukraine. State Department officials objected. “I think it’s crazy to withhold security assistance for help with a political campaign,” one told EU ambassador Gordon Sondland. They were overridden. The president’s call and his apparent effort to obtain personal political benefits from a foreign government, along with the continued hold-­up of the aid package, alarmed national security staff. Several of them contacted lawyers working for various intelligence agencies and, ultimately, one “blew the ­whistle” to the inspector general for the intelligence community. Around the same time, news reports broke revealing the suspension of aid, prompting three House committees to announce a joint investigation of the matter on September 9 (the aid itself was quietly released two days later). Then, after a sustained but unsuccessful White House effort to block the whistleblower’s complaint from going to Congress (as required by law), the House Intelligence Committee made it public on September 17. This set off the political firestorm that ultimately led to impeachment, unearthing the evidence underlying the sequence traced above.98 On September 24 Pelosi announced a formal impeachment inquiry, saying that Trump was “calling upon a foreign power to intervene in his election. This is a breach of his constitutional responsibilities.”99 Testimony continued through October, and on Halloween the full House voted to officially authorize impeachment proceedings. The formal inquiry would be led by House Intelligence chair Adam Schiff. As the investigation continued, the president and his lawyers continued to complain bitterly about the hearings and declined to take any formal part. On October 8, in fact, the White House counsel told House leaders that “your inquiry lacks any legitimate constitutional foundation, any pretense of fairness, or even the most elementary due process protections” and thus “President Trump cannot permit his Administration to participate in this partisan inquiry.” The president continued his running online commentary, though, repeating (more than twenty times) that his phone call with Zelensky was “perfect” and tweeting ad hominem attacks—on November 21, that “Corrupt politician Adam Schiff ’s lies are growing by the day. Keep fighting tough, Republicans, you are dealing with human scum who have taken Due Process and all of the Republican Party’s rights away from us during the most unfair hearings in American History.” More substantively, the president’s allies argued that since the aid to Ukraine had in fact been released before the end of the fiscal year, no harm had been

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done. Indeed, unlike Barack Obama, Trump had authorized Ukraine to receive lethal weaponry such as antitank missiles. Nor did Trump withhold his other prize, a bilateral meeting, because he ultimately met with Zelensky at the U.N. General Assembly in late September, an encounter at which the Ukrainian leader said he felt “no pressure” during his phone call with Trump. Republicans held that the president should, indeed, be concerned with corruption in foreign nations and that many prior incumbents had been willing to use financial leverage to force behavioral changes abroad. No crime in the criminal code had been charged. And the White House refusal to provide documents or witnesses was justified by executive privilege; in any case, they argued, the House should have taken the administration to court to clarify what material should be provided and what kept confidential. In short, they said, the circumstances being investigated fell well short of the “compelling and overwhelming and bipartisan” standard for impeachment Pelosi had set in March. Rep. Doug Collins summed up his side’s position memorably, if with dubious syntax: the process, he charged, was “the most partisan impeachment on the most less facts of any we’ve seen.”100 For his part, Trump sent a remarkable letter to Pelosi on the eve of the impeachment vote, calling it “invalid,” “preposterous,” and “dangerous.”101 Critics countered that the facts of a problematic quid pro quo were not in doubt. They argued that the president had in fact violated the Impoundment Control Act by freezing the aid, as correspondence between the Defense Department and the president’s budget office made clear; that the president had only released the funds because his illegal actions had become public knowledge; and that Trump had shown no interest in corruption generally, only in the Biden family. Although Trump had seen Zelensky, a handshake on the sidelines of a large international gathering did not constitute the direct endorsement a one-­on-­one meeting in the Oval Office would have symbolized. Waiting for the courts to sort out claims of confidentiality undermined Congress’s constitutional status as the sole arbiter of impeachment. In any case judicial proceedings would have pushed the matter beyond the 2020 election—problematic when the charges revolved around efforts to manipulate that election. In the end, impeachment itself proceeded with dramatic flair but little suspense. By a largely party-­line vote on the evening of December 18, 2019, House members asserted that the president’s behavior had “demonstrated that he will remain a threat to national security and the Constitution if allowed to remain in office” and that in seeking to pressure the government of Ukraine to investigate the Bidens he had “acted in a manner grossly incompatible with self-­governance and the rule of law.” The president was also charged with obstruction of Congress—with an “unprecedented, categorical, and indiscriminate defiance of subpoenas” in his refusal to provide the House with evidence and testimony relevant to its investigation.102

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Republicans controlled the Senate, and Majority Leader Mitch McConnell made clear early on that there was “zero chance” that Trump would be convicted; indeed, he promised “total coordination” with the White House.103 Certainly it was never likely that the twenty GOP senators needed to reach a two-­thirds margin would break with the president, even if year-­end polls indicated that a small majority of Americans did want Trump removed from office. While complaining that the House had not gathered enough information, senators nevertheless voted on party lines to oppose requesting new documents or calling new witnesses. This shortened the trial, which took place in installments over three weeks in early 2020. The general arguments traced above were relocated from the House chamber to the Senate’s, though with increasing rhetorical urgency as new information continued to emerge. Most notable were White House emails clarifying the freeze on Ukraine’s security assistance and a draft memoir by former national security advisor John Bolton. Bolton’s unpublished book reportedly undercut Trump’s repeated claim that the freeze was unrelated to his demands for investigations into the two Bidens.104 Yet Bolton’s offer to testify was rejected by the Senate majority—perhaps because Trump’s behavior, in the end, was not subject to serious doubt. The question was whether it constituted bribery or another high crime. On February 5, fifty-­two senators concluded it did not.

Impeachment in Prospect The substantive question of what constitutes an impeachable offense cannot be wholly separated from purely pragmatic politics. Recalling Jefferson’s comment regarding impeachment as a “formidable weapon for the purpose of a dominant faction,” one problem facing Democrats in 2019 and 2020 was that they were not in fact a dominant faction. President Trump celebrated Christmas Day 2019 by asking the nation, “Why should Crazy Nancy Pelosi, just because she has a slight majority in the House, be allowed to Impeach the President of the United States?” The Senate vote was also mostly on party lines, with even swing-­state Democrats voting to remove the president from office. Only one Republican, Sen. Mitt Romney of Utah, voted to do the same.105 In the modern era of polarized stalemate, dominance may be unattainable. But perhaps in fact the opposite problem is the more salient: as early as 1820, Jefferson himself concluded that “impeachment is an impracticable thing, a mere scarecrow.”106 In the first days of the republic, talk of impeachment was a common partisan rallying point, even as actual impeachment languished. These days its status as the nuclear weapon of congressional oversight raises the question of mutual assured destruction. Raising the specter of impeachment as part of a permanent campaign may rouse the base while alienating the wider spectrum of voters required to build an actual governing consensus—or, ironically, a consensus for impeachment itself.

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How might that occur—especially when, given the long-­term rise of an “imperial” presidency, the ability to check the president is more important than ever?107 The answer may lie in a robust return to elected officials taking seriously the responsibilities of our constitutional system of separated institutions sharing powers. Sometimes presidents seem to take the high bar of impeachment as a useful weapon for expanding their powers—indeed, to taunt Congress with the notion that impeachment is the only remedy legislators have to constrain presidential behavior. Arguing on behalf of Harry Truman’s executive order nationalizing the steel mills during the Korean War, the assistant attorney general told a district judge that there were only “two limitations on the executive power. One is the ballot box and the other is impeachment.”108 Nixon’s attorney general Richard Kleindienst likewise set out an expansive view of executive privilege. The information available to Congress would be decided “by the president of the United States and only by the president of the United States.” If Congress didn’t like it, well, “you have an impeachment proceeding.” The president “is not above the law,” Nixon’s lawyers told the Supreme Court in U.S. v. Nixon, but “as the president, the law can be applied to him in only one way, and that is impeachment.”109 Part of that statement referred to the longstanding Justice Department policy noted in the Mueller Report—that a sitting president cannot be criminally indicted (though a former president certainly can be). This doctrine holds even for clear-­cut, serious crime—if, say, the president shot and killed someone in broad daylight on Fifth Avenue. In such a case, as Phillip Bobbitt argues, “If Congress has become so degraded that such an impeachment and conviction did not occur, the country would face many more profound problems than that of postponing the indictment of the president.”110 The Justice Department’s position is hardly undisputed.111 But it does funnel questions of criminality back to congressional consideration. During the Trump impeachment, his allies argued that a statutory crime or “crime-­like conduct” was required for impeachment; indeed, law professor Alan Dershowitz claimed that the Framers’ deletion of “maladministration” as grounds for impeachment meant that “abuse of power” was itself illegitimate.112 That claim was clearly inaccurate, even nonsensical, when it came to founding intent or historical practice.113 Indeed, if anything the Trump articles retraced Congress’s steps to an earlier constitutional crossroads, reclaiming the notion that abusing power (and abusing Congress for that matter) can be impeachable. Legislators must make their own calculations on that score—and, in conclusion, it is worth stressing that Congress has many constraining tools beyond, and before, impeachment. As Charles Black noted in 1974, “Congress is by no means in the position of having to sit idly by, counting up grievances, until time comes to call a council of elders and sharpen the impeachment spear.”114

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Lawmakers have the ability, if not always the will, to punish presidential misbehavior and impede its recurrence. Their toolbox starts but hardly ends with the power of the purse. It involves being willing to summon the institutional pride to push back against overreach— whether it involves the war powers, trade, the self-­serving interpretation of vague statutory language, or the dubious invocation of “national emergency.” It involves oversight and investigation. Indeed, when it comes to the latter, Congress should do its own work, rather than outsourcing it to prosecutors. Thus the voluminous requests for information sent by House committees to the Trump administration (and beyond it) are a welcome step.115 Even here, the administration took the opportunity to argue that it need not provide any executive branch documentation not relevant to “legislating”—as defined by the White House, apparently— unless the president is being impeached. So far the courts have correctly rejected this claim; in July 2020, the Supreme Court reaffirmed the House’s “indispensable” power “to secure needed information,” since without it “Congress would be unable to legislate wisely or effectively.”116 But other judges have suggested courts cannot enforce legislative subpoenas, and the Supreme Court itself worried about approaches that “leave essentially no limits on the congressional power to subpoena the President’s personal records.”117 The Senate’s dismissal of presidential stonewalling raised by Trump’s second article of impeachment may set troubling precedent: legislators need information to do their jobs properly, and they need to protect their ability to do so. That job will rarely be to remove a chief executive from office. But—at least if used to build legislative consensus rather than script campaign advertising— such work-­intensive oversight can still place useful limits on presidential behavior. Systematic scholarship shows that congressional investigation does indeed lead to change.118 Statutory efforts to constrain Andrew Johnson may have had more effect on his ability to do harm than the ultimate impeachment proceedings did. And the “resurgence regime” that arose from Watergate and the Vietnam War reset the rules of policymaking as a way of reining in presidential unilateralism.119 That latter effort foundered over time, as Congress retreated from its commitment to its own constitutional prerogatives. Yet such a retreat is not inevitable. The choices made in Trump’s case will, as its predecessors have done, refine our working definition of high crimes and misdemeanors. But the crossroads of impeachment are really the opportunity for Congress to choose the road that leads to its institutional relevance. The question is whether Congress can and will take those duties seriously. In January 2021, as this book was nearing publication, Donald Trump became the only president to be impeached twice. The House held that his repeated, inflammatory demands to overturn his 2020 election loss constituted an

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“incitement of insurrection,” culminating in the January 6 attack on the U.S. Capitol by a mob seeking to disrupt the formal certification of the electoral vote. On February 13, Trump was again acquitted. The 57–43 vote to convict marked the first Senate majority to do so since 1868, but fell short of the required two-thirds margin. .

Notes 1. James Madison, Debates on the Adoption of the Federal Constitution, ed. Jonathan Elliot (Philadelphia: J. B. Lippincott, 1876), 340. 2. The speakers quoted here are Charles Pinckney and Gouverneur Morris, respectively. Ibid., 340. 3. James Madison, Federalist No. 37, in The Federalist Papers, ed. Clinton Rossiter (New York: Mentor, 1961). 4. Alexander Hamilton, Federalist No. 70, in ibid. 5. Madison, Debates, 140. 6. From the fifth letter of “Cato,” November 22, 1787; see http://​teachingamericanhistory​ .org​/library​/document​/cato​-­­v/. This is a close variant of an aphorism in Richard Hooker’s 1594 tome Of the Lawes of Ecclesiastical Politie. 7. Keith  E. Whittington, “A Formidable Weapon of Faction? The Law and Politics of Impeachment,” Law and Social Inquiry, forthcoming, 9. Available at https://​ssrn​.com​ /abstract​=​3328981. 8. Ibid., 18. 9. Ezra Klein, “The Case for Normalizing Impeachment,” Vox, November 30, 2017, https://​www​.vox​.com​/2017​/11​/30​/16517022​/impeachment​-­­donald​-­­trump. 10. Yoni Appelbaum, “Impeach Donald Trump,” Atlantic (March 2019), https://​www​ .theatlantic​.com​/magazine​/archive​/2019​/03​/impeachment​-­­trump​/580468/. 11. Laurence H. Tribe, “Trump Must Be Impeached. Here’s Why,” Washington Post, May 13, 2017, https://​www​.washingtonpost​.com​/opinions​/trump​-­­must​-­­be​-­­impeached​-­­heres​-­­why​ /2017​/05​/13​/82ce2ea4​-­­374d​-­­11e7​-­­b4ee​-­­434b6d506b37​_story​.html​?utm​_term​=​.23d7a663bae3. 12. The motion was by Hugh Williamson and William Davie; Madison, Debates, 149. 13. Roger Sherman and John Dickinson, respectively; ibid., 147. 14. Ibid. 15. See Richard Neustadt’s famous formulation in Presidential Power and the Modern Presidents (New York: Free Press, 1990), 29. Emphasis in original. 16. Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Vintage Books, 1996), chap. 9. 17. Madison, Debates, 335. 18. Charles Pinckney and Edmund Randolph, respectively; ibid., 341–42. 19. Drawn from Emily Field van Tassel and Paul Finkelman, Impeachable Offenses: A Documentary History from 1787 to the Present (Washington, D.C.: CQ Press, 1999), 18. 20. Thus prohibiting Congress from using the regular legislative process to punish specific individuals. 21. Madison, Debates, 528; see too Van Tassel and Finkelman, Impeachable Offenses, 28–29. Iredell quoted in Raoul Berger, Impeachment: The Constitutional Problems (Cambridge, Mass.: Harvard University Press, 1973), 262n73. 22. Van Tassel and Finkelman, Impeachable Offenses, 43–54.

112  A ndre w Ruda le v ige 23. Quoted in Jeffrey Engel, “Introduction,” in Impeachment: An American History, by Jeffrey Engel, Jon Meacham, Timothy Naftali, and Peter Baker (New York: Modern Library, 2018), ix. 24. Quoted in Van Tassel and Finkelman, Impeachable Offenses, 59. 25. Quoted in Laurence Tribe and Joshua Matz, To End a Presidency: The Power of Impeachment (New York: Basic Books, 2018), 154. 26. The single affirmative vote was that of Josiah Quincy of Massachusetts, who had brought the motion in the first place. He argued that Jefferson had misused the appointment power by forcing someone who wanted to leave a post to remain in office. See ibid., 151–52. 27. See Daniel Walker Howe, What Hath God Wrought: The Transformation of America, 1815–1848 (New York: Oxford University Press, 2009), 572, 590–91. 28. Quoted in Philip B. Kunhardt Jr., Philip B. Kunhardt III, and Peter W. Kunhardt, The American President (New York: Riverhead Books, 1999), 211. 29. Tribe and Matz, To End a Presidency, 19–21. 30. For a taste of the voluminous commentary associated with each episode preceding Trump’s impeachment, see Engel et al., Impeachment: An American History. For longer treatments and bibliographies, see respectively: David O. Stewart, Impeached: The Trial of President Andrew Johnson and the Fight for Lincoln’s Legacy (New York: Simon & Schuster, 2009) and Brenda Wineapple, The Impeachers (New York: Random House, 2019) on Johnson; Stanley Kutler, The Wars of Watergate (New York: Norton, 1992) on Nixon; and Ken Gormley, The Death of American Virtue (New York: Crown, 2010) on Clinton. 31. Quoted in Berger, Impeachment, 262n78. 32. Jon Meacham, “Andrew Johnson,” in Engel et al., Impeachment, 49, 57. 33. Ibid., 58. 34. E.  P. Whipple, “The Johnson Party,” Atlantic (September 1866), https://​ www​ .theatlantic​.com​/magazine​/archive​/1866​/09​/the​-­­johnson​-­­party​/518748/. 35. Quoted in Van Tassel and Finkelman, Impeachable Offenses, 232. 36. Stewart, Impeached, 84–85. 37. Quoted in Van Tassel and Finkelman, Impeachable Offenses, 247. 38. Article X, quoted in Van Tassel and Finkelman, Impeachable Offenses, 232. 39. Quoted in Berger, Impeachment, 262–63. 40. Quoted in Meacham, “Andrew Johnson,” 78. 41. John F. Kennedy, Profiles in Courage (New York: Harper, 1956), chap. 6. But there were other, less courageous reasons not to remove Johnson from office. For one thing, it would have elevated Sen. Ben Wade to the presidency, which even some Republicans thought unwise—partly because of Wade himself, partly because of its potential complications for nominating the popular U. S. Grant to the office later in 1868. Better, perhaps, to run out the short time left in Johnson’s term. 42. Quoted in David Priess, How to Get Rid of a President (New York: PublicAffairs, 2018), 200. 43. Appelbaum, “Impeach Trump Now.” See also Keith Whittington, “Bill Clinton Was No Andrew Johnson: Comparing Two Impeachments,” University of Pennsylvania Journal of Constitutional Law 2 (2000): 422–65. 44. “The President’s News Conference,” August 29, 1972, https://​www​.presidency​.ucsb​ .edu​/documents​/the​-­­presidents​-­­news​-­­conference​-­­90. 45. Kutler, Wars of Watergate; Carl Bernstein and Bob Woodward, All the President’s Men (New York: Simon & Schuster, 1974). 46. H. R. Haldeman, diary entry of June 20, 1972, Richard M. Nixon Presidential Library, https://​www​.nixonlibrary​.gov​/sites​/default​/files​/virtuallibrary​/documents​/haldeman​

The Crossroads of Impeachment  113 -­­diaries​/37​-­­hrhd​-­­audiocassette​-­­ac22b​-­­19720620​-­­pa​.pdf; Stanley  I. Kutler, ed., Abuse of Power: The New Nixon Tapes (New York: Free Press, 1997), 51. 47. Transcribed in John W. Dean, The Nixon Defense (New York: Viking, 2014), 53–63. 48. Ibid., 123. 49. Ibid., 321. This is often termed “the cancer on the presidency” conversation, from an earlier cautionary comment from Dean to Nixon. 50. As Ehrlichman said, “We financed a hell of a lot of stuff of all kinds with that money. That opens a lot of collateral matters the minute you get into that.” See Kutler, Abuse of Power, 238–39. 51. See Andrew Rudalevige, The New Imperial Presidency (Ann Arbor: University of Michigan Press, 2005), 62–74; Kutler, Wars of Watergate. 52. Timothy Naftali, “Richard Nixon,” in Engel et al., Impeachment, 92. 53. For the full text of the articles see Van Tassel and Finkelman, Impeachable Offenses, 261–66. The Senate committee, chaired by Sam Ervin (D-­NC), was formally the Select Committee on Presidential Campaign Activities. 54. Much of this section is drawn from Andrew Rudalevige, “The Broken Places: The Clinton Impeachment and American Politics,” in 42: Inside the Clinton Presidency , ed. Michael Nelson, Barbara A. Perry, and Russell L. Riley(Ithaca, N.Y.: Cornell University Press, 2016). 55. Clinton also argued that the president could not be subject to a civil lawsuit while still in office, but that stance was rejected by the Supreme Court in Clinton v. Jones, 520 U.S. 681 (1997). 56. Quoted in James E. Rogan, Catching the Flag (New York: WND Books, 2011), 80. 57. One Republican voted against Article II (perjury in the Jones deposition), resulting in a 20–17 vote in favor. The other articles passed 21–16. 58. The parliamentary motion allowing a censure substitute failed with 204 votes in favor and 230 opposed. Article I passed, 228–206; Article II failed, 205–229; Article III passed, 221–212; and Article IV failed, 148–285. 59. Some scholars, notably Bruce Ackerman, had argued that an impeachment voted in one Congress (the 105th, 1997–98) was not valid in the next (the 106th, 1999–2000), but this never became a serious impediment to moving forward with the trial. 60. Gormley, Death of American Virtue, 617. 61. Quoted in Peter Baker, The Breach: Inside the Impeachment and Trial of William Jefferson Clinton, paperback ed. (New York: Berkley Books, 2001), 332–33. 62. Quoted in ibid., 323. 63. Former representative Wayne Hays, quoted in Merrill McLoughlin, ed., The Impeachment and Trial of President Clinton: The Official Transcripts, from the House Judiciary Committee Hearings to the Senate Trial (New York: Times Books/Random House, 1999), 81 (see, generally, 67ff.). 64. See Stein’s oral history dated May 20–21, 2004, Miller Center, University of Virginia, available at https://​millercenter​.org​/the​-­­presidency​/presidential​-­­oral​-­­histories​/john​-­­hilley ​-­­and​-­­lawrence​-­­stein​-­­oral​-­­history​-­­john​-­­hilley. 65. Charles Black Jr., Impeachment: A Handbook (New Haven, Conn.: Yale University Press, 1974), 39–40. 66. For a broad discussion see Michael Nelson, “‘The Firing, Retiring, and Expiring of Presidents,’” in The Presidency and the Political System, 11th ed., ed. Michael Nelson (Washington, D.C.: CQ Press, 2018); Priess, How to Get Rid of a President. 67. In August 1944 Harry Truman told an associate, “I am concerned about the President’s health. I had no idea he was in such a feeble condition . . . I’m very much concerned about him.” Quoted in Priess, How to Get Rid of a President, 99.

114  A ndre w Ruda le v ige 68. Nelson, “Firing, Retiring, and Expiring of Presidents,” 544. See also John D. Feerick, The Twenty-­fifth Amendment: Its Complete History and Applications, 3rd ed. (New York: Fordham University Press, 2013), 3. 69. The Twenty-­fifth Amendment also clarified another ambiguity in the original wording of Article II, namely the authority of the vice president after a president left office because of impeachment and removal, death, or resignation. Article II, as excerpted above, leaves unclear if “the said office”—i.e., the presidency—devolves on the vice president, or if merely that office’s “powers and duties” do. If the latter, the vice president might serve only as a temporary fill-­in until a new election could be scheduled. But starting with John Tyler in 1841, the former proved to be the case in practice. The Twenty-­fifth Amendment settled the point in law, too, stating simply that “the Vice President shall become President.” In so doing, as Sen. Sam Ervin put it in 1964, it “lay to rest the constitutional ghost that has been stalking to and fro in America ever since” Tyler’s ascension. Quoted in Feerick, 25th Amendment, 77. 70. Eisenhower’s letter was sent in February 1958. See Stephen Ambrose, Eisenhower, vol. 2: The President (New York: Simon & Schuster, 1984), 436–41. 71. Ibid., 437. 72. Nixon evaded not just interviewers but photographers, fearing that even his facial expression would be misinterpreted. See Richard M. Nixon, Six Crises (1962; rpt. New York: Touchstone, 1990), 134–35. 73. Feerick, 25th Amendment, 8–10. 74. Priess, How to Get Rid of a President, 147; and see Nelson, “Firing,” 556. 75. See, inter alia, Air Force One (1997), White House Down (2013), Olympus Has Fallen (2013). 76. Cass R. Sunstein, Impeachment: A Citizen’s Guide (Cambridge, Mass.: Harvard University Press, 2017), 145. 77. Quoted in Feerick, 25th Amendment, 62. 78. Sen. William Allen, quoted in Feerick, 25th Amendment, 7. There may also be logistical barriers to the amendment’s implementation. On March 30, 1981, for example, Ronald Reagan was shot and seriously wounded in an assassination attempt. At the time, Vice President George H. W. Bush was in Texas, with unreliable communication links once airborne. Members of the cabinet were physically scattered and, so early in the administration, still feeling each other out. Secretary of State Al Haig’s infamous (and constitutionally incorrect) declaration that “as of now, I am in control here,” pending Bush’s return to Washington, only added to the confusion. All this helped to squash immediate talk of utilizing the Twenty-­fifth Amendment. So did White House aide Dick Darman’s quiet removal from the Situation Room of draft documents concerning the Twenty-­fifth Amendment prepared by White House counsel Fred Fielding. Richard Reeves, President Reagan: The Triumph of Imagination (New York: Simon & Schuster, 2005), 37–39; Priess, How to Get Rid of a President, 172–74; Sunstein, Impeachment, 135–40. 79. Nelson, “Firing, Retiring, and Expiring of Presidents,” 556. 80. Ross Douthat, “The 25th Amendment Solution for Removing Trump,” New York Times, May 16, 2017, https://​www​.nytimes​.com​/2017​/05​/16​/opinion​/25th​-­­amendment​ -­­trump​.html. 81. Anonymous, “I Am Part of the Resistance Inside the Trump Administration,” New York Times, September 5, 2018, https://​www​.nytimes​.com​/2018​/09​/05​/opinion​/trump​ -­­white​-­­house​-­­anonymous​-­­resistance​.html. 82. Adam Goldman and Matthew Haag, “McCabe Says Justice Department Officials Had Discussions About Forcing Trump Out,” New York Times, February 14, 2019, https://​www​ .nytimes​.com​/2019​/02​/14​/us​/politics​/mccabe​-­­trump​.html; Grace Segers, “What Andrew

The Crossroads of Impeachment  115 McCabe Told ’60 Minutes’ About Trump and the 25th Amendment,” CBS News, https://​ www​.cbsnews​.com​/news​/what​-­­andrew​-­­mccabe​-­­told​-­­60​-­­minutes​-­­about​-­­trump​-­­and​-­­the​ -­­25th​-­­amendment/. This seemed to support earlier reporting that had been strongly denied by administration officials, which included the deputy AG considering whether to tape the president, to build evidence of his unfitness—see, e.g., Adam Goldman and Michael S. Schmidt, “Rod Rosenstein Suggested Secretly Recording Trump and Discussed 25th Amendment,” New York Times, September 18, 2018, https://​www​.nytimes​.com​/2018​/09​/21​ /us​/politics​/rod​-­­rosenstein​-­­wear​-­­wire​-­­25th​-­­amendment​.html. 83. Felicia Sonmez and Matt Zapotosky, “Senate Panel Will Probe McCabe’s Claim That Rosenstein Raised Possibility of Ousting Trump through 25th Amendment, Graham Says,” Washington Post, February 17, 2019, https://​www​.washingtonpost​.com​/politics​ /senate​-­­panel​-­­will​-­­investigate​-­­mccabes​-­­claim​-­­that​-­­rosenstein​-­­raised​-­­possibility​-­­of​-­­ousting​ -­­trump​-­­through​-­­25th​-­­amendment​-­­graham​-­­says​/2019​/02​/17​/a1f851e6​-­­32d3​-­­11e9​-­­a400​ -­­e481bf264fdc​_story​.html. 84. Sunstein, Impeachment, 144; Nelson, “Firing, Retiring, and Expiring of Presidents,” 556. 85. Those clauses prohibit any federal officer from receiving “any present [or] emolument” from any “foreign state” (Article I, Section 9) and the president specifically from receiving any “emolument” beyond salary from “the United States, or any of them” (Article II, Section 1). Such emoluments might arise when foreign embassies rented rooms or bought meals at a Trump hotel, or when the federal government underwrote one of the president’s (and his staff ’s) frequent stays at his own properties. 86. Max Boot, “Here Are Five Felonies Trump Committed—If Cohen Is Telling the Truth,” Washington Post, February 27, 2019, https://​www​.washingtonpost​.com​/opinions​ /2019​/02​/27​/here​-­­are​-­­f ive​-­­felonies​-­­trump​-­­committed​-­­if​-­­cohen​-­­i s​-­­telling​-­­truth​/​?utm​ _term​=​.045b877b8eb6. 87. Appelbaum, “Impeach Trump.” 88. Joe Heim, “Nancy Pelosi on Impeaching President Trump: ‘He’s Just Not Worth It,’” Washington Post Magazine, March 11, 2019, https://​www​.washingtonpost​.com​/news​ /magazine​/wp​/2019​/03​/11​/feature​/nancy​-­­pelosi​-­­on​-­­impeaching​-­­president​-­­trump​-­­hes​ -­­just​-­­not​-­­worth​-­­it​/. 89. Nicholas Fandos and Carl Hulse, “After Cohen Testimony, Top Democrats Shy from Impeachment,” New York Times, February 28, 2019, https://​www​.nytimes​.com​/2019​/02​/28​ /us​/politics​/impeachment​-­­democrats​-­­trump​.html; and see ABC News, “This Week” transcript of March 3, 2019, https://​abcnews​.go​.com​/Politics​/week​-­­transcript​-­­19​-­­rep​-­­jerrold​ -­­nadler​-­­rep​-­­kevin​/story​?id​=​61428738. 90. Devlin Barrett, “Attorney General Nominee Wrote Memo Criticizing Mueller Obstruction Probe,” Washington Post, December 20, 2018, https://​www​.washingtonpost​ .com​/world/​ national​-­­security​/attorney​-­­general​-­­nominee-​ ­­wrote​-­­memo​-­­criticizing​-­­mueller​ -­­obstruction​-­­probe​/2018​/12​/20​/72a01304​-­­044b​-­­11e9​-­­b5df​-­­5d3874f1ac36​_story​.html​?utm​ _term​=​.c5700f9538cc. 91. Robert S. Mueller III, Report on the Investigation into Russian Interference in the 2016 Presidential Election [hereafter Mueller Report], March 2019, 1: 89. The report is available in print or at multiple sites online including https://​www​.nytimes​.com​/interactive​/2019​ /04​/18​/us​/politics​/mueller​-­­report​-­­document​.html. A 996-­page report released by the (Republican-­led) Senate Select Committee on Intelligence in August 2020 likewise documented extensive contacts between the Trump campaign and the Russian government, casting doubt on the president’s sworn written testimony to Mueller and “creating notable counterintelligence vulnerabilities.” Further, “The lack of vetting of foreign interactions by

116  A ndre w Ruda le v ige Transition officials left the Transition open to influence and manipulation by foreign intelligence services, government officials, and co-­opted business executives.” See Report of the Select Committee on Intelligence, U.S. Senate, on Russian Active Measures, Campaigns, and Interference in the 2016 U.S. Election, vol. 5: Counterintelligence Threats and Vulnerabilities, 245, xiii, available at https://​www​.intelligence​.senate​.gov​/sites​/default​/files​/documents​/report​ _volume5​.pdf. 92. Mueller Report, 2: 87. 93. Sharon LaFraniere, “Mueller, in First Comments on Russia Inquiry, Declines to Clear Trump,” New York Times, May 29, 2019, https://​www​.nytimes​.com​/2019​/05​/29​/us​/politics​ /mueller​-­­special​-­­counsel​.html. 94. Trump tweets of March 24 and April 21, 2019. 95. Quoted in Heather Caygle, “Pelosi Tells Dems She Wants to See Trump ‘in Prison,’” Politico, June 5, 2019, https://​www​.politico​.com​/story​/2019​/06​/05​/pelosi​-­­impeachment​ -­­1355435. 96. The summary (not a full transcript) of the phone call between Presidents Trump and Zelensky is available at “Trump-­Ukraine Phone Call Readout,” Politico, September 25, 2019, https://​www​.politico​.com​/story​/2019​/09​/25​/trump​-­­ukraine​-­­phone​-­­call​-­­transcript​-­­text​ -­­pdf​-­­1510770. 97. Sheryl Gay Stolberg, Maggie Haberman, and Peter Baker, “Trump Was Repeatedly Warned That Ukraine Conspiracy Theory Was ‘Completely Debunked,’” New York Times, September 29, 2019, https://​www​.nytimes​.com​/2019​/09​/29​/us​/politics​/tom​-­­bossert​ -­­trump​-­­ukraine​.html. 98. For a comprehensive online collection of the testimony and documents compiled during the impeachment and Senate trial, see https://​www​.justsecurity​.org​/67076​/public​ -­­document​-­­clearinghouse​-­­ukraine​-­­impeachment​-­­inquiry/. 99. “Nancy Pelosi’s Statement on Impeachment,” New York Times, September 24, 2019, https://​w ww​.nytimes​.com​/2019​/09​/24​/us​/politics​/nancy​-­­pelosi​-­­statement​-­­impeach ment​.html. 100. Quoted in Dana Milbank, “The Truth Finally Gains Ground on a Lie,” Washington Post, December 10, 2019, https://​www​.washingtonpost​.com​/opinions​/2019​/12​/10​/articles​ -­­impeachment​-­­speak​-­­truth​-­­most​-­­less​-­­facts/. 101. He also called it “unconstitutional,” a literally false claim. Text available at https://​ www​.justsecurity​.org​/wp​-­­content​/uploads​/2019​/12​/ukraine​-­­clearinghouse​-­­2019​-­­12​-­­17​ -­­trump​-­­letter​-­­to​-­­pelosi​.pdf. 102. The final House vote attracted no Republican votes, though Justin Amash—a conservative GOP congressman from Michigan who had left the party after breaking with Trump (becoming a Libertarian)—voted in favor of both articles. Two Democrats (one who had already announced he would run for reelection as a Republican) voted against both, while one split his votes. That made the final count 230–197 charging the president with abuse of power and 229–198 charging obstruction of Congress. 103. Mike DeBonis, “McConnell’s Vow of ‘Total Coordination’ with White House on Senate Impeachment Trial Angers Democrats,” Washington Post, December 13, 2019, https://​www​.washingtonpost​.com​/politics​/mcconnells​-­­vow​-­­of​-­­total​-­­coordination​-­­w ith​ -­­white​-­­house​-­­on​-­­senate​-­­impeachment​-­­trial​-­­angers​-­­democrats​/2019​/12​/13​/9cb5a258​-­­1dc7​ -­­11ea​-­­b4c1​-­­fd0d91b60d9e​_story​.html. 104. Maggie Haberman and Michael S. Schmidt, “Trump Tied Ukraine Aid to Inquiries He Sought, Bolton Book Says,” New York Times, January 26, 2020, https://​www​.nytimes​ .com​/2020​/01​/26​/us​/politics​/trump​-­­bolton​-­­book​-­­ukraine​.html. White House efforts to block publication of the book delayed it until May. It was as uncomplimentary as advertised;

The Crossroads of Impeachment  117 see John Bolton, The Room Where It Happened: A White House Memoir (New York: Simon & Schuster, 2020). 105. Though only on the first article, abuse of power. Romney voted to acquit the president of the charge of obstruction of Congress. 106. Quoted in Tribe and Matz, To End a Presidency, 155. 107. Arthur Schlesinger Jr., The Imperial Presidency (Boston: Houghton Mifflin, 1973); Rudalevige, New Imperial Presidency. 108. Quoted in Rudalevige, New Imperial Presidency, 268–69. 109. Ibid., 269–70. 110. See, e.g., Phillip Bobbitt, “Indicting and Prosecuting a Sitting President,” Lawfare blog ( January 14, 2019), https://​www​.lawfareblog​.com​/indicting​-­­and​-­­prosecuting​-­­sitting​ -­­president. 111. See the sources in Bobbitt, “Indicting.” Some take a middle ground: that a sitting president could be indicted, but not prosecuted, as a way to prevent the potential expiration of statutes of limitations. 112. See Alan Dershowitz, “‘High Crimes and Misdemeanors’ Should Only Include Criminal Conduct,” USA Today, January 30, 2020, https://​www​.usatoday​.com​/story​/opinion​ /todaysdebate​/2020​/01​/30​/alan​-­­dershowitz​-­­noncriminal​-­­behavior​-­­i snt​-­­impeachable​ -­­editorials​-­­debates​/2859607001/; Fred Barbash, “Madison, Hamilton, Dershowitz,” Washington Post, January 29, 2020, https://​www​.washingtonpost​.com​/nation​/2020​/01​/29​ /dershowitz​-­­impeachment​-­­speech/. 113. As were several other claims Dershowitz made—most notably, that nothing the president thinks is in the national interest can be an abuse of power. Since all presidents believe their reelection is in the national interest, by this logic even blatant manipulation of that election would presumably be unimpeachable. See Charlie Savage, “Trump Lawyer’s Impeachment Argument Stokes Fears of Unfettered Power,” New York Times, January 30, 2020, https://​www​.nytimes​.com​/2020​/01​/30​/us​/politics​/dershowitz​-­­trump​-­­impeachment​.html. 114. Black, Impeachment, 66. 115. Mike DeBonis and Rachael Bade, “House Judiciary Chairman Says He Will Launch Probe of Trump’s ‘Abuse of Power,’” Washington Post, March 3, 2019, https://​www​ .washingtonpost​.com​/powerpost​/house​-­­judiciary​-­­chairman​-­­says​-­­he​-­­will​-­­launch​-­­probe​-­­of​ -­­trumps​-­­abuse​-­­of​-­­power​/2019​/03​/03​/df672f78​-­­3dc0​-­­11e9​-­­922c​-­­64d6b7840b82​_story​.html​ ?utm​_term​=​.47cffaf20ac5. 116. Trump v. Mazars, No. 19–715 ( July 9, 2020). Mazars is an accounting firm directed to provide Congress with Trump Organization business and financial records. While upholding Congress’s broad right to obtain information, the Supreme Court asked the lower courts to decide whether the specific records requested were in fact relevant to legislative purposes. 117. Charlie Savage, “Court Rules Congress Cannot Sue to Force Executive Branch Officials to Testify,” New York Times, February 28, 2020, https://​www​.nytimes​.com​/2020​/02​/28​ /us​/mcgahn​-­­subpoena​-­­trump​.html; Trump v. Mazars 118. Douglas L. Kriner and Eric Schickler, Investigating the President: Congressional Checks on Presidential Power (Princeton, N.J.: Princeton University Press, 2016). 119. Rudalevige, New Imperial Presidency, chap. 4.

A MERIC AN REGICIDE Postwar Presidents and the Bitter Politics of Returning to Normalcy RUSSELL L . RI LE Y

In December of 1783 George Washington was eager to get home.1 After seven years of war, the weary general began a long trek to Virginia from New York, where he had traveled to observe the departure of defeated British troops from American soil. A combination of bad roads and jubilant Americans conspired, however, to impede Washington’s return to his hearth. On December 20, just after arriving in the nation’s capital at Annapolis, Washington sent a note to the president of the Confederation Congress saying that he was there to resign his commission as commander-­in-­chief and wondering whether he should do so “in writing or at an audience.” It is easy to imagine that an exhausted soldier would hope to hear the former. But Congress replied instead that Mount Vernon should wait. Washington would be “admitted to a public audience”—three days later.2 The resulting appearance before Congress became an iconic moment in American history. John Trumbull’s massive oil painting of Washington resigning his commission hangs in the rotunda of the U.S. Capitol building, where it looks down on millions of squirming schoolchildren nearly every year. And the emergence of a national mythology equating Washington with the Roman statesman Cincinnatus, who also abandoned his sword for a plow, draws mainly from this episode. King George  III is said to have remarked to his American portraitist that Washington’s voluntary relinquishing of his immense powers as commander-­in-­chief made him “the greatest man in the world.”3 Although that story is probably apocryphal, the sentiment embedded in it has endured. Washington rose to the greatest of heights—“First in the hearts of his countrymen”— largely because he refused vast power when it was his for the asking.4 However, some careful students of this moment say that we’ve drawn entirely the wrong lesson from it. Sociologist Barry Schwartz, in his Neustadt Award–winning book George Washington: The Making of an American Symbol, concludes that conventional accounts of the episode give far too much credit to Washington. They assign “to Congress a role that is much too passive. In fact,” 118

American Regicide  119

Schwartz claims, “the Annapolis ceremony was arranged neither by Washington nor exclusively for Washington; it was an occasion contrived by Congress for reasons of its own.”5 What were those reasons? Washington, it may be recalled, for most of the Revolutionary War had effectively been the government of the United States, designated, in the words of one British observer, the “dictator of America.”6 It was within Washington’s power to raise and equip troops, to buy or to commandeer provisions, to control food supplies, to mete out justice, to exercise controls over public health, and in general to take whatever steps were required to fight off the threat.7 The Continental Congress was a bit actor. However, with Washington’s mission accomplished, there was no longer any need for an all-­powerful commander. Accordingly, Washington’s appearance at Annapolis allowed the Congress to reassert itself, in a highly orchestrated and symbolic fashion, as the nation’s main governing force. Toward this end, Congress, working with choreography crafted by Thomas Jefferson, fashioned a ceremony that emphasized Washington’s subservient role to the national assembly.8 Here is Schwartz’s description of that encounter. Washington waited as the spectators filed into the Hall and took their places. Not until he was invited to speak by the president did he rise. Before delivering his address, Washington lowered himself—he bowed—to Congress. The members of Congress did not rise with Washington and therefore did not reciprocate his bow; they merely acknowledged his deference by doffing their hats. Washington’s deference to Congress was copious and unstinted; Congress’s deference to Washington perfunctory and abridged. Thus defined as servant rather than master of his government, Washington read his resignation speech. Having finished, he walked forward, then up the steps of the seated president’s platform, and submitted to him a written copy of his speech along with his commission. President [Thomas] Mifflin was the passive, superordinate member of the ceremony; Washington was the active, subordinate member.

Having thus met the obligation of fealty, Washington took his leave of Congress, arriving home as a private citizen on Christmas Eve. The prewar political order had been restored.

War and Presidential Power The predicate of this story—the extreme empowerment of a commander-­in-­ chief to deal with emergency conditions—is for most Americans a familiar phenomenon. Although there is no explicit provision in the U.S. Constitution, as there are in some democratic national charters,9 for an alternative way of governing in emergencies, Americans since 1787 have behaved much as they did

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in Washington’s day. During times of system-­threatening crisis, the American people have looked to vigorous presidential direction in ways only faintly seen in the formal text of the Constitution. At these critical crossroads in the nation’s past, Americans have chosen to depart from the usual practice of checks-­and-­ balances in favor of the more efficacious route of presidential rule.10 When Confederate states tried to secede from the Union, for example, Abraham Lincoln committed an act of war by instituting a blockade of southern ports before calling Congress to return to Washington. He also raised and deployed an army without legislative consent and spent public money on war provisions without constitutional authorization. Later he alone authorized through the Emancipation Proclamation what Charles and Mary Beard once termed “the most stupendous act of sequestration in the history of Anglo-­Saxon jurisprudence.”11 During World War I, Woodrow Wilson exerted such thorough controls over the wartime economy that his agents could tell Americans how much sugar they could put in their morning coffee.12 And in the Second World War, Franklin Roosevelt defiantly told Congress that he would unilaterally control food prices if it did not remove its legal handcuffs from him. (It did.) He also authorized the uprooting from their homes of over 100,000 Japanese Americans and their subsequent internment in camps across the American West.13 During these episodes of crisis government—which the eminent political scientist Clinton Rossiter called constitutional dictatorships—Americans have allowed their Constitution to be sufficiently malleable as to offer a way of governing quite different from usual. The standard norms of separated institutions sharing power and the usual protections of the Bill of Rights have been broadly relaxed to give the president extraordinary latitude to meet the crisis.14 Indeed, this pattern was so well established that the expansive contours of the post 9/11 presidency under George W. Bush were easily predicted by anyone with a basic grasp of the history of crisis government in America.15 But what happens once the crisis has passed? At that historic moment, the nation comes to a second crossroads—or perhaps more accurately, to a fork in the road. In theory, Americans could continue along the wartime path, perpetuating a new way of governing into the peace. Crisis behavior could become the new normal. To some extent this has actually happened: an accretion of institutional practices and precedents from crisis usually means that the presidency is operating from a new, and at least somewhat enhanced, baseline of power.16 But the overwhelming impulse after war has ended has been to return as quickly as possible to the kinds of governing arrangements the nation put aside to meet the threat—just as the Continental Congress did with George Washington at Annapolis. Washington’s example is illuminating because it directs our attention to that institutional dynamic. It is the restoration of prewar relationships, moving back to conventional constitutional balance after a period of executive supremacy, that is characteristic of the postcrisis period.

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Washington’s experience, however, miscues us in one critical way. His was, by all accounts, an agreeable return to the status quo antebellum. Indeed, his cooperation with Congress in returning his commission and all that it entailed was the stuff of legend. Yet Washington was an exception. What Warren Harding called, following World War  I, “the return to normalcy” has never been as anodyne as Harding’s personality or as congenial as Washington’s ceremonial pass through Annapolis. Even a cursory consideration of the histories of Andrew Johnson after the Civil War, the post–World War  I Woodrow Wilson, and the Harry Truman of 1945–46 confirms that these periods are among the most contentious and institutionally antagonistic moments in American history—deserving of the term “American regicide.”

Andrew Johnson Andrew Johnson suffered politically because of his innately unpleasant personality and southern sympathies. But the principal source of his troubles as Abraham Lincoln’s successor was contextual: a fundamental disagreement with Congress over the proper functioning of the American political order at that time. Simply put, Johnson sought to extend Lincoln’s constitutional dictatorship into the postwar era. He wanted to govern with the same institutional latitude that Lincoln had enjoyed. Conversely, after Appomattox, Congress vigorously sought to end that regime of presidential potency. As historian Elizabeth Varon has written, with the war over, “Johnson believed that the power to dictate terms to the South lay with the executive branch. Radicals [in Congress] believed”—and shared this belief with legislative moderates—that such “power lay in Congress.”17 From that disagreement over the proper allocation of power among the branches of government an impeachment arose. So long as civil war had raged, Congress had been willing to accept, however grudgingly at times, Lincoln’s aggressive deployment of an extraconstitutional “war power.” But as the war ended, so too did congressional receptiveness to presidential dominance. Johnson was crushed in the subsequent effort to reclaim congressional primacy. Indeed, historian Eric  L. McKitrick has observed that a cluster of post-­Reconstruction statutes reasserting congressional primacy over Johnson “brought executive power to the lowest point it has ever reached before or since.”18 It is worth noting that the president received fair warning of this prospective legislative resurgence even while Lincoln was still alive. When he began to give serious attention to questions of reconstruction as early as 1863, most members of Congress believed that he was too lenient in contemplating terms for the readmission of rebellious states. And they further believed that he was stepping beyond the generous bounds of war-­enlarged presidential power they had consented to by asserting a right to make postwar policy. In response, Congress

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struck back, passing the Wade-­Davis Bill in July of 1864, setting a far more rigorous set of conditions necessary for southern states to meet before they could be restored to full partnership in the Union. This Lincoln ­vetoed, which enraged members of Congress. The bill’s co-­sponsors then issued a public statement, known as the Wade-­Davis Manifesto, vigorously protesting Lincoln’s veto (and policy)—and telegraphing their intent to draw the line on Lincoln’s war powers at the end of the war.19 The manifesto said in part: We have read without surprise, but not without indignation, the [veto] proclamation of the President of the 18th of July, 1864. . . . A more studied outrage on the legislative authority of the people has never been perpetrated. The President . . . must understand . . . that the authority of Congress is paramount and must be respected; . . . and if he wishes our support, he must confine himself to his executive duties—to obey and execute, not make the laws; to suppress by arms armed Rebellion, and leave political reorganization to Congress.20

The struggle by Congress with Andrew Johnson after he became president the next year was fought on this terrain: Who should control postwar policy? Most accounts of Johnson’s impeachment focus on his unilateral decision, without the requisite senatorial approval, to replace Secretary of War Edwin Stanton. This was a violation of the Tenure of Office Act, which had been passed by Congress in 1867 over Johnson’s veto to regain ground lost to Lincoln in making federal appointments. But this fight over control of one executive appointment was actually symptomatic of a far more fundamental conflict, over the relative power of the two institutions. Two of the articles of impeachment against Johnson make this conflict clear, by directly charging the president with an unconstitutional disrespect for Congress. Article 10 opens: That said Andrew Johnson, President of the United States, unmindful of  .  .  . the harmony and courtesies which ought to exist and be maintained between the executive and legislative branches of the Government of the United States, designing and intending to set aside the rightful authorities and powers of Congress, did attempt to bring into disgrace, ridicule, hatred, contempt and reproach the Congress of the United States, and the several branches thereof, to impair and destroy the regard and respect of all the good people of the United States for the Congress and legislative power thereof  .  .  .  , and to excite the odium and resentment of all good people of the United States against Congress and the laws by it duly and constitutionally enacted.21

These charges of institutional disrespect were largely based on incendiary speeches Johnson had given, in which he viciously attacked Congress as tending toward “despotism.” Johnson claimed that the nation’s legislators had

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forgotten “that there was a limit to [their] sphere and scope of legislation”— especially as it related to their attempts to reassert checks on him as the nation’s chief executive.22 Had he lived, Lincoln surely would not have used the kind of intemperate rhetoric that inflamed Johnson’s relations with Congress. But he still would have been caught in a precipitous change in the political environment in Washington, with members of Congress vigorously reasserting their rights to make postwar policy in ways that Lincoln believed ill-­advised. Whether their subsequent disagreements would have led to Lincoln’s impeachment is impossible to know. But the underlying hostile conditions were plainly there. After the war’s end, Congress was unrelentingly committed to a restoration of legislative standing. And had Lincoln opposed this, as he may well have, his fate would have been troubled.

Woodrow Wilson As World War  I reached its end, Woodrow Wilson faced the same question Johnson had: Who ought to control the nation’s postwar policies—the president or Congress? And in a more temperate, but equally muscular way, Wilson sought to extend his constitutional dictatorship into the peace. It went about as well as Johnson’s effort had. With autumn advancing in 1918, President Wilson was carefully watching the convergence of two events and worrying deeply about how one might affect the other. The first was the 1918 midterm election, scheduled for November 5. The second was the rapid movement toward an armistice, resulting from German initiatives to sue for peace. Wilson plainly believed that his ability to steer the nation through the troubles of the coming postwar era was contingent on his maintaining Democratic control of both the House and Senate. So concerned was the president about how Congress would operate in this new era that, less than three weeks before the election, he issued to his “fellow countrymen” an unprecedented public “Appeal for a Democratic Congress.” In his open message to the country, he sought to nationalize the election around his leadership. “Unity of command,” he wrote, “is as necessary now in civil action as it is upon the field of battle. . . . The return of a Republican majority to either House of the Congress would . . . certainly be interpreted on the other side of the water as a repudiation of my leadership.”23 The electorate stunned Wilson by giving control of both houses of Congress to the Republicans, a midterm result that at the time was almost without precedent in American history.24 Wilson, rather than conceding to this new reality, insisted on beating against it. He remained unyieldingly fixed on his own postwar vision for the world, which he had enunciated in January of 1918 in a speech commonly noted for the president’s Fourteen Points. The most

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contentious of these presidentially developed postwar provisions was membership in the League of Nations, which now would have to be ratified by an opposition-­controlled Senate. Wilson decided to mount a major presidential marketing campaign featuring a whistle-­stop train tour of the country to secure his vision of the postwar world. He did so against the advice of his physician, quickly developed severe headaches, and labored through exhaustion to a paralytic stroke.25 The subsequent return to normalcy led by Warren Harding bore little resemblance to the war-­enlarged presidency that had just preceded it.

Harry Truman Harry Truman’s postwar problems are not nearly so well known as those of Johnson and Wilson—but they were no less severe. Consider, for example, this description by Truman biographer Robert Donovan: “For President Truman the postwar period did not simply arrive.” It “broke about his head with thunder, lightning, hail, rain, sleet, dead cats, howls, tantrums, and palpitations of panic. The storm of war had passed. But the turbulence in its wake . . . all but capsized the Truman administration.”26 The issues that vexed Truman included demobilization of a massive army of soldiers and an armada of sailors deployed around the globe and eager to return home; establishment of a postwar international order with the United States in an unparalleled position of global leadership in a broken world; and years of pent-­up economic demand for consumer goods, with forebodings of rampant inflation. And as in prior episodes, Truman was trying to navigate through these difficult crosscurrents at a moment when Congress was intent on reasserting its equal claim to steer the ship of state. Truman’s maelstrom, then, repeated the postwar pattern. Only one week after the Japanese formally surrendered in September 1945, the New York Times reported: “It appears that now there’s another war on—in Congress. President Truman is no longer, to the whole Congress, the Commander in Chief of the armed forces at war, but . . . the titular head of the opposition (the head man and the target, so to speak). . . . [From] here on there will be rather ruthless battle.”27 That battle was carried out not only in Washington, but also in the country at large. With the wartime crisis at long last ended, labor and industry each reasserted their rights to independence, seeking to escape the constraints of a controlled economy after years of being compelled to bow to a wartime president’s lead. The resulting epidemic of strikes nearly brought the economy to its knees. At a Gridiron Dinner late in 1945, Truman was moved to observe, in the semi-­serious tone typical of the event, “Sherman was wrong. I’m telling you I find peace is hell.”28 Small wonder that in his formal message to Congress in September, laying out the common challenges confronting them, he would emphasize a new emergency—hoping

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that characterization might afford him the constitutional high ground.29 It did not. The boiling problems of postwar demobilization were evidently a special category of crisis that the American system did not entrust to presidential leadership. Times columnist Arthur Krock, surveying the political landscape one year into Truman’s tenure, readily identified the root cause of the president’s problems. “Mr. Truman is a post-­war President, and when the shooting ends wartime combinations for political action fall apart. . . . Trouble in Congress has always been a load for post-­war Presidents to carry.”30 Relegated to junior-­partner status for most of the preceding twelve years, Congress sought ways to restore its constitutional vitality, including passage of a major legislative reorganization act in 1946, intended to give members the resources needed to keep up with an enlarged presidency.31 The voters then decided to accentuate this restored congressional independence in November’s midterms by converting—as they had in 1918 and for now the first time since then—majority control of both the House and Senate against the president’s party. Shortly thereafter, the new Speaker of the House, Republican Joseph Martin, announced that “Our American concept of Government rests upon the idea of a dominant Congress.”32 The presidency’s reversion to constitutional normalcy was, however, interrupted by the onset of the Cold War. By 1947, Americans were confronted with a new kind of threat, which in turn seemed to require a government in a perpetual state of military readiness with a newly reempowered presidency. Accordingly, the Truman of popular memory today is not the Truman of “dead cats” and “palpitations of panic,” but the shrewd architect of a new international order that established the terms of American global leadership during a Cold War against the Soviet Union that would last for nearly half a century. The rising tide of anxiety over a global communist menace lifted the presidency’s place in the constitutional order once again, leaving the system in a protracted state of high alert. The sudden realities of the thermonuclear age created anew a receptivity in the United States for an alternative way of governing—again under presidential direction. Those, then, are the cases of American regicide that fit neatly into our conventional narratives of American politics. However, one of the great virtues of finding a previously unappreciated pattern of behavior is that it can cue us to find parallel developments in places where we might not otherwise think to look. In particular, a fascinating picture appears at the end of the long and circuitous Cold War, a portrait unexpectedly familiar. The political order of the 1990s was shaped as profoundly by the dynamics of postwar contraction as in each of these earlier instances, allowing us, for example, to trace the importance of Monica Lewinsky’s blue dress, and what it meant for the White House of that time, to the collapse of the Berlin Wall.

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The 1990s The Iron Curtain fell nine months into the presidency of George Herbert Walker Bush. Now that we know to look for them, we can easily see the forces of postwar institutional contraction encumbering Bush. Indeed, they are evident in the most prominent of Bush’s domestic and foreign policies. Consider the major 1990 budget deal that defined Bush’s presidency, in which he was pressured by Congress to reverse the colorful pledge he made at the 1988 Republican National Convention: “Read my lips—No new taxes!” Why were new taxes required in that environment? In part, of course, Bush was left to pay the piper for the massive defense build-­up of the Reagan years, which was funded largely by deficit spending. But more fundamentally, that budget agreement represented a conflict between Congress and the president over the design of the post–Cold War government—and a revisiting of long-­ held assumptions about taxes and spending. Bush’s basic challenge was how to fend off severe pressures for a rapid post–Cold War build-­down in the defense sector—demobilization—while simultaneously accounting for what was widely termed the “peace dividend.” The peace dividend was the financial payoff the nation expected to enjoy from stopping wartime spending in the postwar era. Defense Secretary Dick Cheney, in his Miller Center oral history about this period, rhymed, “‘Peace dividend, peace dividend,’ we heard it over and over and over again.”33 Bush’s core problem was what might be termed the dividend gap—that is, the difference between his own perception, as commander-­in-­chief, and the perceptions of his critics about how much money could be redeployed responsibly from national security to other purposes. For the remainder of his presidency after the fall of the Berlin Wall, Bush was enmeshed in political battles, fending off calls to cut defense spending more precipitously than he thought wise and deflecting commitments to domestic priorities that others thought should be funded from the dividend. “A quip is going around Washington,” one contemporaneous report had it, “that half the U.S. peace dividend . . . will be spent on education, half on the drug war, half on reconstructing Eastern Europe and half on the budget deficit.”34 The end of the Cold War had created a widespread urge for more domestic spending paid for by what many outside the White House thought would be boundless supplies of cash reallocated from a quickly shrinking Pentagon—at exactly the same moment budget hawks saw opportunities for dealing with an outsized federal deficit. Although the 1990 budget agreement is completely dominated in the popular memory by the president’s abandonment of his “No new taxes” pledge, what is usually overlooked is what the commander-­in-­chief extracted from Democratic negotiators in exchange for this humiliation: the establishment of “fire-­walls” between three major spending categories—defense, foreign aid,

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and domestic discretionary programs—such that money saved in one category could not be redistributed into another. In practice this meant that the defense budget was not to be treated as an ATM for funding domestic programs. Any defense funds freed up by a still inchoate peace dividend would have to remain in the defense silo or be used for deficit reduction. The 1990 budget agreement’s effect on Bush was politically devastating. But the existence of these legal fire-­walls gave the White House tremendous leverage over budgeting throughout the rest of his presidency. “What isn’t appreciated,” remarked Michael Boskin of the Council of Economic Advisors in his oral history, “is how much of the budget agreement was Bush protecting defense . . . for another couple of years while he did what he had to do diplomatically and geopolitically.”35 Senate Budget Committee chair James Sasser (D-­TN), among others, tried vigorously to find a way to crack open the defense budget, claiming that “it would be foolish not to seize this opportunity . . . to go back to a policy of investing in America.” Yet these efforts were frustrated by the terms of the 1990 agreement, which were reinforced, Sasser lamented, by “unreconstructed old Cold Warriors [who] strap on their rusty armor and come over here on the floor and tell us, ‘Oh, no, you can’t reduce this military spending.’”36 Bush succeeded, then, as a budget-­conserving commander-­in-­ chief. But in consequence he failed reelection to a second term. At almost the same time that Bush was struggling with the budget agreement in 1990, Saddam Hussein’s armies invaded Kuwait, making that small Persian Gulf country, according to Joseph S. Nye Jr., “the first victim of the end of the Cold War world order.”37 And the contentious politics of the American response revealed the reality of those post–Cold War pressures in the realm of U.S. foreign policy. What is most striking about Bush’s response to the invasion of Kuwait is that he elected to ask Congress for authorization to use troops to oust the Iraqis. He decided to take this path even though key advisors, such as Cheney and Attorney General William Barr, told him that he had all the authority he needed to act unilaterally.38 The conventional wisdom on this point is that Bush’s decision was a shrewd exercise of political judgment, securing formal buy-­in from the legislative branch and thus limiting the ability of congressional Democrats to carp from the sidelines if things went badly. But Bush’s choice to do so was extremely important historically. In the words of Congressional Quarterly, that decision “reinstated a congressional role in going to war missing in action since December 8, 1941.”39 The interventions of Senator Daniel Patrick Moynihan (D-­NY) on this issue are especially illuminating. During the congressional debate over the authorization of force, Moynihan argued explicitly, both on the Senate floor and on the op-­ed page of the New York Times, that Congress needed to use this occasion, after a long hiatus, to reestablish its primacy in the business of

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commencing war. “The Constitution took something of a beating during the cold war,” Moynihan observed. “How could it not have in the course of 30 to 40 years in which Presidents knew they would have 10 minutes at most to decide whether to launch a thermonuclear second strike? All right; that was then. Now a certain normality reappears.” With that return to normality, the long habits of the Cold War had to be broken—which would not be easy. Moynihan’s training as a sociologist led him to observe that “the manner and mode of the cold war . . . [have] been with us so long, [that] we do not know how to act differently.” These habits meant that when the first post–Cold War conflict arose, the White House would naturally deny the “primacy of Congress under the Constitution . . . just at that moment when it would seem possible to return to what was once the normal conduct of foreign affairs by the President and the Congress of the United States.”40 Moynihan opposed the Persian Gulf War and hoped that Congress would deny the president authorization to intervene. He failed on the policy but succeeded on the basic prin­ ciple: the president did come to Congress, where he got its imprimatur for military intervention. Across the board, George Bush was straining against deep historical forces visible only on the surface. At least one of his advisors detected the source of the undercurrents that eventually dragged Bush out to sea. In December of 1991, Bush’s pollster Fred Steeper circulated a short memo to the reelection campaign’s senior staff, simply entitled “The Churchill Parallel.” He was deeply worried about Bush’s electoral chances in a political environment that did not seem favorable to him, notwithstanding the stirring victory in the Gulf War. So Steeper drew on a foreign example known by most educated Americans. “Leaders,” he said, “are not necessarily reelected for their foreign policy and wartime successes, even when monumental. . . . Historians [have] concluded that the British voters felt Churchill was needed for wartime, but he was not appropriate to rebuild Britain’s economy during peacetime.”41 Although Steeper was writing mainly about the immediate success in the Gulf War, his logic applied as well to the broader conclusion of the Cold War. And of course Bush met the same end as Churchill—in his own case ousted by the governor of a small state with meager foreign policy credentials, whose campaign exploited a national yearning for a president focused on the home front. But, to borrow a phrasing from Justice Benjamin Cardozo, the great tides and currents of history did not turn aside in their course after Bush’s loss and pass Bill Clinton by.42 In some respects Clinton was engulfed more fully by them than even was George Bush. Three specific pieces of evidence from the Clinton years especially conform to the usual postwar pattern.43 The first was the fate of Clinton’s chief domestic reforms. He tried in his first term to enact major changes to federal healthcare policy—which met with the defeat of an anachronism. Postwar periods are typically times of contraction

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rather than expansion of the size and authority of the federal government, as witnessed by Harry Truman’s own failed attempt to nationalize health care in 1946. This phenomenon may also help explain why later in the term Clinton was more successful in reforming the nation’s welfare system. That effort did contract the scope of the national government’s commitments. Clinton was then swimming with the tide of history rather than against it. Second, the 1994 midterm elections. When wars end, the American electorate typically creates robustly oppositionist Congresses in order to restore the proper institutional balance in Washington. There have only been six midterm elections in all of American history when both houses of Congress turned against the sitting president’s party, and five of those were postwar midterms, including, as we have already seen, 1918 and 1946, along with 1954 and 1994 (and, later, 2006).44 Easily added to these are the midterms immediately following the Civil War and the Vietnam War, 1866 and 1974, which didn’t result in altered party control, but did produce famously defiant Congresses—notably the “Watergate babies” of that latter instance. So the Republican Revolution of 1994 repeated the pattern of earlier postwar episodes, shifting the locus of power in Washington more fully back into the legislative orbit. Which now brings us back to that third piece of evidence: Bill Clinton’s impeachment.45 The path through this history is a tangled one, because Clinton’s troubles did not originate with an ill-­advised sexual relationship with a former White House intern. Rather, those private encounters happened against a backdrop of controversy that set the stage for the Monica Lewinsky scandal to threaten his presidency. The president’s initial legal jeopardy arose from a sexual harassment lawsuit filed by Paula Jones, an Arkansas state employee who alleged that then-­ Governor Clinton had propositioned and exposed himself to her, and then had her penalized for refusing his advances. The lawsuit was not filed until after Clinton became president. Under the circumstances, Clinton’s personal lawyers as well as attorneys representing him in his official capacity as president argued that the case should be dismissed, or at least suspended during the time of his presidency. They cited dangers to the president’s unique constitutional position if such a suit was allowed to proceed. Although his lawyers could not have known this at the time, Clinton later confirmed their worst fears by offering suspect testimony under oath once the case was permitted to advance, which led ultimately to his impeachment.46 Accordingly, perhaps the critical hinge moment in the Clinton presidency was the decision by the United States Supreme Court, in May 1997, to allow Jones’s civil lawsuit to move ahead immediately. The court’s judgment in Clinton v. Jones is quintessentially a post–Cold War decision, a ruling hard to imagine during the period of conflict with the Soviet Empire.

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Indeed, by allowing the Jones case to proceed, the Rehnquist court decided not to accept the guidance provided by the one case all agreed was the closest precedent to it—the Cold War–era Nixon v. Fitzgerald (1982). In that case, the Warren Burger court held that Richard Nixon was entitled to absolute and perpetual immunity from civil lawsuits, although in that instance it was for something Nixon had done in his official capacity. Clinton would have been satisfied to have the case delayed until he left office, but the Supreme Court refused even that. The Jones decision is usually called a unanimous one. But, importantly, Justice Stephen Breyer departed from the other eight justices and authored a concurrence that identified a troubling feature of the majority’s logic. In his opinion, Breyer gave voice to strong reservations that the court had ruled without giving due attention to the distractions civil litigation might exert over the president’s attention. Concern about those distractions had been baked into the court’s thinking in the Nixon case, because of the life-­and-­death demands on the president’s time associated with the Cold War. But Breyer worried that in the absence of that elevated threat, his own court had overshot the mark, greatly underestimating the perils to the presidency of letting the Jones case proceed. Breyer’s concurrence, then, was a rejoinder to the majority’s claim that it was “highly unlikely [that this lawsuit will] occupy any substantial amount of [the] petitioner’s time.” That majority assertion proved to be a devastatingly errant prediction. During the course of oral arguments in the Jones case, Associate Justice Antonin Scalia openly ridiculed Clinton’s lawyers when they tried to assert that the unique value of the president’s time merited a blanket protection. Laughter broke out in the courtroom when Scalia belittled the possible intrusions on the presidential workload, noting that they all had often seen “Presidents riding horseback, chopping firewood, fishing for stick fish, playing golf and so forth and so on,” surmising that there must be time in the president’s schedule to deal with the modest intrusions of private civil litigation. “Really, the notion that [the president] doesn’t have a minute to spare is . . . is just not . . . not credible,” even for a justice whose usual conceptions of a muscular, unitary executive typically left little room for judicial annoyances.47 It is especially revealing of the court’s attitude that the sole reference to foreign policy during oral arguments was a set of occasionally lighthearted exchanges about what might happen hypothetically if the trial court scheduled a date that conflicted with a NATO meeting. This was a far cry from the nuclear-­age pressures on the president’s time typical of the Cold War, captured in Moynihan’s chilling reference to those ten minutes when a president had to decide to launch a second strike. “Because of the singular importance of the president’s duties,” reasoned Justice Lewis Powell for the majority in Fitzgerald, “diversion of his energies by concern with private lawsuits would

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raise unique risks to the effective functioning of government.”48 With the Soviet Union dissolved, however, the William Rehnquist court could disregard those bygone existential threats. In sum, it seems improbable that a Cold War–era court, focused, deferentially, on the extraordinary value of the president’s time, would have issued the same decision made in 1997. Far more likely would have been a majority signing onto an opinion like that authored by Judge Donald Ross, one of three appellate judges who heard Jones v. Clinton before it came to the Supreme Court. Judge Ross wrote that the “language, logic, and intent of Nixon v. Fitzgerald” obliged him to rule that “private civil actions against a sitting President for unofficial acts must be stayed during the President’s term in office,” including all aspects of discovery and trial. When the President is called upon to defend himself during his term of office, even in actions wholly unrelated to his official responsibilities, the dangers of intrusion on the authority and functions of the Executive Branch are both real and obvious. The burdens and demands of civil litigation can be expected to impinge on the President’s discharge of his constitutional office by forcing him to divert his energy and attention from the rigorous demands of his office to the task of protecting himself against personal liability. That result would disserve the substantial public interest in the President’s unhindered execution of his duties and would impair the integrity of the role assigned to the President by Article II of the Constitution.49

Only Justice Breyer on the Rehnquist court found this logic in any way convincing. One further piece of evidence in support of this interpretation comes from Walter Dellinger, who was the acting solicitor general in 1997 and argued the case for Clinton before the Supreme Court. Several weeks before oral argument, Dellinger got so rattled during the moot-­court exercises he had organized with eminent legal experts to prepare for the case that he rushed to the White House and urged the president’s legal team to settle instantly. The source of Dellinger’s worries? He was alarmed at the extent to which “the notion of presidential supremacy was on a downhill slide. In part due to the end of the Cold War, the idea that the president needed to be freed of all distractions and given absolute deference in order to guard against nuclear attacks and enemies abroad seemed passé. The days of chief executives reigning supreme in Washington were slowly vanishing.”50 Those days gone, the Supreme Court decided to force Clinton to deal with the Jones lawsuit immediately. From there, Monica Lewinsky went from being a probably unknown personal indiscretion for Clinton to the source of a constitutional crisis. Her blue dress might otherwise have been a discarded remnant

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of an unlikely fling or mere fodder for persistent rumors. Instead it contributed to the end of the Cold War presidency. So—where does that leave us now? After 9/11, the United States returned to a recognizable war-­enlarged presidency, which encompassed George  W. Bush, Barack Obama, and (as of this writing) Donald Trump. Indeed, President Trump explicitly asserted his status as a “war president” to lead the nation’s efforts against the dire threat caused by the COVID-­19 virus. Much as was the case during the Cold War, then, Americans seem to be locked in a protracted era of presidencies perpetually enlarged to deal with a variety of persistent global threats. And yet Trump’s presidency will put the nation at a critical crossroads well before these conflicts end. Will his until-­now unique way of executing the office become the new normal? He treated with defiance efforts by the legislative and judicial branches to exercise their constitutional constraints on him, often governing by intimidation rather than consensus. He openly voiced contempt for a free press and demonstrated little regard for the truth in communicating to the American people. He cast aside the commonplace ethical standards that most presidents have accepted as a binding part of their contract with the voters. He on occasion and without apology trafficked in racist stereotypes and xenophobia. He centralized control of the executive branch within the White House to a perhaps unprecedented degree, using “acting” status among a raft of his appointees as a conscious mechanism for undermining their ability to exercise their own professional judgment. He openly threatened to use the nation’s justice system to punish his political enemies. He showed little regard for the institutional heritage he inherited or the historical rationales for the norms he abandoned. And he practiced a low and vulgar rhetoric—often expressed through the nuance-­killing instrument of Twitter—rarely seen from a sitting president apart from Andrew Johnson’s allegedly intoxicated stump speeches or Richard Nixon’s privately recorded ventings. Did Donald Trump, then, permanently change the institution of the presidency, making these practices the new norm? Or is the forty-­fifth presidency to be an aberration? Which of these paths will the nation choose? Based on the long American experience outlined in this essay, a preference for divided institutions, or checks and balances, remains deeply embedded in our political culture. The nation did not turn permanently, as some have suggested, to an imperial presidency after it was first described by Arthur Schlesinger in 1973.51 Indeed, our institutional history since then has been vastly more complicated than a steady upward slope on the graph of presidential power. The national devotion to equal, separated institutions has been much more robust than is usually recognized, surviving intact even decades-­long departures from

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that standard. And as Clinton Rossiter emphasized, the American practice has been of “constitutional dictatorship,” with our emergency-­empowered presidents expected to minimize the departures from constitutional norms except where national survival has demanded otherwise. Accordingly, in an age dominated around the world by strongmen and unchecked autocrats, it would not be a surprise after Trump to see Americans reject those commonplace alternatives and choose the road less traveled by.

Notes 1. Stanley Weintraub, General Washington’s Christmas Farewell: A Mount Vernon Homecoming, 1783 (New York: Free Press, 2003), 1. 2. See the related accounts in Douglas Southall Freeman, George Washington, A Biography, vol. 5, Victory with the Help of France (New York: Charles Scribner’s Sons, 1954), 469–78; “George Washington’s Resignation as Commander-­in-­Chief: Editorial Note,” in The Papers of Thomas Jefferson, vol. 6, 21 May 1781 to 1 March 1784, ed. Julian P. Boyd(Princeton, N.J.: Princeton University Press, 1952), 402–14; and Weintraub, Washington’s Christmas Farewell. 3. Reported among other places in Gordon S. Wood, The Radicalism of the American Revolution (New York: Vintage, 1993), 206. 4. The phrase originated with Henry “Light Horse Harry” Lee in his funeral oration for Washington. See https://​www​.nlm​.nih​.gov​/exhibition​/georgewashington​/education​ /materials​/Transcript​-­­Funeral​.pdf. 5. Barry Schwartz, George Washington: The Making of an American Symbol (Ithaca, N.Y.: Cornell University Press, 1987), 137–48. 6. Quoted in Logan Beirne, Blood of Tyrants: George Washington and the Forging of the Presidency (New York: Encounter Books, 2013), 147. 7. Ibid., passim. See also Bruce Chadwick, George Washington’s War: The Forging of a Revolutionary Leader and the American Presidency (Naperville, Ill.: Sourcebooks, 2004). 8. Details of this event, focused on Jefferson’s role, appear in “George Washington’s Resignation as Commander-­in Chief,” in The Papers of Thomas Jefferson, vol. 6, ed. Boyd, 402–9. 9. Article 16 of the French Constitution conveys extraordinary powers to the president during formally declared emergencies. See https://​www​.constituteproject​.org​/constitution​ /France​_2008​.pdf​?lang​=​en. 10. President Donald Trump invoked the National Emergencies Act of 1976 for the purpose of building a wall along the border between M ­ exico and the United States, funding Congress otherwise would not provide him. Trump’s was a faux-­emergency for which there was little consensus. When genuine crises have arisen in the nation’s past, widespread support has not had to be manufactured; it has emerged quickly and naturally. For example, a capacious Authorization for Use of Military Force against the perpetrators of the 9/11 terrorist attacks passed Congress on September 14, 2001. The Senate vote was 98–0; the House’s was 420–1. 11. Charles A. Beard and Mary R. Beard, The Rise of American Civilization, vol. 2 (New York: Macmillan, 1930), 100. 12. See Robert Higgs, Crisis and Leviathan: Critical Episodes in the Growth of American Government (Oxford: Oxford University Press, 1987), 137. For a contemporaneous assessment of Wilson’s extraordinary powers, see Joseph H. Odell, “Who Is the United States?” Outlook, February 20, 1918, 281. Odell wrote, “When I ask Who is the United States? There is one and only one answer: Woodrow Wilson! . . . It used to be said: ‘We, the People, we are

134  Russell L . Rile y the United States!’ Now it is said: ‘Woodrow Wilson, he is the United States!’ And all that he may win the war!” 13. Clinton Rossiter, Constitutional Dictatorship: Crisis Government in the Modern Democracies (New York: Harcourt, Brace and World, 1963), chap. 18. 14. Ibid., passim. 15. One of the best accounts of George W. Bush’s case of constitutional dictatorship is Charlie Savage’s Pulitzer Prize–winning Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy (New York: Little, Brown, 2007). 16. I agree with the “ratchet thesis” offered by Robert Higgs in Crisis and Leviathan, which posits that some residual powers from each crisis remain in the system. In other words, the return to normalcy is never complete. Some wartime practices are carried over as routines into the postwar era, and the precedents established are useful for subsequent presidents to grasp onto as justification for enhanced powers when the proper occasion arises. But the immediate postwar impulses have always been vigorously in the direction of restoration. 17. Elizabeth  R. Varon, “Andrew Johnson and the Legacy of the Civil War,” Oxford Research Encyclopedia of American History, https://​oxfordre​.com​/americanhistory. 18. Eric L. McKitrick, Andrew Johnson and Reconstruction (Chicago: University of Chicago Press, 1960), 13. 19. See David Herbert Donald, Lincoln (New York: Simon & Schuster, 1995), 510–12, 524; Philip Shaw Paludan, The Presidency of Abraham Lincoln (Lawrence: University Press of Kansas, 1994), 280–82, 302. 20. See “The War upon the President: Manifesto of Ben. Wade and H. Winter Davis against the President’s Proclamation,” New York Times, August 9, 1864, 2. 21. Found at https://​www​.senate​.gov​/artandhistory​/history​/common​/briefing​/Impeach ment​_Johnson​.htm​#7. 22. Also quoted in Article 10 of the impeachment charges. 23. See the text of “An Appeal for a Democratic Congress, Oct. 19, 1918,” in The Papers of Woodrow Wilson, vol. 51, September 14–November 8, 1918, ed. Arthur S. Link (Princeton, N.J.: Princeton University Press, 1985), 381–82. For the reaction, see “G.O.P Resents Wilson’s Plea,” Los Angeles Times, October 26, 1918, 13. 24. The only clear instance before this time of a complete midterm reversal against a sitting president appears to be the 1894 election, when both legislative houses flipped against Grover Cleveland. 25. Herbert Hoover, The Ordeal of Woodrow Wilson (New York: McGraw-­Hill, 1958), 272. 26. Robert Donovan, Conflict and Crisis: The Presidency of Harry S. Truman, 1945–1948 (Columbia: University of Missouri Press, 1977), 107. 27. C. P. Trussell, “Congress Shifts Back to a Peacetime Basis: Home Front Problems and Politics Will Hold Attention from Now On,” New York Times, September 9, 1945, 78. 28. Quoted in Donovan, Conflict and Crisis, 125. 29. Harry Truman, “Special Message to the Congress Presenting a 21-­Point Program for the Reconversion Period,” September 6, 1945, at https://​ www​ .trumanlibrary​ .org​ /publicpapers​/index​.php​?pid​=​136​&​st​=​&​st1=. 30. Arthur Krock, “The President: A New Portrait,” New York Times Magazine, April 7, 1946, 8, 48. The fundamental root of Truman’s difficulties in the postwar era was a recurrent theme in Krock’s writing. 31. Roger Davidson, “The Advent of the Modern Congress: The Legislative Reorganization Act of 1946,” Legislative Studies Quarterly 15, no. 3 (1990): 357, 360. 32. “Text of Speaker Martin’s Address Opening House Session,” New York Times, January 4, 1947, 2.

American Regicide  135 33. Richard  B. Cheney, oral history, Miller Center, University of Virginia, https://​ millercenter​.org​/the​-­­presidency​/presidential​-­­oral​-­­histories​/richard​-­­b​-­­cheney​-­­oral​-­­history​ -­­secretary​-­­defense. 34. Aviation Week & Space Technology, March 12, 1990, 7. 35. Michael Boskin, oral history, Miller Center, University of Virginia, https://​ millercenter​.org​/the​-­­presidency​/presidential​-­­oral​-­­histories​/michael​-­­boskin​-­­oral​-­­history​ -­­chair​-­­council​-­­economic. 36. Congressional Quarterly Almanac, 102nd Congress, 2nd Session, 1992 (Washington, D.C.: Congressional Quarterly, 1993), 106. 37. Joseph S. Nye Jr., “Why the Gulf War Served the National Interest,” Atlantic Monthly ( July 1991). 38. See their Bush 41 Miller Center oral histories: Cheney, https://​millercenter​.org​/the​ -­­presidency​/presidential​-­­oral​-­­histories​/richard​-­­b​-­­cheney​-­­oral​-­­history​-­­secretary​-­­defense and Barr, https://​millercenter​.org​/the​-­­presidency​/presidential​-­­oral​-­­histories​/william​-­­p​ -­­barr​-­­oral​-­­history​-­­assistant​-­­attorney​-­­general. 39. Congressional Quarterly Almanac, 102nd Congress, 1st Session, 1991 (Washington, D.C.: Congressional Quarterly, 1992), 3. 40. See Congressional Record, January 10, 1991, captioned “A Return to Cold War Thinking,” available at http://​thomas​.loc​.gov​/cgi​-­­bin​/query​/F​?r102:​43:.​/temp​/​~r102DaHd6d:​ e0; Daniel Patrick Moynihan, “Next Step in the Gulf—It’s Almost Midnight; Restraint, Mr. Bush,” New York Times, January 15, 1991, A19. 41. See David Halberstam, War in a Time of Peace: Bush, Clinton, and the Generals (New York: Scribner, 2001), 15. 42. Benjamin N. Cardozo, The Nature of the Judicial Process (New Haven, Conn.: Yale University Press, 1921), https://​www​.constitution​.org​/cmt​/cardozo​/jud​_proc​.htm. 43. A more thoroughgoing explanation of the Clinton case appears in Russell L. Riley, “History and Bill Clinton,” in 42: Inside the Presidency of Bill Clinton, ed. Michael Nelson, Barbara A. Perry and Russell L. Riley (Ithaca, N.Y.: Cornell University Press, 2016), 1–21. 44. I consider 2006, during George  W. Bush’s second term, a postwar election, partly because the electorate behaved as such. This argument is developed in Russell  L. Riley, “Divided We Stand,” Politico, January 30, 2007, at https://​www​.politico​.com​/story​/2007​/01​ /divided​-­­we​-­­stand​-­­002538. 45. It is worth noting that the only other successful presidential impeachment in American history also occurred in the immediate aftermath of war, with Andrew Johnson. And strikingly, the Senate’s select committee on the Watergate scandal, which helped dispatch Richard Nixon, was established only eleven days after the Paris Peace Accords were signed in January 1973, ending the Vietnam War. 46. The Clinton story was further tangled because independent counsel Kenneth Starr, whose report to Congress sparked impeachment, was initially charged with investigating completely different Clinton misdeeds, mainly related to a failed land deal in Arkansas known as “Whitewater.” Starr’s investigators eventually added the otherwise unrelated Jones/Lewinsky matter to their portfolio, informally because of partisan mission creep, but formally because they convinced Attorney General Janet Reno that there was a pattern of witness tampering by the president and his friends across all those matters. The Whitewater claims ultimately bore little fruit, but Clinton’s lies under oath about his sexual behavior formed the basis of the report Starr filed with Congress. Thus the Jones case was an indispensable predicate for impeachment. A thorough, readable account of these complicated developments is Ken Gormley, The Death of American Virtue: Clinton vs. Starr (New York: Crown Publishers, 2010).

136  Russell L . Rile y 47. Oral arguments available at https://​www​.oyez​.org​/cases​/1996​/95​-­­1853. 48. https://​supreme​.justia​.com​/cases​/federal​/us​/457​/731​/​#tab​-­­opinion​-­­1954625. 49. Ross’s opinion is at https://​openjurist​.org​/72​/f3d​/1354​/jones​-­­v​-­­clinton​-­­h​-­­h​-­­a​-­­j​-­­and​

-­­p​-­­and​-­­d​-­­c​-­­g​-­­w​-­­w​-­­and​-­­w​-­­b​-­­r​-­­h​-­­m​-­­h​-­­s​-­­b​-­­g​-­­c​-­­m​-­­j​-­­p​-­­and​-­­f​-­­la​-­­b​-­­d​-­­e​-­­r​-­­c. 50. Reported in Gormley, Death of American Virtue, 222. 51. A powerful argument in support of this thesis—that the post-­Nixon recoil of the political order was abbreviated, with the nation soon returning to a path of presidential ascendancy from which it has not appreciably departed—appears in Andrew Rudalevige, The New Imperial Presidency: Renewing Presidential Power after Watergate (Ann Arbor: University of Michigan Press, 2005). He does consider the post-­Watergate “resurgence” of Congress an important datum about American political behavior, but argues that it died incomplete well before the emergence of the post-­9/11 presidency. My core argument is that American political history between 11/9 and 9/11 reveals a far more robust reaction to the imperial presidency than is commonly understood. My differences with Rudalevige are over the events of this interval, not his characterizations of a new imperial presidency thereafter.

THE PERSONAL PRESIDENC Y AT A CONSTITUTIONAL CROSSROADS B A R B A R A   A . P E R RY A N D S T E FA N I E G E O R G A K I S A B B OT T

Jeffrey Tulis has argued that there are “two constitutional presidencies”: the Founders’ formal office established by the Constitution of 1789 with checks on popular will, and the informal modern presidency created by Woodrow Wilson based on popular rhetorical leadership.1 Theodore Lowi viewed rhetoric-­centric presidents as in turn creating the “personal presidency,” which he defined as “an office of tremendous personal power drawn from the people—directly and through Congress and the Supreme Court—and based on the new democratic theory that the presidency with all its powers is the necessary condition for governing a large, democratic nation.”2 As the rhetorical presidency has expanded its personal dimensions and grown ever closer to and more dependent on the people, has it evolved into a third constitutional presidency? And is it now unconstitutional? Has the current presidency now reached its most critical crossroads?

Presidents and the People The United States, newly independent from a monarchical colonial power, established a democracy but not one directly governed by the people. Instead, the Framers created a republic, with checks and balances both on the vox populi and on those chosen to govern. Yet they worried that republics, even with structural safeguards like the Electoral College, can collapse when the people assume a disproportionate voice in government. Worst in the Founders’ estimation was the potential rise to power of demagogues. From the ancient Greek term for leaders of the mob, the word has evolved to mean “an unscrupulous politician who seeks to hold office through emotional appeals to mass prejudices and passions. Half-­truths [and] outright lies . . . may be used 137

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in attempts to dupe the voters. Typically, a demagogue may try to win support from one group by blaming another for its misfortunes.”3 Alexander Hamilton wrote that “of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants.”4 Never mind that “the people” to whom politicians could appeal for votes in the founding era included only white male property-­owners. The Framers mistrusted voters even like themselves, providing for direct election of just the House of Representatives. Woodrow Wilson, a political scientist, did not advocate direct democracy. Rather, he saw presidents as “leader-­interpreters,” who would educate the public. Arriving in the White House in 1913 at the dawn of the modern mass media age, he knew that presidents could now reach the American electorate directly through copies of speeches circulated throughout the country. Twentieth-­ century advances in travel allowed him to whistle-­stop across the nation to campaign for Senate ratification of the Versailles Treaty. Ultimately, the stresses of train travel not only went for naught, as the Senate defeated the treaty, but also cost Wilson his health when a massive stroke felled him after his return to Washington. Yet presidents would never reverse course from the turn he had taken directly toward the people. Franklin Roosevelt became the first successful electronic media president, with his masterful use of radio and newsreels to convey messages and images. Still photos and newsreel cameras captured the jaunty upturned chin and broad smile of the man whom Winston Churchill described meeting as “like opening your first bottle of champagne.” Such bubbly optimism was just what the nation craved in the depths of the Great Depression and in the long struggle of World War II. FDR’s baritone voice over the radio resonated with the people, despite his patrician New York accent, and his resounding rhetoric soothed, inspired, and uplifted a distressed nation. Families gathering in their living rooms, patrons listening in bars, drivers tuning in to car radios were all united as they listened to his fireside chats. To be sure, those he called “royalists,” business elites and other conservatives who despised government regulation, preferred not to utter his name, calling him “that man.” But to the average American he was a hero. Always an astute tactician, Roosevelt did not overuse this means of communicating directly with the people. He broadcast only about thirty fireside chats during his twelve years in office—two or three per year. And while he appealed to the common man and woman, he did so through rational argumentation, moderating the extremists on the left and right who took to the streets and airwaves during the Depression. Louisiana governor and senator Huey Long, until his 1935 assassination, attracted many poor and alienated Americans with left-­wing populist rhetoric, and Father Charles Coughlin, the “Radio Priest,” wooed right-­wing

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Catholics with fascist-­style messages. Combined with expansion of presidential power to address the Great Depression and World War II, and concurrent proliferation of executive branch bureaucracy, FDR’s link to the electorate represents the most significant turning point in the modern presidency. John  F. Kennedy’s administration marked the next milestone in White House public relations through skillful use of another technological upgrade, this time television. When Eisenhower was elected in 1952, only 20 percent of American households owned a television set. By Kennedy’s election eight years later, more than 80 percent of Americans did.5 Having briefly served as a newspaper reporter after World War II, JFK had a natural affinity for journalists. He counted Newsweek’s Ben Bradlee, Time’s Hugh Sidey, Life’s Theodore White, the New York Times’s Arthur Krock and Bill Lawrence, and columnist Joseph Alsop among his friends and informal advisers. But Kennedy’s longtime speechwriter Ted Sorensen observed that JFK saw reporters “as his natural friends and newspapers as his natural enemies.” Ironically, Sorensen noted, the president “was more concerned about a news column read by thousands than a newscast viewed by millions.”6 Perhaps it was because he had been devouring newspapers since his days in prep school and assumed they had more influence on the electorate and on thought leaders. Nevertheless, Kennedy mastered broadcast journalism. His understanding of the visual medium of television, bolstered by his father’s Hollywood production experience, made him a natural screen personality by the time he arrived at the first-­ever televised debate between presidential candidates in 1960. He bested Vice President Richard Nixon in the opinion of those who watched the initial debate on television, rather than listened on radio, in part because he knew what wardrobe and makeup looked best on black-­and-­white television, and in part because he presented himself as the cooler, calmer, and more reasonable candidate. Although he reached the people directly through new media, like Wilson and FDR before him, Kennedy represented the antithesis of a demagogue. Once in the White House, JFK turned his unprecedented live televised news conferences into an art form, filled with drama and his sparkling wit. It was “must-­see TV” at a time when households were gathered around the family television, which only offered at most three national networks. Sixty-­five million viewers tuned in to the first press conference just five days after Ken­ nedy’s inauguration. Polls indicated that 90 percent of Americans saw at least one of his first three conferences.7 In his 1,036 days in office, JFK gave on average two press conferences a month. Some journalists worried that the president’s televised news conferences gave him too much power to communicate directly with the people. When gadfly reporter Mae Craig asked the president at a February 1963 press conference if he was managing the news, JFK responded, “We’ve had

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very limited success in managing the news, if that’s what we’ve been trying to do.” Craig retorted that she thought journalists should “get everything we want,” and, with a wry smile, Kennedy agreed: “I think you should, too, Ms. Craig. I’m for that!” prompting laughter from the assembled reporters.8 Although First Lady Jackie Kennedy assiduously protected her young children from the prying press eye, when she was away, press secretary Pierre Salinger called in the cameras for beguiling photos of young Caroline and John Jr. frolicking with their dad. When Kennedy died, struck down by an assassin’s bullets in the streets of Dallas, the nation was riveted to his televised funeral and the on-­camera murder of his killer. Kennedy’s relationship to Americans, even those who hadn’t voted for him but now said they did, was so personal that many suffered a level of grief more common after the loss of a family member. Ironically, the “personal president” had been riding in an open limousine without Secret Service agents on the running boards because he wanted the throngs of crowds along the Dallas motorcade route to be as close to him and the First Lady as possible. There was no turning back from the televised presidency, but a presidential assassination on an American street meant that presidents would never again be as accessible to uncontrolled crowds. Kennedy’s Hollywood ties, which gave him an air of movie-­star celebrity, ran through his father, and to some extent his sister Pat, who married British actor Peter Lawford, a member of the Sinatra-­led “Rat Pack.” Ronald Reagan actually rose to fame in films and television series and thus became the first president to use media celebrity status as a launching pad to the White House. Many previous presidents—from Washington to Eisenhower—arrived at the nation’s highest office as celebrated military heroes, but Reagan’s presidency, coinciding with the dawn of 24/7 coverage on CNN and C-­Span, formed the perfect stage for a chief executive who was an expert at knowing his lines and hitting his marks. Both Kennedy and Reagan perfected the art and science of effectively creating presidential symbols. As Barbara Hinckley explains, political symbols “convey a larger range of meaning beyond themselves, with emotional, moral, or psychological impact. This larger meaning need not be independently true, but will tap ideas people want to believe in as true.”9 Reagan’s cowboy persona, created through his film roles and pictures of him vacationing at his California ranch, always wearing a white hat, embodied a heroic American image. His Rooseveltian optimism, portrayed in a 1984 Reagan reelection campaign ad with the tagline, “It’s morning again in America,” muted fears of economic recession and Cold War tensions. Although his brand of conservatism traced its modern roots to Arizona senator Barry Goldwater, who declared at the 1964 GOP convention that “extremism in the defense of liberty is no vice,” Reagan’s

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avuncular style tempered the harsher elements of right-­wing philosophy. Nevertheless, while avoiding the excesses of demagogic appeals, Reagan, like FDR, was not above promoting class-­based policies. He cloaked the ugliness of racial divisions in states’ rights rhetoric but nevertheless launched his 1980 campaign near Philadelphia, Mississippi, the heart of white supremacist violence twenty years previously.

Lessons in Presidential Communication Reagan’s presidency, especially in contrast to his immediate predecessor Jimmy Carter, left a legacy of ten leadership lessons on how to communicate with the people: Lesson 1: Have a vision and sell it. Jody Powell, press secretary to Carter, noted ruefully, “[W]e never did  .  .  . solve the problem of summing up what we were about. ”10 In contrast, former ABC White House correspondent Sam Donaldson recalled that Reagan’s deputy chief of staff, Michael Deaver, “could have sold the Edsel.” Lesson 2: “[U]se the symbolic aspects of the presidency to promote your goals and objectives.”11 The settings of Reagan’s compelling speeches at the Berlin Wall, on the Normandy beaches, and from the Oval Office after the Challenger explosion presented him as a strong chief executive and comforter-­in-­chief. Lesson 3: Link the president’s agenda to visual symbols. As Deaver recalled, “In ’82 we were desperate to get the economy to turn around. . . . I said, ‘Go find me the five cities in America where [housing starts are] going up the fastest.’ The next day we took everybody out to Ft. Worth, Texas. So the evening news that night is Reagan in a framed-­out house with a couple of carpenters.” Carter’s press secretary Gerald Rafshoon lamented the opposite reaction to a presidential speech: “A few days after he said in his first fireside chat that the energy program was the moral equivalent of war, [members of Congress complained], ‘[Y]ou’ve painted a picture that looks like everything’s going to fall apart.’” Lesson 4: Prioritize the president’s agenda. Rafshoon remembered the failure to do so in Carter’s administration: “In some areas the president was overexposed . . . and making a statement on every issue, which I thought was just awful. . . . It showed he had no priorities.” For Deaver, however, “there was never a question in my mind, ever, about what we were going to do . . . or what was important, because [Reagan] would have enunciated it. If you ever tried to get him off on something else, he would always come back to those things anyway.” Lesson 5: Create a succinct daily message. Even Carter realized after the fact that “there’s a general consensus  .  .  . that we tried to do too much too fast, and . . . as far as creating an image of consistency, achievement, or authority is

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concerned, that is right.” Reagan was so disciplined that when the press asked him a question he thought off-­message, he responded, “If I answer that question none of you will say anything about what we’re here for today. I’m not going to give you a different lead.”12 Lesson 6: Choreograph appearances for maximum visual effect. Deaver observed about controlling the Reagan messaging, “I just understood that if I could produce a picture that was so good that the producer in New York couldn’t refuse it, I could get on the news every night.” On the other hand, Carter relied too heavily on trying to make rational verbal arguments to the detriment of how they were perceived. Lesson 7: Produce pithy sound bites to express primary messages. One of the most memorable Reagan utterances almost failed to survive the rewrite process. His chief of staff, Howard Baker, told the president’s speechwriter, “‘Mr. Gorbachev, tear down this wall,’ you really ought to take that out. It’s so unlikely, it’s un-­ presidential. [The wordsmith] said, ‘But that’s where I’ll get my sound bite.’ I said, ‘Okay, then leave it in.’ . . . Those were Reagan’s words, as it turns out.” In contrast, Carter was not a skilled orator. In fact, he preferred freestyle Q & A sessions with the press to delivering formal speeches. Yet unscripted press gaggles presented him as unfocused, and he didn’t have JFK’s easy humor to leaven the exercise. Lesson 8: Keep presidential surrogates on message. Reagan’s advisors knew that the key to coherence was controlling who delivered the message. If cabinet members differed among themselves or with the president on policies, they would not appear on public affairs television shows. Yet the administration suffered from leaks, as most presidencies do. Reagan advisor Lyn Nofzinger cautioned, “‘Mr. President, we’ve got to do something about all these leaks. They’re hurting you.’ [Reagan] said, ‘Well, I would if I knew who was leaking.’ I said, ‘I’ll give you a list.’ I did, and nothing happened. He didn’t like personnel problems. ” Lesson 9: Leverage campaign themes to bolster presidential symbols. The optimism of Reagan’s 1980 election campaign carried over to the White House. His strong belief and confidence in himself, the American people, and God, Nof­ zin­ger recalled, translated into positive images. Reagan also reinstated some of the grander symbols of the presidency, like playing “Hail to the Chief,” which Carter had eliminated in the post-­Watergate era. Lesson 10: Relate the president’s media talents to symbols. Reagan “thought of himself as a good actor,” according to Deaver. It didn’t matter that he had never won an Oscar; everyone remembered his portrayal of a dying George Gipp, the Notre Dame football star, in Knute Rockne: All American. The immortal line, “Win one for the Gipper,” followed Reagan to the White House. Carter, whose media talents were minimal compared to Reagan’s, recognized too late that “the news media leaders . . . were such an important element of government in Washington. And I underestimated that.”

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The Road to Trumpism No one could have predicted that Reagan’s road to the presidency through Hollywood would lead to a more dangerous route to the White House. Reality TV star and real estate mogul Donald Trump ushered in the social media presidency that places the office at a perilous intersection of democracy and demagoguery. Universal suffrage, combined with the Twitterverse, have magnified populism’s consequences. The president can now directly message voters 24/7, without the mediating influence of journalists. Voters, in turn, have a direct link to the White House. The United States has now inched closer to realizing the ancient Athenian fears of a leader who plays to the mob. Trump’s reliance on prevarications and ginning up demographic divisions places him that much closer to the modern definition of demagogue. The Founders established the Electoral College to prevent just this kind of candidate from winning the presidency, but they could not have foreseen how the electoral vote would depart from their model of a deliberative body, which could have served as a check on an expanded electorate’s base instincts, aroused through social media. Upending the rationale for indirect election of American presidents, the demagogic candidate scored a lopsided electoral vote victory over Democrat Hillary Clinton (304–227), while she outpaced him by a margin of nearly three million popular votes. For good or ill, the Electoral College magnifies the voting power of small states to the detriment of large ones. The Founders might even accept this inevitable evolution of their constitutional structure—except for its election of a demagogic president. Being a “pathological liar,” as Bush presidential adviser Peter Wehner labeled Trump,13 he declared the official popular vote totals to be erroneous. Such a statement is just one of the thousands of lies Trump uttered during his presidency, according to the Washington Post. On average, during the 2018 midterm election campaign, he expressed thirty per day and, by mid-­2020, had totaled over 19,000.14 The link between Reagan’s leadership lessons as the first celebrity president and Trump’s social media presidency is strong. No matter how chaotic his administration or governing style, Trump followed, even if unwittingly, the Reagan model. He effectively sold his vision to “Make America Great Again,” first uttered in Reagan’s 1980 convention acceptance speech, so much so that Trump’s red-­hatted version of it is ubiquitous, along with its acronym “MAGA.” As often as possible, he cloaked himself in the symbols of presidential power— the White House, Air Force One, the Rose Garden, the Resolute Desk, the Oval Office, and press gaggles on the South Lawn as Marine One’s blades whir in the background. At the 2019 CPAC conference, Trump literally hugged the American flag. “Building the wall,” cutting taxes, and placing conservatives on

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the federal courts were all clear clarion calls to unite his core base of rural, evangelical, “noncollege,” and Republican voters who cast their ballots for him.15 Although he wandered aimlessly across the Twitter landscape, seemingly muddling his daily message, Trump always returned to these priorities, even shutting the government down in an impasse with congressional Democrats over funding for his border wall. His clear adherence to goals garnered 80 percent approval among Republicans, even in the midst of the devastating COVID-­19 epidemic.16 As comforter-­in-­chief Trump lacked empathy, tossing paper towel rolls to Puerto Rican victims of Hurricane Maria and barely mentioning the mounting death toll of coronavirus victims, but he knew the value of choreographing a visit to the Mexican border to highlight the need for a barrier to secure the nation from what he consistently described as murderous and rapacious illegals. Like Reagan’s advisers, Trump’s surrogates leaked to the press, and many of them left the administration of their own accord.17 He didn’t even have to confront, as Reagan did, the uncomfortable possibility of firing them— although Trump’s reality TV tagline (“You’re fired!”) made him seem to his supporters like the perfect instrument to drain the Washington swamp.

A New Presidency in Comparative Context In the context of this new version of the “personal president,” a third “constitutional presidency” (in Tulis’s terms) has emerged at this current crossroads, in which a celebrity candidate used demagoguery to capture the White House. The Founders’ formal office is being overtaken not just by the rhetorical but by the demagogic presidency. The original constitutional structure may not be strong enough to withstand these modern developments in government, politics, media, and the polity. If Donald Trump is best understood through the lens of demagoguery, how can that construct explain his rise to power? From the moment he rode down an escalator in Trump Tower in June 2015 to announce his candidacy for president, Trump was underestimated. The conventional theory posited that Trump’s gamble for the White House was a long shot, and polling reinforced the prediction that Hillary Clinton would likely win both the popular and electoral vote by convincing margins. What did the polling fail to capture? Why did Trump’s victory take some people, especially elites, by surprise? It may be enlightening to frame Donald Trump’s election in a wider, transatlantic context. By understanding how Trumpism took hold, and how it is related to other larger trends, we might better understand what comes after Trump, and what lasting effects his political style may have on the American presidency. Is this demagogic president a blip on the radar? Will we somehow revert to something that more closely resembles “pre-­Trump” modern

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presidents? Or can the demagogic presidency actually be understood as a new phenomenon, one that might be indicative of a larger shift in global politics? Trump’s 2016 election victory shocked many voters, analysts, and perhaps even the president-­elect himself.18 From the moment it became clear that he would become president of the United States in a historic upset, scholars, pundits, and journalists have attempted to explain Trump’s triumph. What did it mean? How could the polls be so wrong? How did a candidate so consistently defy all political norms and still win? What, if anything, did this upset indicate about the American public’s rejection of the so-­called political establishment and status quo in Washington or, more broadly, of a “global order” toward which Trump showed virulent hostility? Trump ran on the idea that he, as an outsider, was the only one who could effectively “drain the swamp” that the nation’s capital had become. “I alone can fix it. I will restore law and order,” candidate Trump declared at the 2016 Republican convention, and the delegates roared their approval.19 His description of the muck and mire of Washington appealed to America’s revolutionary roots based in deep suspicion of centralized power. As political scientists John R. Hibbing and Elizabeth Theiss-­Morse explain, Americans see Washington as “evil and nasty.”20 Attempts to situate Trump on a political or ideological axis often fall short. In a brief period of time, he shifted the Republican platform in important areas of foreign policy and trade, many of which had been considered GOP orthodoxy, such as a commitment to free trade and a rejection of tariffs. A more accurate template for situating Trump, and Trumpism more broadly, is as part of the wider emergence of demagogues and right-­wing populism. He shares many of the same traits as several right-­wing demagogues and populist movements in Europe. As some fear, this phenomenon may be indicative of a troubling rejection of democratic values, globalism, and perhaps even liberal international order. Can populism help to explain Trump’s rise to power and his penchant for demagoguery? Populism, as a concept, is hard to position in a traditional political ideology quadrant distinguishing between social liberalism, economic liberalism, social conservatism, and economic conservatism. Because populism is an attitude rather than an ideology, there is no scholarly consensus on what it means, or whether it is a useful concept in an applied sense. Although populist leaders tend to emerge from all over the political spectrum, some common threads unite them. Most specifically, as political scientists Cas Mudde and Cristobal Kaltwasser note, “populism is a thin-­centered ideology that considers society to be ultimately separated into two homogeneous and antagonistic camps.”21 A common theme of populist movements is the designation of and reliance on a rigid understanding of “us” and “them.” Populists divide political communities, rather than rising to power with the promise of unity. They often portray the

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“us” that they claim to represent as victims, as a group under assault from an opposing group. This Manichean worldview is often superimposed on another political ideology. In left-­wing populism, the “Other” is frequently portrayed as a dominant elite, whereas in right-­wing populism, the “Other” tends to be a subordinate or disenfranchised population.22 If parallels can be drawn between the rise of Trump in the United States and the resurgence of right-­wing populist regimes in Europe, it is apparent that the common thread is a brand of ideology that demonizes immigrants, globalists, and the political “establishment.” These characteristics can be seen, to varying degrees, in the Brexit referendum’s “Leave” campaign, Victor Orban’s rise to power in Hungary, Matteo Silvini’s anti-­EU and anti-­immigration rhetoric in Italy, and the increasingly autocratic Erdogan regime in Turkey. Populists tend to use simple language, opting for dichotomies and black-­ and-­white portrayals of the world that lack nuance. There are clear “winners” and “losers” in this framework—and often the claim is made that the “real people” have been on the losing end for too long. Uri Friedman observes an interesting shift in Donald Trump’s rhetoric after Steve Bannon joined his campaign, noting that Bannon introduced populist rhetoric of a “real people” and a “we” that was not present in many of Trump’s early speeches, when he largely spoke in the first person.23 The implication is that Trump was not always a populist-­minded politician, but rather that it became politically expedient for him to use the language of populism. Nevertheless, while Trump may not have always shown a defined populist tendency, his public rhetoric was vitriolic and demagogic long before he launched his presidential campaign. The crude language and “rabble-­rousing” were part of the public persona of Donald Trump the real estate developer and the reality TV star before he took up residency in the White House. Certainly his conspiratorial rants against President Barack Obama’s origins demonstrate a clear desire to stir base emotions against immigrants, African Americans, and Muslims. Although populism can be an imprecise term when used to describe political movements or a rhetoric that positions “the people” against “the establishment,” demagoguery is more specific. Demagogues will often use scapegoating, fearmongering, or vulgarity to drum up support for their cause. This combination of a call to action on behalf of “the people” with lies, half-­truths, and hyperbolic language places Trump squarely in the demagogue category. He stirred populist elements at the 2016 GOP convention by declaring, “I am your voice.” In contrast, American presidents of both parties have typically appealed to higher powers and authorities such as God, the Constitution, and cultural values to inspire the electorate.24 In so doing, starting with George Washington, they may have transformed the presidency into a “civil-­religious leader,” argues political scientist Thomas S. Langston, from which two categories of presidents

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have emerged: priestly and prophetic. The former “represent the people before God and in so doing celebrate and comfort the people. Presidents in the latter tradition, by contrast, represent God before the people and call them sternly to judgment.”25 Langston asserts that both of these forms of “priest-­kings” are doomed to failure by disappointing voters who have invested too much hope in them. Yet appealing to the Lincolnesque “better angels of our nature” seems a much-­preferred rhetorical device than demagogues’ reliance on the electorate’s baser instincts. While the demagogic brand of politics is on the rise across parts of Europe, it may be too soon or simplistic to suggest that there is a direct correlation between the rise of Trump in the United States and similar troubling trends across the Atlantic. Right-­wing governments in many European countries are ascending, but the rhetoric of overt anti-­immigrant policies or distrust of “global elites” has been especially visible on the American stage. The differences between parliamentary and presidential systems may account, in part, for this fact. Without a winner-­take-­all system, many smaller extreme parties in European countries can achieve representation more easily in national politics. Moreover, in Europe, skepticism and rejection of a shared European experience have firm roots in the European Union’s history. This Euroskepticism has laid the groundwork for the growth of political movements in the United Kingdom, Hungary, and Poland that call for an explicit rejection of the political, cultural, and economic integration that is the EU’s bedrock.26 Although Euroskepticism is demonstrably on the upswing, it is not a completely unforeseen trend. Trump’s rise to power, in contrast, appeared more surprising to many observers. Moreover, American institutions differ from those in many European countries—in some ways they are stronger, in other ways weaker. Yet enough common themes exist between the rise of Trumpism in America and some movements taking hold in Europe to ask how they may be part of a larger shift in global politics. Explicitly nativist language, antiglobalization, and scapegoating media or labeling them the “enemy of the ­people” are among the similarities. The rise of right-­wing populism, especially in the form of anti-­immigrant and anti-­trade sentiments, is a reaction to the promises of global capitalism and neoliberalism that have never been realized. In other words, the hope that the rising tide of global markets and economic interdependence would “lift all boats” has not been the reality for many people around the globe, whether in developing countries or in Europe and North America. As some workers saw jobs leaving their communities or disappearing via automation, they became disillusioned with the negative consequences of globalization. This anger often has been transposed onto immigrants or other vulnerable groups in society. In the American context, Trump capitalized on these sentiments and stoked the fires of antiglobalism.

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Trump won the presidency by relying on “unconventional” logic and positions that diverged measurably from standard Republican orthodoxy. He consistently questioned the value of free trade agreements, argued for increased tariffs, and criticized “global elites,” promising that only he could provide the solution to globalism’s ills and inequities.27 His “America First” ideology was not the standard Republican Party platform of the previous two decades, in which free trade was upheld as essential to prosperity. It was his business acumen, Trump claimed, that would allow him to renegotiate deals to “make America rich again.”28 A dimension of Trump’s election can be explained by economics, but it certainly cannot account for the Trumpism phenomenon entirely. More than economics is required to allow a populist leader to take hold. As a joint study between the Center for American Progress and the American Enterprise Institute has shown, “economic hardship appears to be only weakly related to support for authoritarian populists in polling data.”29 Even economic inequality cannot entirely account for the rise of populist rhetoric. The resurgence of right-­wing populism is a concern in some European countries with comparatively low levels of income inequality, like the United Kingdom and Austria.30 In addition to economic factors, socio-­ cultural and political dimensions contribute to the emergence of populism in a society. Populist rhetoric becomes appealing in societies that find themselves at a crossroads—political, cultural, or economic. From the moment he announced his candidacy for president, Donald Trump deployed racially charged rhetoric about immigration across the southern border of the United States. Americans were, he claimed, being taken advantage of by other countries, through immigration, unfair trade practices, and job outsourcing. The focus on immigrants as the “Other” has also been particularly salient in some of the right-­wing populist movements in Europe. Dissatisfaction with immigration was a major factor in the “Leave” campaign during the Brexit vote.31 In France, Marine Le Pen has continued her father’s legacy as the leader of the National Front, which has long used resistance to immigration, especially from Africa, as one of its main calls to action.32 Viktor Orban, Hungary’s prime minister, has gone as far as to call for the EU to be taken over by “anti-­migration” politicians.33 Understanding Trump’s rise to the presidency as part of a wider cross-­national rejection of globalization and economic interdependence helps to frame his style of populism as more than an aberration with no repercussions for the American presidency.

Brexit and Skepticism of the European Project How can we understand the intersection between economic and other sociocultural factors, like immigration and fear of the “Other,” in the rise of

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populism? Although Donald Trump’s relative popularity (hovering fairly consistently in the mid-­forties) cannot be understood as a direct parallel to the general trend toward Euroskepticism, nationalism, and populist rhetoric in Europe, the transatlantic trend can be put in broader context. The rejection of global institutions and the embrace of nativism is arguably a reaction to the effects of global capitalism and a neoliberal world order that has not delivered on many of the promises that were made in the name of free trade. The triumph of global capitalism and liberal democracy in the post–Cold War era, which led some scholars to declare the “end of history,”34 has long faced resistance in many countries on the periphery of global markets. In many ways, we are now seeing a political rejection in the West of globalization and all of its promises of shared prosperity, interdependence, and the general “flattening” of the world.35 This trend is clearly under way in Europe and rejects President George H. W. Bush’s “new world order” in which the hope was that triumph over communism would result in a worldwide embrace of American-­style (or at least western) democracy and its institutions. The increasing dissatisfaction with the European project is concerning for the future of the European Union as a unifying force on the continent. Without the United Kingdom, the European Union loses a major political and economic force. More important, perhaps, is the symbolism of the UK’s vote of no confidence in the European Union itself. It is unprecedented: a member state had never before left the EU. Beyond the bureaucratic nightmare of disentangling decades of interdependence, Brexit raises real concerns about the confidence in Europe as a political concept. Even internal migration within the European Union has proven to be a point of painful contention. Similar resistance to immigration both from within the EU and beyond is a factor in the political rhetoric and rise of nationalist groups in many member states, including Germany, Austria, France, Hungary, Poland, and Italy.36 Ironically, nationalism and nativism have partially resulted from the influx of Muslim refugees from the Middle East and Africa, escaping the upheavals wrought by the Arab Spring. The overthrow of authoritarian regimes in the midst of the Global War on Terror was hailed by American presidents as the dawn of a democratic age in Middle Eastern and African countries. Yet Trump consorted with and praised tyrannical dictators in North Korea, Saudi Arabia, and the Philippines. Whatever lies ahead for the European Union, it is clear that there is deep resistance to the values and realities of genuine interdependence on the continent. Even if Euroskepticism does not describe the majority view in most member states, it is obvious that this sentiment is rising. If referenda were held across the continent, enough support for other countries to abandon the EU might well be found to exist.

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Distrust of the so-­called establishment and political, financial, journalistic, and academic elites is deployed by populists in both the United States and Europe, as is the fear of the “Other.” Trump himself noted and took advantage of the similarities in these trends in Europe during his first election, including having British Euroskeptic Nigel Farage accompany him on the campaign trail in August 2016.37 Trump was a vocal supporter of Brexit, going as far as to say that “migration has been a horrible thing for Europe.”38 Can we call Donald Trump a populist? A demagogue, like a populist, typically gains support by ostracizing or blaming an outside group. Although Trump deployed populist rhetoric as part of his brand of politics, he often went much further than simply speaking to the needs of the downtrodden or “common” person. Populism is a broad category that can be used to describe many types of political movements. The term has, in fact, also been applied to Senator Bernie Sanders’s criticism of “elites” and what he argues is systemic inequality in the United States. Yet this framing fails to account for a key difference between Trump and Sanders. Trump’s reliance on some of our worst instincts, like the tendency to single out and blame vulnerable populations for our own misfortunes, moves him beyond simply being understood as a populist. Trumpism shares some key characteristics with other notable right-­wing leaders in Europe, who may be better understood as demagogues. In this way, it is more accurate to describe Trump not simply as a populist, but more specifically as a demagogue. As such, the Trump presidency made a perilous turn at this historic crossroads. Its occupant’s personal connection with an increasingly populist electorate, particularly through the blunt instrument of Twitter, utterly perverted both the formal constitutional presidency of the founding era and the rhetorical presidency of the Wilsonian period. The Founders’ elaborate mechanism of checks and balances, through which “ambition must be made to counteract ambition,”39 can only operate effectively when both governors and governed accept these “republican remedies” for “the diseases most incident to republican government.”40 But as Michael Signer argues, demagogues engage in “renegade behavior” that includes “obliterating the rules that allow normal governance.”41 Former CIA Director Michael Hayden has described the thin veneer of democracy that cracked in the Balkans during the 1990s war. When asked how thick the layer of American democracy was over the United States’ divisions, he responded that it would take more than four years to crack it but fewer than eight.42 What is clear is that we can understand Trump’s presidency in a broader context of America at a crossroads. When given the choice between continuity or disruption in 2016, Americans chose disruption. The question, to paraphrase General Hayden, is how much disruption the American constitutional system can absorb.

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Notes 1. Jeffrey Tulis, “The Two Constitutional Presidencies,” in The Presidency and the Political System, ed. Michael Nelson, 10th ed. (Washington, D.C.: CQ Press, 2013), 1–32. 2. Theodore J. Lowi, The Personal President: Power Invested, Promise Unfulfilled (Ithaca, N.Y.: Cornell University Press, 1985), 20. 3. Jack C. Plano and Milton Greenberg, eds., The American Political Dictionary, 8th ed. (New York: Holt, Rinehart and Winston, 1989), 65. 4. Alexander Hamilton, Federalist No. 1, in The Federalist Papers (New York: Mentor, 1961), 35. 5. Barbara A. Perry, Jacqueline Kennedy: First Lady of the New Frontier (Lawrence: University Press of Kansas, 2004), 4. 6. Theodore C. Sorensen, “The Kennedy I Knew,” Look, August 24, 1965, 41. 7. “The Kennedy Press Conference, Always Good for a Laugh,” New England Historical Society, http://​www​.newenglandhistoricalsociety​.com​/president​-­­john​-­­f​-­­kennedy​-­­gets​ -­­laugh​-­­another​-­­another/. 8. John F. Kennedy, News Conference 50, February 21, 1963, John F. Kennedy Library, https://​www​.jfklibrary​.org​/archives​/other​-­­resources​/john​-­­f​-­­kennedy​-­­press​-­­conferences​ /news​-­­conference​-­­50. 9. Barbara Hinckley, The Symbolic Presidency: How Presidents Portray Themselves (New York: Routledge, 1990), 7. 10. All quotes on the lessons of Reagan’s presidency are from the Miller Center’s Carter and Reagan oral histories, unless otherwise indicated. https://​millercenter​.org​/the​-presi ­­ dency/presidential-​ ­­oral-​ h­­ istories/​ jimmy-​ ­­carter;https://m ​ illercenter.​ org/​ the-​ p­­ residency/​ presi dential​-­­oral​-­­histories​/ronald​-­­reagan. 11. Dick Cheney, as quoted in John Maltese, Spin Control: The White House Office of Communications and the Management of Presidential News, 2d ed. (Chapel Hill: University of North Carolina Press, 1994), 2. 12. Quoted in ibid., 198. 13. Jonathan Rauch and Peter Wehner, “Republicans Got Us into This Mess, and They Have to Get Us out of It,” New York Times, February 8, 2019, https://​www​.nytimes​.com​ /2019​/02​/08​/opinion​/sunday​/trump​-­­impeachment​-­­resignation​-­­republicans​.html. 14. Glenn Kessler, Salvador Rizzo, and Meg Kelly, “President Trump Has Made 6,420 False or Misleading Claims Over 649 Days,” Washington Post, November 2, 2018, https://​ www​. washingtonpost​.com​ / politics​ / 2018​/ 11​ / 02​ / president​ -­­t rump ​ - ­­has ​ -­­made ​ - ­­f alse ​ - ­­o r​ -­­misleading​-­­claims​-­­over​-­­days​/​?utm​_term​=​.8c151f15ce47; Kessler, Rizzo, and Kelly, “President Trump Has Made 19,127 False or Misleading Claims in 1,226 Days,” Washington Post, May 29, 2020, https://​www​.washingtonpost​.com​/politics​/2020​/06​/01​/president​-­­trump​ -­­made​-­­19127​-­­false​-­­or​-­­misleading​-­­claims​-­­1226​-­­days/. 15. Rauch and Wehner, “Republicans Got Us into This Mess, and They Have to Get Us out of It.” 16. Jason Lemon, “Trump’s Approval Rating among Republicans Drops,” Newsweek, July 8, 2020, https://​www​.newsweek​.com​/trumps​-­­approval​-­­rating​-­­among​-­­republicans​ -­­drops​-­­poll​-­­five​-­­pull​-­­out​-­­rnc​-­­1516298. 17. Kathryn Dunn Tenpas, “Tracking Turnover in the Trump Administration,” Brookings Institution, January 2019, https://​brookings​.edu​/research​/tracking turnover in the trump administration​/. 18. Nolan McCaskill, “Trump Tells Wisconsin: Victory Was a Surprise,” Politico, December 13, 2016, https://​www​.politico​.com​/story​/2016​/12​/donald​-­­trump​-­­wisconsin​-­­232605. Michael Nelson, Trump’s First Year (Charlottesville: University of Virginia Press, 2018), 5–6.

152  B a rb a r a A . Perry a nd Stefa nie Georg a kis A bbot t 19. Yoni Appelbaum, “‘I Alone Can Fix It,’” Atlantic, July 21, 2016, https://​www​.theatlantic​ .com​/politics​/archive​/2016​/07​/trump​-­­rnc​-­­speech​-­­alone​-­­fix​-­­it​/492557/. 20. John R. Hibbing and Elizabeth Theiss-­Morse, Congress as Public Enemy: Public Attitudes toward American Political Institutions (Cambridge: Cambridge University Press, 1995), 87. 21. Cas Mudde and Cristobal Rovira Kaltwasser, Populism, a Very Short Introduction (New York: Oxford University Press, 2017), 6. 22. Pierre Ostiguy and Kenneth Roberts, “Putting Trump in Comparative Perspective: Populism and the Politicization of the Sociocultural Low,” Brown Journal of World Affairs 23, no. 1 (Fall/Winter 2016): 39. 23. Uri Friedman, “What Is a Populist? And Is Donald Trump One?” Atlantic, February 27, 2017, https://​www​.theatlantic​.com​/international​/archive​/2017​/02​/what​-­­is​-­­populist​ -­­trump​/516525/. 24. Appelbaum, “‘I Alone Can Fix It.’” 25. Thomas S. Langston, With Reverence and Contempt: How Americans Think about Their President (Baltimore, Md.: Johns Hopkins University Press, 1995), 13. 26. Jose Ignacio Torreblanca and Mark Leonard, “The Continent-­wide Rise of Euro­ scep­ticism,” European Council on Foreign Relations, https://​www​.ecfr​.eu​/page​/​-­­​/ECFR79​ _EUROSCEPTICISM​_BRIEF​_AW​.pdf. 27. Appelbaum, “‘I Alone Can Fix It.’” 28. Eli Stokols, “Unapologetic, Trump Promises to Make America Rich,” Politico, May 26, 2016, https://​www​.politico​.com​/story​/2016​/05​/unapologetic​-­­trump​-­­promises​-­­to​-­­make​ -­­america​-­­rich​-­­223632. 29. Dalibor Rohac, Liz Kennedy, and Vikram Singh, Drivers of Authoritarian Populism in the United States, Center for American Progress and American Economic Institute, May 2018, 7, https://​cdn​.americanprogress​.org​/content​/uploads​/2018​/05​/09110447​/US Populism​-­­report​-­­1​.pdf. 30. Ibid., 8. 31. Kim Hjelmgaard and Gregg Zoroya, “Exploding UK Immigration Helped Drive ‘Brexit’ Vote,” USA Today, June 28, 2016, https://​www​.usatoday​.com​/story​/news​/world​ /2016​/06​/28​/exploding​-­­uk​-­­immigration​-­­helped​-­­drive​-­­brexit​-­­vote​/86424670/. 32. “What Does France’s National Front Stand For?” France 24, May 28, 2014, https://​ www​.france24​.com​/en​/20140528​-­­france​-­­national​-­­front​-­­policy​-­­eu. 33. Shaun Walker, “Viktor Orban Calls for Anti-­migration Politicians to Take Over EU,” Guardian, January 10, 2019, https://​www​.theguardian​.com​/world​/2019​/jan​/10​/viktor​ -­­orban​-­­calls​-­­anti​-­­migration​-­­politics​-­­take​-­­over​-­­eu​-­­matteo​-­­salvini. 34. Francis Fukuyama, “The End of History?” National Interest, no. 16 (Summer 1989), https://​www​.jstor​.org​/stable​/24027184​?seq​=​1​#metadata​_info​_tab​_contents. 35. Thomas Friedman, The World Is Flat: A Brief History of the Twenty-­first Century (New York: Farrar, Straus and Giroux, 2005). 36. Ian Wishart, “Brexit Is Happening. The EU Has Bigger Things to Worry About,” Bloomberg, November 13, 2018, https://​www​.bloomberg​.com​/news​/articles​/2018​-­­11​-­­13​ /brexit​-­­is​-­­happening​-­­the​-­­eu​-­­has​-­­bigger​-­­things​-­­to​-­­worry​-­­about. 37. Matthew Teague, “Farage at Trump Rally: ‘I Wouldn’t Vote for Clinton If You Paid Me,’” Guardian, August 25, 2016, https://​www​.theguardian​.com​/us​-­­news​/2016​/aug​/24​ /nigel​-­­farage​-­­donald​-­­trump​-­­rally​-­­hillary​-­­clinton. 38. Sam Levin, “Donald Trump Backs Brexit, Saying UK Would Be ‘Better Off ’ without EU,” Guardian, May 5, 2016, https://​www​.theguardian​.com​/us​-­­news​/2016​/may​/05​/donald​ -­­trump​-­­brexit​-­­uk​-­­leaving​-­­european​-­­union. 39. James Madison, Federalist No. 51, in The Federalist Papers, 322.

The Personal Presidency  153 40. Madison, Federalist No. 10, in ibid., 84. 41. Michael Signer, “Yes, the President Is Undignified. Demagogues Like Him Have to

Be,” Washington Post, March 10, 2019, B1. 42. James Clapper and Michael Hayden, “Threats to Freedom and Democracy,” C-­Span, October 31, 2018, https://​www​.c​-­­span​.org​/video​/​?453857​-­­1​/james​-­­clapper​-­­michael​-­­hayden​ -­­discuss​-­­threats​-­­democratic​-­­institutions. See also Steven Levitsky and Daniel Ziblatt’s compelling book How Democracies Die (New York: Crown, 2018).

CIVIL-­M ILITARY REL ATIONS Crossroads and Cross-­Currents BR A D LE Y R . D E W EES

In February of 2017 newly elected President Donald Trump made an unannounced trip to Dover Air Force Base in Delaware. Traveling directly from the White House via helicopter, he kept the trip out of the public spotlight. He allowed only a limited number of press to accompany him, and strictly on the condition that they would not report the trip until he had returned to the capital. Eventually, the press would write about the president’s attendance at what is known as a “dignified transfer,” or the passage of a fallen U.S. service member, in a flag-­draped casket, from a transport aircraft to Dover’s military mortuary. This particular transfer was for Senior Chief Petty Officer William “Ryan” Owens, thirty-­six, who had been killed in combat operations in central Yemen three days earlier.1 As six military guards carried Senior Chief Owens off the plane, President Trump saluted alongside his daughter Ivanka, Senator Chris Coons (D) of Delaware, and members of Owens’s family. Owens’s family chose not to allow pictures of the transfer, but the scene itself, and much of what came before and followed after, embodied the many tensions that characterize U.S. civil-­military relations in the twenty-­first century. The scene featured a new president, one inexperienced in the role of commander-­in-­chief, or even military affairs more generally, who was nonetheless ultimately responsible for Owens’s life. In this sense, the scene captured the separation between authority and expertise that has come to characterize civil-­ military relations: for presidents, military expertise is not required to make military decisions. Such a separation is nothing new—with only a handful of exceptions, the Oval Office has historically been home to presidents with less military experience than the senior officers over whom they hold authority. Still, the scene at Dover took place in an era when presidential experience both with and in the military has become less common. The scene also embodied both a sense of gratitude and a lack of understanding—gratitude for the service of Senior Chief Owens, and a lack of understanding of what he and the rest of the military do on a daily basis around the world.2 President Trump’s presence at the dignified transfer of a single soldier was a powerful, uncommon gesture 154

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(presidential attendance is more common for transfers of multiple casualties). The president’s attendance embodied the unequivocal respect that the American people have for members of the military like Owens. Still, in the aftermath of the tragedy, it would become clear that even relatively engaged citizens lacked answers to basic questions: Why were Owens and his team in Yemen? How did their mission further U.S. interests, and at what cost? The tensions in the scene at Dover may seem like the result of shortcomings, either of the president, the military, or U.S. citizens. The tensions, though, have less to do with shortcomings than with long-­term trends in U.S. civil-­military relations. The most important of these trends is that, when the presidency comes to a crossroads between civilian and military interests, civilian interests prevail. This is true on a superficial level, as when presidents disagree with their military advisors. Whether the president was Lincoln or Truman or Obama, presidents have always had the final say in public arguments with their generals, no matter how decorated the general. But the prevailing of civilian interests is also true on a deeper level. The presidency—always a civilian office per the “capital-­C Constitution”—has become increasingly civilian in “small-­c constitution,” as military credentials have become less important to winning the role of commander-­in-­chief. A second trend is that military technology has advanced fairly continuously over time, much the same way civilian technology has advanced fairly continuously over time. One consequence of this trend is that military operations have grown increasingly complex, from groups of soldiers marching in unison to networks of soldiers, sailors, airmen, and marines operating across land, sea, air, space, and cyberspace. The two trends pull in different directions: at the same time that presidents have been increasingly free not to think about military affairs, military affairs have grown in complexity and demanded more thought. This has left presidents straddling an increasingly widening divide: the gap between civilian understanding and military expertise is growing. This gap ultimately affects the national security decisions that presidents make. Although the divide eventually manifests in the Situation Room, fully understanding the divide and its broader ramifications requires venturing beyond the White House. As with most things presidential, civil-­military relations entail much more than presidents and those immediately around the president. In an era when warfare is as much about software as it is about tanks and bullets,3 civil-­military relations also depend on how military officers interact with civilians on the leading edge of technological change. And in a time when all service members voluntarily don the uniform, civil-­military relations depend on how everyday citizens think about and interact with the military that serves them.

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Presidents, Entrepreneurs, and Citizens In short, understanding the civil-­military divide requires understanding several layers of civilian and military relationships. One layer is comprised of elites—presidents and generals4—whose focus is the security policy of the United States. Another layer is comprised of technology developers—civilian entrepreneurs and military acquisitions officers—whose focus is the money, time, and talent that are often pulled in different directions by the goals of security and prosperity. A final layer, perhaps the most important, is comprised of everyday citizens and the soldiers, sailors, airmen, and marines who serve. The focus of their relationship is, respectively, what it means to be a good citizen and a good service member. These three fundamental relationships—between the president and the general, the entrepreneur and the acquisitions officer, and the citizen and the soldier—share key similarities. In all three, civilian interests come first: presidents have “a right to be wrong” about strategy,5 entrepreneurs have the right to say no to a deal, and citizens have the (de facto) right to avoid military service.6 The relationships are also similar in that each shifts reliably in favor of the military at the prospect of violence, which triggers deference to those who physically face danger. Once military campaigns begin, presidents become more likely to yield to generals,7 entrepreneurs become more likely to produce military-­exclusive products, and citizens become more likely to honor soldiers. These similarities, however, mask important differences that distinguish the three relationships from one another. Each relationship is characterized by its own idiosyncrasies. In the current era, each is also experiencing its own form of civil-­military division. Although general officers’ interests remain secondary to presidential interests, generals have found that an increasingly complex and uncertain security environment gives them more autonomy to pursue the strategies that they deem best, with less oversight from presidents. At the president-­general level, the civil-­military balance is shifting in favor of the military, which is not necessarily good for security. In business, on the other hand, the shift has gone the other direction. In the entrepreneur–acquisitions officer relationship, military acquisitions officers have usually been the ones with the bargaining power. They command tremendous budgets and often represent the sole buyer in a market. With the flourishing of the tech industry, however, that has begun to change. The military acquisitions officer has gone from being the most important player in high tech to being one customer among many, at least for cutting-­edge acquisitions that aim to capitalize on developments in artificial intelligence and robotics. Here, the civil-­military balance is shifting in favor of the civilians. This change, if anything, is likely to be good for security.

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The citizen’s and soldier’s relationship is perhaps the most intricate. Against the acrimonious light of the Vietnam era, the citizens and soldiers of today appear to get along well. Beneath regular displays of respect for the military, however, is an increasing lack of understanding. In terms of where they live, how they are educated, and how they view the world and politics, the two sides are growing apart. Here, there is no shift in favor of either side. Citizens and soldiers understand each other less, and both are worse off as a result. The remaining sections of this essay examine each of these relationships in turn, adding analysis and evidence to the claims above. A common theme throughout these sections is that each relationship is changing. The focus on change, however, should not obscure what has long been consistent in civil-­ military relations. Namely, despite having all the firepower, there is no real possibility of a coup in the United States because its military so values deference to democratically elected civilian leaders.8 On this most important dimension, civil-­military relations have never faced a serious crossroads. On a host of other, still-­important dimensions, however, civil-­military relations are changing.

The President and the General Eight years before President Trump made his trip to Dover, President Barack Obama was developing his own experience with civil-­ military relations. Obama had campaigned on the message that Afghanistan, rather than Iraq, was the conflict on which the United States should focus.9 Now that he was responsible for strategy in Afghanistan, it was time to decide just what steps to take. President Obama hoped to entertain a wide range of possible strategies, including ones that entailed a reduced number of troops in the country. His lead general in Afghanistan at the time, General Stanley McChrystal, however, proposed various strategies that all increased the number of soldiers in Afghanistan. Wishing to avoid a public disagreement with a distinguished general, President Obama eventually signed off on a troop surge.10 Months later, in one of the better known civil-­military incidents of the twenty-­first century, President Obama fired General McChrystal after the general and his staff made crude comments in front of a writer for Rolling Stone magazine. Among other things, members of the general’s staff reportedly nicknamed Vice President Biden “bite me,” and labeled the president’s national security advisor “a clown.”11 Under a constitution that places power in the hands of civilians, an example of a president firing a general may seem like a case study in healthy civil-­military relations. When a public row surfaced between the commander-­in-­chief and his general, the president asserted authority. This reading would be too simple, however, confusing organizational form for real power. On the initial question of strategy in Afghanistan, General

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McChrystal and his staff so thoroughly controlled the menu of options that they foreclosed any options that were not favorable to the military’s viewpoint. As for the firing, it resulted less from a judgment of military or strategic incompetence and more from a judgment of the political consequences of allowing open disrespect to go unpunished.12 While the removal quelled calls for the president to act, it did not change the strategic direction in Afghanistan. General David Petraeus, who replaced General McChrystal, largely continued the strategy of his predecessor. This case represents an unhealthy civil-­military balance on the outcome that matters most at the level of presidents and generals: the exercise of influence in negotiations over strategy. A focus on negotiated outcomes can seem of second-­order importance in civil-­military affairs, with military takeover in a coup being more important. While militaries that usurp control are a starting point for much comparative research in civil-­military relations,13 in the United States the idea of a coup is so far-­fetched that their study would be unprofitable. Beyond the low likelihood of coups, however, negotiation outcomes form the basis of civil-­military relations for a more fundamental reason: democratic theory dictates that influence, not just formal authority, ought to rest in civilian hands.14 Because the purpose of government is to protect civilian interests, those interests, as articulated by elected representatives in general and presidents in particular, should sway civil-­military debates. It is more important to know who is persuasive in the development of a strategy for Afghanistan, for example, than to know who signs the final order implementing the strategy. Negotiations between presidents and generals take a unique form. Rather than an explicit haggling over price or time or other resources, negotiations between presidents and generals take the form of an implicit tug of war over whose view of the world is better for the safety and prosperity of the country. The military view tends to focus abroad, seeing preparation for threats as vital to the health of the country.15 The presidential view is more likely to focus on domestic concerns, seeing investments in economic well-­being as vital. This foreign-­versus-­domestic tension sets up a traditional “guns versus butter” debate.16 Another typical debate is over whether possible great power threats—wars with states like China or Russia—deserve more attention than current smaller-­scale conflicts like counterterrorism operations. In this debate the military tends to favor preparation for the long-­term worst case, while presidents are more likely to focus on the present. The ideal standard for civil-­military negotiations is a vigorous back and forth between presidents and generals, followed by a president’s decision based on what he or she deems to be in the best interest of the country. This ideal is not easy to achieve. Engaging in a vigorous back and forth about what the military can realistically hope to achieve in a given situation can easily become an

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exercise in persuasion. The general’s task is to paint a picture of the security situation for the president without distorting that picture in such a way as to suit the military’s interests. No matter how well-­intentioned the painter, though, the line between objectively portraying the security environment and creating a self-­serving worldview is easily muddled, especially when the security environment is complex and civilians have little security experience. Theoretical models of civil-­military relations pattern these negotiations after a principal-­agent dilemma.17 The “principal” in the dilemma is the president who wishes to outsource the task of securing the country—because the principal has limited time and expertise, she delegates power to another who acts on her behalf. The “agents” in the dilemma are the generals who accept the task of securing the state. Agents gain in this exchange because they receive social, identity-­based, or material rewards in return for doing the work of the principal. In the context of civil-­military affairs, there is an inherent problem with power delegation. On one hand the principal may delegate so much power as to threaten her own standing. On the other, delegating too little can also be problematic because too little power can make the agent ineffective against other militaries. In short, civilians face an unresolvable tension: the state needs a strong military to defend itself, but a strong military can pose a threat to the state. This tension is known as the “civil-­military problematique,”18 and is a variant of the general political problem faced by people who seek to delegate power while also seeking to retain their rights. The question of how to manage the delegation of power while maintaining civilian prerogatives is at the core of civil-­military scholarship. In his 1957 The Soldier and the State, Samuel Huntington argued that U.S. civilian elites (presidents principal among them) navigate the dilemma by striking a bargain with military elites. In exchange for political subordination, civilian elites grant the military autonomy over military operations. Once granted autonomy, the military cultivates a sense of professionalism that values subordination to civilian authority, and hence only employs military operations in ways that serve civilian interests. A useful analogy is the patient-­doctor relationship. Patients entrust themselves to doctors’ care because patients assume that doctors embrace an ethic of caring for patient interests. Similarly, Huntington argues, the military restricts its power voluntarily because its sense of professionalism values subordination over its material or status-­based interests. In some respects Huntington’s theory has aged well. It remains a revered text in military officer education programs, for example. For officers the work is both flattering and functional. It portrays the archetypal officer as living in accord with high ideals rather than self-­interest, and, at the same time, it reminds actual officers that they ought to strive to be such a person. Among political scientists, however, Huntington’s theory has aged less well. Though it remains the starting point for normative and theoretical discussions

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of civil-­military relations, political scientists have deemed it more an exercise in prescription than description.19 Huntington’s scheme for control—autonomy in exchange for willing subordination—only works if the military behaves as Huntington claims it ought to. If the military were to take its autonomy and adopt an ethic that prized loyalty to fellow military members above all else, for example, Huntington’s scheme would fail. In fact, if the military adopted such an ethic the Huntington arrangement would amplify the tension between principal and agent rather than attenuate it. The most significant revisions of Huntington’s work have been from scholars who have modeled the presidents and generals in the principal-­agent dilemma as rational actors seeking to optimize their interests within the relationship.20 Assuming the principal and agent are rational actors, the principal-­agent relationship turns on two basic questions: to what extent do the preferences of the two sides overlap, and, when preferences do not overlap, what are the president’s costs for forcing realignment, or generals’ costs for pursuing their own interests? A president can force realignment by directly ordering generals to do something, but this can be costly for a number of reasons, not least because presidents have limited time to monitor military affairs and give orders. Generals can pursue their own interests (an ignoble phrase for a military officer, but in this context meaning pursuing what a general believes is best for the country’s security). But pursuing one’s own interests can be costly for a number of reasons—if generals step too far out of line, they can lose their jobs. These questions of alignment and pursuing one’s own interests point to factors that affect civil-­military relations in an enduring way. One factor is the military’s understanding of its own interests, which is filtered through each military service’s unique history and culture, and helps determine when a service will react against civilian control.21 Separately, strong external threats tend to make preferences converge as both presidents and generals focus their attention on defending the country.22 Another factor is how coherent each side’s preferences are. The “president-­versus-­general” relationship is, of course, a simplification. A better descriptor would be “president/House/Senate-­versus-­ general.” While military preferences are relatively easy to keep in line—the military operates through a clear chain of command—civilian preferences are fragmented by constitutional design.23 Even when the presidency and Congress are controlled by the same party, the sheer number of voices piping up from all corners of the country gives the military a large menu of options from which to find support for its initiatives.24 Beyond pointing out enduring factors that shape civil-­military relations, preference alignment and the costs of acting on one’s own also provide a framework for understanding how civil-­military relations are systematically changing.

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Preference alignment requires some degree of clarity about the country’s security environment—it is hard to align preferences about how best to defend the country if principal and agent cannot agree on what constitutes a threat. Since the end of the Cold War, such certainty has been fleeting.25 With the exception of the years immediately following the attacks on September 11, 2001, both presidents and generals have wavered over what constitutes the greatest threat to security. At different times since the fall of the Soviet empire, presidents have labeled each of the following as critical threats: superpowers with near-­peer militaries and nuclear armaments, smaller-­state actors with the ability to upend regional stability, nonstate actors intent on terrorizing the population, and global forces like rapid technological advancement, economic upheaval, and climate change.26 The number of possible threats, as well as the dramatic differences among them, are an indicator of how uncertain the security environment appears to those setting strategy. A popular phrase in the civil-­military relations literature is that “the military assesses the risk, the civilian judges it.”27 Put another way, the military determines the odds that a particular strategy will keep the country safe, and the civilian determines whether those odds are acceptable given the strategy’s costs. An uncertain environment, though, complicates this clean division of responsibility. The more uncertain the environment, the more the military’s task shifts from assessing the risk posed by a threat to the construction of threats in the first place.28 Amid extreme uncertainty the assessment of risk becomes less about objective measurement (that is, what is the probability that a strategy will succeed?) and more about the basic definition of a problem (for example, will a competitor’s use of artificial intelligence entail a fundamental shift in the balance of power?). Uncertainty gives those responsible for risk assessment (or construction) more influence, even if they never assume the role of final decision maker. Uncertainty also influences the way presidents react to military advice. At a psychological level, the combination of uncertainty with the possibility of danger leads to caution.29 A cautious presidential disposition favors the military, whose leaders are more likely to advocate for worst-­case scenario preparation.30 Uncertainty also leads to higher levels of advice seeking and deference to expertise.31 Presidents are more likely to take the advice of military leaders if they are uncertain about what the environment holds. Lack of experience makes this advice-­taking more likely. Not since President George Bush has a sitting president been a veteran of overseas military operations.32 Inexperienced eyes, once in office, must somehow oversee a modern military that operates on the ground, the open ocean, and in air, space, and cyberspace. Making sense of it all requires presidents to rely on the picture that generals paint.

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Another trend tipping the balance in favor of the military is the increasing cost, from the perspective of presidents, of monitoring the military. Monitoring military activity requires time and focused attention, scarce commodities for any president. Dealing with military matters, which tend to move at a plodding, bureaucratic pace, takes time and attention away from campaigning, fundraising, or responding to the twenty-­four-­hour news cycle. Less experience in security only exacerbates these opportunity costs. Inexperienced presidents may find it harder to know which questions they should ask of generals to ensure compliance, or what an indicator of a lack of compliance might look like. More scope for the military to pursue what it deems best is not necessarily good for security. If anything, the empirical record suggests that presidential engagement on security strategy, as well as on more narrow questions of military operations, leads to more effective policy and execution.33 Unlike a legislative oversight body, a president can easily demand justifications for decisions before military decisions take place. This form of pre-­decisional accountability leads to different patterns of thought than does post-­decisional accountability of the sort an oversight body would supply.34 After a decision, the tendency is to generate explanations that portray the decision that was made in the best possible light, which calls for identifying the strengths in a decision while playing down its weaknesses. Before a decision, however, the task is to anticipate criticism, which calls for identifying weaknesses rather than strengths. The search for weaknesses leads decision makers to see more of the underlying complexity inherent in an issue, and ultimately to meaningfully addressing those weaknesses. A president whose time and attention are elsewhere is less likely to force his generals to search for the weaknesses in their plans. In sum, at the level of presidents and generals, civil-­military relations are slipping toward increasing military influence. Growing uncertainty in the security environment has pushed inexperienced presidents toward generals’ description of that environment. Further, presidential time and attention are growing increasingly scarce in the era of the “perpetual campaign,” which makes it harder to oversee what generals are doing. As mentioned earlier, this gain in influence for generals occurs at the margins. It benefits—if that is the appropriate term for accruing a grave responsibility—a military that holds deference to civilian authority as a core cultural value.35 At this crossroads, the military is still squarely in the role of advisor to presidents, who maintain power. Yet, the trend is toward an advisor more éminence grise than objective analyst.

The Entrepreneur and the Acquisitions Officer As presidents and generals negotiate defense strategy in the Situation Room, negotiations between other actors in the civil-­military milieu play out in a different setting. In 2017 the Pentagon was in the final stages of the bidding process

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for “Project Maven,” an acquisitions program meant to bring machine-­learning techniques to military image classification problems. The idea was to train machines to answer questions such as “is the person in this picture a combatant or a civilian?”, a typical question for military intelligence analysts and the kind of problem that machine learning is good at solving.36 The “maven” in the program’s title was apt. Borrowed from Yiddish, “maven” denotes an expert or aficionado, and the Pentagon’s use of it underscored an important point about technology in war today. Despite the navy and air force having reputations as technologically advanced, in many cases the military is not expert in the underlying technologies it uses. It must turn to civilian experts for help. In the case of Project Maven, those experts were ambivalent about helping. Inside Google, home to some of the world’s best talent in artificial intelligence,37 employees debated whether working on projects with direct military uses fit with their values. After Google signed an initial contract on Maven, the internal debate within the company grew acrimonious and public.38 Over three thousand employees signed a letter opposing the contract; a dozen employees resigned, and one employee took the symbolic step of petitioning for a conference room to be renamed after a German scientist who killed herself in 1915 over the use of science in warfare.39 The employee backlash eventually led Google to forgo renewing its Maven contract.40 One way to view the Google story is as a reversal of the typical buyer-­seller dynamic: sellers cajole; customers are right. Here, the opposite was true. It was Defense Secretary James Mattis who made a goodwill trip to Silicon Valley in 2017, extending the recent practice of systematic outreach to the technology community begun by his predecessor, Ash Carter.41 Google employees—the sellers in this case—rebuffed the flattery. This story of role reversal is an extreme example, to be sure. Employee protest and resignation is not a typical response to Pentagon contracts, even among other big technology companies in Silicon Valley. Yet, the story is still indicative of a deeper shift in civil-­military relations in economic contexts, where the balance of power is shifting away from military acquisitions officers and toward civilian entrepreneurs. The military has typically enjoyed the role of monopsonist—the sole buyer of things like stealth fighters, armored tanks, and aircraft carriers. With monopsony comes the ability to define what goods are sold in the market and to demand low prices.42 For items that have no use outside the military, such as aircraft carriers, the military still enjoys this position. In areas touched by the digital revolution, however, it is far from a sole buyer. At the conceptual level, military strategists have grasped that the tools of the digital revolution—networks of people and equipment, human intelligence augmented with machine learning, and autonomous vehicles that can go where humans cannot—will play a key role in future wars.43 What is different

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about these tools is that they can often be just as useful to civilian organizations as they can be to military organizations. Networked people tend to be more efficient, whether they work for Amazon or the Department of Defense. Vehicles that drive themselves will be just as (if not more) valuable to civilian shipping companies as they will be to logistics units in the military. This has left the military acquisitions officer as just one buyer among many, and not necessarily the biggest buyer.44 This newfound bargaining power for civilian suppliers—or, at least, civilian reactions to this newfound power—has sparked concern among some observers. Ash Carter, who spent much of his career overseeing research and development in the Department of Defense before becoming the Department’s secretary, has admonished young technologists to consider the importance of public service as they weigh contracts with the military.45 But from the perspective of civil-­military relations, entrepreneurs’ ability to say no to a deal is a sign of good health. It signals the primacy of civilian interests. Such primacy is not a foregone conclusion, even in the free market of the United States. The relationship between the entrepreneur and the acquisitions officers is the focal point of tension in two national economic balancing acts. One balancing act, previously mentioned, weighs domestic economic interests against the need to defend the state. The second balancing act weighs the short-­ term responsiveness of a directed economic system against the long-­term inefficiencies that tend to accompany such a system.46 Were there no foreign threats, the country’s welfare would be maximized by focusing its resources entirely on domestic economic prosperity. Given that there are foreign threats, the state faces the question of how directive it should be in channeling resources toward defense. Government involvement can be efficient in the short run, especially when the mobilization of capital is a limiting factor, but over the long run, government involvement tends to retard growth. Early research in civil-­military relations was motivated by the belief that the United States was at risk of adopting an overly threat-­oriented, highly directive approach. With a phrase that became common in the years following World War II, Harold Lasswell argued that the country was on its way to becoming a “garrison state.”47 With the prospect of total war with the Soviet Union looming, he and others feared that the government would be forced to direct so much of its time and money toward defense that it would undermine the liberal values on which the country is premised.48 In a “garrison United States” the Google story would have played out quite differently. There would have been no need for the president’s envoy (Secretary Mattis) to build goodwill in Silicon Valley; the president or other high-­ranking officials would have directed the necessary proportion of machine-­learning specialists to work on military image classification. Internal protests in Google would have been in vain because Google’s executives would have had their

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hands tied. Most importantly, Google or a similar company may never have existed in a garrison United States, where questions of how to serve defense needs would have crowded out questions of how to help all civilians make use of the internet’s information. The Google story played out as it did because the United States became a “contract” instead of a “garrison” state. Rather than direct the American economy primarily toward defense, the government allowed it to operate relatively unfettered, prizing growth ahead of resource extraction.49 Although Presidents Harry Truman and Dwight Eisenhower were each pressured to vastly expand the security establishment out of concern that the Soviet Union was doing the same, both demurred because they believed that the requisite tax rates would be too unpopular.50 When the government did procure arms, it did so by working with the private economy. Project Maven is just a recent instance of the state contracting expert services from a private economy that is mostly left to grow on its own. Looking beyond the Google story, the future of the entrepreneur–acquisitions officer relationship is bright, even in the country’s technology corridors. Silicon Valley has a long history of working with the military, whose research and development dollars helped propel much of the valley’s technology to commercial viability.51 Of late, technology giants such as Microsoft and Amazon have picked up where Google left off.52 As of this writing Amazon seems poised to build even deeper military ties, with a branch of its recently expanded headquarters located in Crystal City, Virginia, just two subway stops from the Pentagon. A healthy relationship between entrepreneur and acquisitions officer has consequences for strategic decisions by presidents and generals. Among other things, it forces military strategists to be more adaptable. As engineers and scientists in the tech world push the frontiers of networking, AI, and robotics, military strategists will have to adapt their military operations lest competitors do so first. Given the pace of technological change, the important question for the military is how quickly the services can pull new technology into military units.53 Presidents have historically played a vital role in this question of technology take-­up. Less likely to be wedded to traditional means of warfighting, they tend to be more open than generals to pushing for change in the Pentagon. President Eisenhower, for example, insisted that the military embrace nuclear weapons and the strategy of deterrence that they entailed.54 More recently, Presidents George W. Bush and Barack Obama, acting through Secretary of Defense Robert Gates, pushed the military to procure equipment for counterinsurgency operations that was of little use for larger-­scale great power conflict, something the military was not inclined to do on its own.55 The balance of power at this crossroads, between entrepreneur and acquisitions officer, is tilting toward the civilian. In many cases, the military is

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becoming one buyer among many, and with this change has come an increase in entrepreneurs’ bargaining power. Future tension between the two is likely to be healthy from a civil-­military relations perspective because civilian entrepreneurs are in an increasingly powerful position. For its part, the military will follow as much as it leads, taking its cues from a dynamic private sector.

The Citizen and the Soldier Eighty-­one times a year between late March and the end of September, fans of the Washington Nationals baseball team rise in the fourth inning to show their appreciation for the military. As they do, the big screen in the stadium cuts to a video feed of active duty and veteran personnel, often disabled, sitting in club seats behind home plate as guests of the Nationals organization. The loudspeaker asks fans to honor those in attendance who have served, and, genuinely, the fans oblige. The scene is impressive and moving, even if habitual. “Thank you for your service” is not unique to baseball or Washington. Such thank-­yous—and more generally, cordiality between citizens and soldiers—is now a mainstay in American society. The heartfelt gratitude and cordiality, however, mask a troubling trend between citizens and soldiers. Underneath the thank-­yous is a growing lack of understanding between the two sides.56 For more and more civilians, the oblique object in “thank you for your service”—“your service”—is a vague catch-­all. While most understand in a generic sense that military service entails physical hardship, long periods apart from family, and the risk of death or injury, an increasing number do not understand what the military does in a specific sense.57 The divide between citizens and soldiers is caused in part by an actual separation. In terms of where they live, who they vote for, and what their economic prospects are, the military is growing less representative of the people it serves.58 More specifically, the military represents a narrowing slice of the country. It is increasingly rural, while the civilian population is increasingly urban.59 The military has long had its best recruiting success in rural areas, where a recruiting office may stand out as a source of economic opportunity and adventure.60 When the military attempts to recruit from urban areas, however, it faces an uphill climb. In cities like Seattle, for example, enlisted recruits would have to receive three promotions before their salary would eclipse what they could earn as a full-­time minimum wage worker in the city.61 Beyond salary, the greater number of job prospects for city-­dwellers gives military recruiters much more competition than they face in rural areas. Unsurprisingly, the urban-­rural shift has paralleled a shift in the partisan makeup of the military. Since civil-­military theorists began systematically measuring political orientation, the military has steadily shifted to the right.62

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Compared to the mid-­1970s, military members are now less likely to identify as independent and more likely to identify politically as Republican.63 The divide extends to a psychological level as well. Civil-­military theorists have long posited that the type of people who choose to join the military are different from the type of people who do not.64 Those who choose a profession that may involve aggression are more likely to be (small-­c) conservative in their thinking, wary of change and outside influence. In 2013 Stephen Gerras and Leonard Wong of the army’s Strategic Studies Institute reported that army personnel score lower, on average, on measures of “openness to experience,” a validated psychometric measure of one’s comfort with things unknown.65 Further, officers who rose to high levels of command showed even less openness than the rest of their army colleagues. This difference in openness to experience should not be overdrawn. The military is home to many who score high on trait openness; moreover, an individual’s personality characteristics are often less important than the demands a specific situation places on the individual.66 Still, a difference in openness is important for civil-­military relations at the citizen-­soldier level because it suggests a growing divide based on how military and civilians (at least those in urban areas) view the world. As diverse urban areas attract civilians who are open to experience, those same areas will become less common as sources of military recruits. A citizen-­soldier divide can have negative consequences for citizens in their capacity as citizens. If the principal theme underlying civil-­military relations is that civilian liberty has primacy over military interests, a secondary theme is that military duty, or at least awareness of military activity, is key to building civic virtue.67 According to the civic virtue school of thought, the maintenance of an informed and engaged citizenry should be the first goal of the state, because an informed and engaged citizenry is the final backstop of democratic liberty. Indeed, this view animated the Founders and is still present in the traditional meaning of the hyphenated phrase “citizen-­soldier.” The ideal of this school of thought is that citizen and soldier are two functions embodied in the same person. A divide between citizenry and soldiers, however, undermines citizens’ ability to be actively engaged on questions of national security. Without interaction, it is difficult for citizens to understand what the military’s capabilities are, and it is arguably impossible for citizens to understand the full human costs of military action. It is unrealistic to expect wise decision making of someone who does not know the costs associated with a decision. For their part, everyday soldiers are prone to react to a citizen-­soldier divide with a sense of aggrievement, superiority, or both. In October 2017, then-­W hite House chief of staff John Kelly, a retired marine four-­star general and the father

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of a service member who was killed in combat, voiced such a sense of aggrievement in a press conference.68 He recounted, in vivid detail, what happens after a service member dies in combat. As he told reporters, the service member’s “buddies wrap them up in whatever passes for a shroud” and the body is loaded on a helicopter before being transported out of the country. Eventually, after a dignified transfer, morticians at Dover pack the bodies on ice and clothe the service members in their dress uniforms. Meanwhile, a casualty notification officer travels to the residence of the fallen member’s spouse and/or parents. After the first lights come on in the morning, the casualty notification officer “proceeds to break the heart of a family member.” General Kelly gave the press conference in response to presidential public relations troubles. President Trump had recently taken criticism for his handling of the grieved families of four soldiers killed in Niger. Yet, the press conference ended up being about a broader civil-­military message. Kelly made clear that the military felt misunderstood: “Many of you, as Americans, don’t know [the men and women who serve]. Many of you don’t know anyone who knows any one of them.”69 A military that feels it is alone in bearing the costs of war is prone to develop a sense of superiority over the civilians they serve. Kelly implied as much: “Who are these young men and women [who serve]? They are the best 1 percent this country produces . . . they volunteer to protect our country when there’s nothing in our country to suggest that selfless service to the nation is not only appropriate, but required.”70 Implicitly, his remarks revealed a belief that the citizen-­ soldier divide has a specific cause: civilians place less value on civic responsibility than military members. Though untrue in many cases, military members who believe it to be the case would quite naturally look down on civilians. Looking down on other citizens undermines soldiers in their role as soldiers. The professional ethos of service members stems from the foundational principle of U.S. civil-­military relations: military members are servants, first of their country, and second of the men and women alongside whom they fight. A sense of superiority relative to civilians, ill-­founded or otherwise, jeopardizes this ordering. The current era is not the first to see a disconnect between citizens and soldiers, and Kelly is not the first to air the grievances of a military that feels misunderstood. During the Revolutionary War a group of officers under General George Washington grew so frustrated at lack of pay that they considered hostile action against the Continental Congress. It took General Washington’s much-­celebrated Newburgh Address to remind them that their own virtue as officers foreclosed any such action and that the Congress was in “full conviction of [the army’s] Merits & sufferings.”71 Congress understood what the army had endured, it was simply in too precarious a financial position to pay salaries on time. Today, the opposite provides the animus for Kelly’s remarks.

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The prosperity of the American economy affords an all-­volunteer military with compensation good enough to recruit and retain over one million active duty service members. This same prosperity, however, makes possible an emotional distance that can leave the public unaware of the military’s “Merits and sufferings.” A divide between citizens and soldiers (and sailors, airmen, and marines) matters at the highest levels of civil-­military relations. One of the surest ways for a president to maintain control over the military is to ensure that it accurately reflects the people it defends.72 The Framers of the Constitution appreciated this point—they believed that a military of the same spirit as the people it protected was a precondition for the maintenance of civilian control.73 Military interests are more likely to be aligned with civilian interests when the military reflects the civilian population that it serves. A citizen-­soldier divide can also affect national security policy. Somewhat ironically, a public that does not understand the full costs of military action can make the military easier for presidents to use.74 Since Vietnam, military strategists have recognized that a limiting factor in the use of military force is the public’s tolerance for the costs of war.75 To the extent that the public ignores these costs, lengthy combat operations become easier to maintain. While the public certainly does not ignore conflicts overseas—the war in Iraq was central to presidential elections in 2004 and 2008, for example76—it is more likely to ignore many of the smaller-­scale operations that collectively define the country’s security policy. One theme of the questions that General Kelly fielded in his press conference was why the United States had soldiers in Niger in the first place, and why no one outside of the Pentagon seemed to know about it. Indeed, many Americans would be surprised to learn how expansive the military’s footprint actually is, not just in Africa but also in Europe, the Middle East, and Asia, not to mention the seas and skies surrounding those areas. In South Asia, 2019 marked the military’s eighteenth year of regular deployments to Afghanistan, twice the length of time between the Gulf of Tonkin Resolution in 1964 and the Paris Peace Accords in 1973, which marked the beginning and end of large-­scale American involvement in Vietnam.77 The scale of the fighting was more severe in Vietnam than Afghanistan, but another difference between the two conflicts is that the general public had a stronger interest in the speedy end of the Vietnam War than it has had in the war in Afghanistan. During Vietnam, the prospect of the draft hung over the entire young male population (and by extension their mothers and fathers), which kept the public attentive to the war. Since the creation of the all-­volunteer force in 1973, the public’s incentive to remain attentive to foreign engagement is no longer as powerful. Overall, civil-­military relations between citizens and soldiers are respectful and warm, yet growing divided. Most citizens are grateful for the service

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of everyday soldiers at the same time that they are less likely to understand the physical and emotional demands such service entails. This is unfortunate for citizens, who need to understand the costs of military service if they are to judiciously employ that service. The divide is also unfortunate for the military, whose professional ethos requires that soldiers be servants of the citizenry they defend. Finally, a citizen-­soldier divide affects the choices that presidents make. Citizens provide a brake on military use; the less engaged the citizenry, the less effective the brake. If there is a consistent theme across the three levels that define U.S. civil-­ military relations, it is that civilian interests are more important than military interests. At the level of presidents and generals, this tenet of civil-­military relations has, indirectly, undermined presidents’ ability to direct strategic policy. Military experience among presidents is for now a thing of a generation past. Inexperience in military affairs, combined with an increasingly complex and uncertain military environment, makes presidents more dependent on their generals to make sense of the country’s security situation. This dependency increases military influence. On economic grounds the story is reversed. As a consumer of the goods of the digital revolution, the military is one buyer among many. Unlike when the military is the sole buyer of a product, the military as one-­among-­many gives civilian entrepreneurs bargaining power. This tilt toward civilian power can affect military strategy, which must adapt to technology changes in order to keep pace with competitors. As with the scene on the Dover tarmac on February 1, 2017, civil-­military relations between citizens and soldiers are characterized by contradiction. In many ways, the relationship is as good as ever. A deep sense of appreciation for the military’s service is widespread. A saluting president, who stepped away from the Oval Office to honor a single fallen soldier, communicated as much on the morning of Senior Chief Petty Officer William “Ryan” Owens’s dignified transfer. At the same time, military service is becoming harder to understand, both because it is more complex than ever and because citizens and soldiers are less likely to cross each other’s paths. At the crossroad of citizens and soldiers, a sense of gratitude is closely shadowed by a sense of detachment. One question this chapter did not address is how these three relationships compare to each other in terms of importance. Is the elite-­level relationship more influential than the other two? Or, given the importance of technology as a driver of military strategy, is the entrepreneur-­acquisitions officer relationship most important? The one relationship that commands the attention of the other levels is the relationship between citizen and soldier. Under its constitutional system, the

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ultimate check on U.S. government power—military or otherwise—is the will of the people. On military affairs, that check is only as good as the citizenry’s knowledge of the military that serves it, and so over the long run it is the citizen-­soldier relationship that most shapes civil-­military relations. While there is much to celebrate in that relationship, at the current crossroads the long-­term trend is negative. It is the task of everyday citizens and soldiers, sailors, airmen, and marines to reverse the trend.

Notes The views expressed here are the author’s alone and do not necessarily reflect those of the U.S. government or any part thereof. 1. Eric Schmitt, “Father of Commando Killed in Yemen Refused to Meet Trump,” New York Times, February 26, 2017. 2. Rosa Brooks, “Civil-­Military Paradoxes,” in Warriors and Citizens: American Views of Our Military, ed. Kori Schake and James Mattis (Stanford, Calif.: Hoover Institution Press, 2016), 21–68. 3. John Allen and Amir Husain, “On Hyper-­War,” Fortuna’s Corner, July 10, 2017, https://​ fortunascorner​.com​/2017​/07​/10​/on​-­­hyper​-­­war​-­­by​-­­gen​-­­ret​-­­john​-­­allenusmc​-­­amir​-­­hussain/. 4. This is a generic term meant to represent officers at the highest levels of the military, where strategic policy decisions occur. Admirals, of course, occupy this level as well. 5. Peter Feaver, “Civil-­Military Relations,” Annual Review of Political Science 2, no. 1 (1999): 211–41. Quote on 216. 6. All males aged eighteen to twenty-­five are required to register under the Selective Service Act. The likelihood of registration leading to conscription, however, has become slim to nonexistent since the formation of the all-­volunteer force. 7. Eliot Cohen, Supreme Command: Soldiers, Statesmen, and Leadership in Wartime (New York: Simon & Schuster, 2002). 8. As the next section explains in more detail, resistance to civilian authority can come in more subtle forms than a coup; this statement does not apply to all forms of resistance, only the most extreme. 9. Helene Cooper, Shan Carter, Jonathan Ellis, Farhana Hossain, and Alan McLean, “On the Issues: Iraq and Afghanistan,” New York Times, 2008. 10. Bob Woodward, Obama’s Wars (New York: Simon & Schuster, 2011). 11. Michael Hastings, “The Runaway General,” Rolling Stone, June 22, 2010. 12. David Gura, “Journalist Surprised by Reaction to His Profile of Gen. Stanley McChrystal,” All Things Considered, NPR, June 22, 2010. 13. For example, see Zoltan Barany, The Soldier and the Changing State: Building Democratic Armies in Africa, Asia, Europe, and the Americas (Princeton, N.J.: Princeton University Press, 2012). Also see Edward Luttwak, Coup d’Etat: A Practical Handbook (Cambridge, Mass.: Harvard University Press, 1979). 14. Peter Feaver, “The Civil-­Military Problematique: Huntington, Janowitz, and the Question of Civilian Control,” Armed Forces & Society 23, no. 2 (1996): 149–78. 15. Samuel Huntington, The Soldier and the State: The Theory and Politics of Civil-­Military Relations (Cambridge, Mass.: Harvard University Press, 1957). 16. Roderick Kramer, Debra Meyerson, and Gerald Davis, “How Much Is Enough? Psychological Components of ‘Guns versus Butter’ Decisions in a Security Dilemma,” Journal of Personality and Social Psychology 58, no. 6 (1990): 984–93.

172  Br a dle y R . De W ees 17. Jeffrey Donnithorne, Four Guardians: A Principled-­Agent View of American Civil-­ Military Relations (Baltimore, Md.: Johns Hopkins University Press, 2018). 18. Feaver, “The Civil-­Military Problematique.” 19. Ibid. 20. The revisions I refer to here are those that follow in the political science tradition behind Huntington (e.g., Deborah Avant, Feaver). This is not to ignore the rich body of work in the sociological tradition of civil-­military relations (e.g., Morris Janowitz, Charles Moskos), only a statement that that work constitutes a parallel to the political science approach, not necessarily a revision. 21. Donnithorne, Four Guardians. 22. Michael Desch, “Soldiers, States, and Structures: The End of the Cold War and Weakening US Civilian Control,” Armed Forces and Society 24, no. 3 (1998): 389–406. 23. Deborah Avant, Political Institutions and Military Change: Lessons from Peripheral Wars (Ithaca, N.Y.: Cornell University Press, 1994). 24. Of course, this is not always the case—services within the Department of Defense may have competing interests against one another—but the task of corralling four military service chiefs is not the same as corralling the executive branch, a majority in the House, and a majority in the Senate. 25. Deborah Avant, “Conflicting Indicators of Crisis in American Civil-­Military Relations,” Armed Forces and Society 24, no. 3 (1998): 375–88. 26. See U.S. National Security Strategies from 2002 to the present. The changes between strategies reflect, in part, different views over what constitutes the greatest threat to the United States. 27. Feaver, “The Civil-­Military Problematique,” 216. 28. Alexander Wendt, “Driving with the Rearview Mirror: On the Rational Science of Institutional Design,” International Organization 55, no. 4 (2001): 1019–49. 29. Yoav Bar-­Anan, Timothy Wilson, and Dan Gilbert, “The Feeling of Uncertainty Intensifies Affective Reactions,” Emotion 9, no. 1 (2009): 123–27. 30. Huntington, The Soldier and the State. 31. Silvia Bonaccio and Dalal Reeshad, “Advice-­taking and Decision-­making: An Integrative Literature Review, and Implications for the Organizational Sciences,” Organizational Behavior and Human Decision Processes 101, no. 2 (2006): 127–51. 32. Even among Republicans, who tend to be more promilitary, military experience has been the exception for presidential candidates. In the 2016 Republican primary, only two candidates in the field of seventeen had military experience, Senator Lindsey Graham and Governor Rick Perry. Senator Graham fared the better of these two, finishing eleventh with 6,000 primary votes (Carl Bialik, “How the Republican Field Dwindled from 17 to Donald Trump,” FiveThirtyEight, May 5, 2016). 33. Cohen, Supreme Command. 34. Jennifer Lerner and Philip Tetlock, “Accounting for the Effects of Accountability,” Psychological Bulletin 125, no. 2 (1999): 255–75. 35. Donnithorne, Four Guardians. 36. Scott Shane, Cade Metz, and Daisuke Wakabayashi, “How a Pentagon Contract Became an Identity Crisis for Google,” New York Times, May 30, 2018. 37. Eric Jhonsa, “Apple, Google, and Other Tech Giants Are Smart to Hoard AI Talent,” The Street, April 5, 2018. 38. Scott Shane and Daisuke Wakabayashi, “‘The Business of War’: Google Employees Protest Work for the Pentagon,” New York Times, April 4, 2018. 39. Shane, Metz, and Wakabayashi, “How a Pentagon Contract Became an Identity Crisis for Google.”

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40. Daisuke Wakabayashi and Scott Shane, “Google Will Not Renew Pentagon Contract That Upset Employees,” New York Times, June 1, 2018. 41. Tom Simonite, “Defense Secretary James Mattis Envies Silicon Valley’s AI Ascent,” Wired, August 11, 2017. 42. Jacques Gansler, Affording Defense (Cambridge, Mass.: MIT Press, 1989). It is important to note that the military’s ability to demand low prices depends crucially on the acquisitions system pitting companies against one another in competition, a situation more easily theorized than implemented. 43. Michael Horowitz, “Artificial Intelligence, International Competition, and the Balance of Power,” Texas National Security Review 1, no. 3 (2018): 36–57. 44. Google executives tried to damp down employee concern about Project Maven by saying that the contract was worth “only” nine million dollars; see Shane, Metz, and Wakabayashi, “How a Pentagon Contract Became an Identity Crisis for Google.” 45. Ash Carter, “Shaping Disruptive Technological Change for Public Good,” Ernest May Lecture, Belfer Center for Science and International Affairs, Harvard Kennedy School of Government (August 2018), https://​www​.belfercenter​.org​/publication​/shaping​-­­disruptive​ -­­technological​-­­change​-­­public​-­­good. 46. Aaron Friedberg, “Why Didn’t the United States Become a Garrison State?” International Security 16, no. 4 (1992): 109. 47. Harold Lasswell, “The Garrison State and Specialists on Violence,” in The Analysis of Political Behavior, ed. Harold Lasswell (London: Kegan Paul, 1947). 48. Hanson Baldwin, The Price of Power (New York: Harper, 1947). 49. Friedberg, “Why Didn’t the United States Become a Garrison State?” 50. Dennis Ippolito, Uncertain Legacies: Federal Budget Policy from Roosevelt through Reagan (Charlottesville: University Press of Virginia, 1990). 51. Margaret O’Mara, “Silicon Valley Can’t Escape the Business of War,” New York Times, October 27, 2018. 52. Wakabayashi and Shane, “Google Will Not Renew Pentagon Contract That Upset Employees.” 53. Michael Horowitz, The Diffusion of Military Power: Causes and Consequences for International Politics (Princeton, N.J.: Princeton University Press, 2010). 54. Friedberg, “Why Didn’t the United States Become a Garrison State?” 55. Robert Gates, Duty: Memoirs of a Secretary at War (New York: Alfred  A. Knopf, 2014). 56. Brooks, “Civil-­Military Paradoxes.” 57. Ibid. 58. Kori Schake and James Mattis, “A Great Divergence?” in Warriors and Citizens: American Views of Our Military, ed. Kori Schake and James Mattis (Stanford, Calif.: Hoover Institution Press, 2016), 1–20. 59. Dave Philipps, “The Army, in Need of Recruits, Turns Focus to Liberal-­Leaning Cities,” New York Times, January 2, 2019. 60. Morris Janowitz, The Professional Soldier: A Social and Political Portrait, (New York: Simon & Schuster, 1971). 61. Philipps, “The Army, in Need of Recruits, Turns Focus to Liberal-­Leaning Cities.” 62. Mackubin Owens, “Is Civilian Control of the Military Still an Issue?” in Warriors and Citizens: American Views of Our Military, ed. Kori Schake and James Mattis (Stanford, Calif.: Hoover Institution Press, 2016), 69–96. However, an important note is that recent work suggests that this shift may only be occurring among officers, not enlisted. For further discussion, see Jason Dempsey, Our Army: Soldiers, Politics, and American Civil-­Military Relations (Princeton, N.J.: Princeton University Press, 2009).

174  Br a dle y R . De W ees 63. Owens, “Is Civilian Control of the Military Still an Issue?” 64. For an example of this argument, see Huntington, The Soldier and the State. 65. For the report from the army’s Strategic Studies Institute, see Leonard Wong and Ste-

phen Gerras, Lying to Ourselves: Dishonesty in the Army Profession (Carlisle Barracks, Pa.: United States Army War College Press, 2015). For a discussion of openness to experience as a trait personality measure, see Paul Costa and Robert McCrae, “Four Ways Five Factors Are Basic,” Personality and Individual Differences 13, no. 6 (1992): 653–65. 66. Lee Ross and Richard Nisbett, The Person and the Situation: Perspectives of Social Psychology (London: Pinter & Martin, 2011). 67. James Burk, “Theories of Democratic Civil-­Military Relations,” Armed Forces and Society 29, no. 1 (2002): 7–29. 68. Jim Kelly, “Full Transcript and Video: Kelly Defends Trump’s Handling of Soldier’s Death and Call to Widow,” New York Times, October 20, 2017. 69. Ibid. 70. Ibid. 71. George Washington, Newburgh Address, 1783, https://​ www​ .mountvernon​ .org​ /education​/primary​-­­sources​-­­2​/article​/newburgh​-­­address​-­­george​-­­washington​-­­to​-­­officers​ -­­of​-­­the​-­­army​-­­march​-­­15​-­­1783/. 72. Janowitz, The Professional Soldier. 73. Richard Kohn, The United States Military under the Constitution of the United States, 1789–1989 (New York: New York University Press, 1991). 74. Jim Golby, Lindsay Cohn, and Peter Feaver, “Thanks for Your Service: Civilian and Veteran Attitudes after Fifteen Years of War,” in Warriors and Citizens: American Views of Our Military, ed. Kori Schake and James Mattis (Stanford, Calif.: Hoover Institution Press, 2016), 97–142. 75. Department of the Army, Counterinsurgency: Field Manual 3–24 (Washington, D.C., 2006). 76. David Rosenbaum, “Democrats Seek a Stance on Iraq That Won’t Split Party,” New York Times, June 6, 2004. 77. Stanley Karnow, Vietnam: A History (New York: Random House, 1994).

CROSSROADS IN VICE-­P RESIDENTIAL HISTORY J O EL K. GO LDSTEI N

Political institutions change. A variety of factors shape them—institutional design, context, political behavior, and public expectations. These influences are themselves both interdependent and dynamic, and the latter characteristic makes institutional reality developmental, not static. That is not to say that enduring transformations do not occur in constitutional institutions. They do, as innovations become durable from repetition and acceptance. The once novel becomes familiar. Yet even as new approaches reshape prior institutional landscapes on a continuing basis, the modifications, too, are susceptible to revision or re-­creation. Political observers must constantly reexamine lessons learned from earlier encounters. Yesterday’s truths lose their descriptive power and earlier insights become less revealing in an ever-­changing political context. These generalizations describe the constitutional history, evolution, and status, or, more accurately, statuses of the American vice presidency. An institution that was an afterthought when created more than 230 years ago, one that spent most of its history as a legislative office and as a national insurance policy, a ready target for ridicule, has more recently become a consequential office, a robust part of the presidential inner circle. In a different context, vice-­ presidential scholar Roy E. Brownell II has termed the office a “constitutional chameleon,” a metaphor that captures an aspect of its story. The office’s journey through time has brought it to periodic constitutional crossroads. The wise thinker Yogi Berra famously counseled that “when you come to the fork in the road, take it,” yet in institutional development, unlike travel, forks in the road are not always conspicuous in real time. Turning points in the development of the vice presidency, as with other governmental offices, often arrived with little or no notice or contemporaneous appreciation of the significance of the moment. Presidents, vice presidents, and others sometimes took steps that moved the second office along a new path, but the pivot and new course often became clear only retrospectively. These crossroads in the development of the vice presidency have presented themselves in various forms. Some key events involved the application 175

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of existing constitutional language to institutional practice or situations that arose. Occasionally, change followed from formal constitutional amendments. More often, however, the key crossroads in the vice presidency have involved changed circumstances or human behavior. Sometimes developments in other political institutions or in capacities or conditions effected the vice presidency. On other occasions, the office of the vice presidency developed because various leaders tried new approaches that invited imitation, thereby establishing new conventions. Ultimately, the vice presidency has evolved into an institution whose purpose and function are quite different from what was imagined originally or at important points along the way.

In the Beginning The creation of an institution invariably presents a significant juncture because initial choices shape its characteristics, design, and relationships and set it on its path. The decisions made at the outset regarding the vice presidency established its course, at least until other events intervened and redirected it. The vice presidency apparently received little discussion at the Constitutional Convention in Philadelphia in 1787. A plan Alexander Hamilton prepared, but did not present, identified the president of the Senate as the vice president but the proposals discussed at the convention did not refer to such an office until its concluding days.1 Instead, the president of the Senate was listed as the first successor, a choice that used one position to solve two problems. But Gouverneur Morris and James Madison objected to that arrangement, in Madison’s case partly because it might give the Senate incentive to avoid filling a presidential vacancy to allow its own leader to exercise presidential powers.2 These concerns and others regarding presidential succession and inability prompted the convention to defer the subject on August 27, 1787.3 Four days later, the convention referred both succession and the question of presidential election to a Committee of Eleven.4 The Committee of Eleven introduced the vice presidency into the convention’s discussions on September 4, 1787. Its proposal designated the vice president as the ex officio president of the Senate except when the Senate tried a presidential impeachment or when the vice president exercised presidential powers and duties. The same report first presented the Electoral College as the apparatus for selecting the chief executive. Electors from the states would each vote for two persons, at least one of whom had to come from a state different from the elector. The recipient of the most electoral votes, if a majority, would be president; the runner-­up, vice president.5 The plan retained the mechanism that the Senate president would be the first successor but chose him through the presidential election system.

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Writing in what became The Federalist Papers to try to persuade New York to ratify the Constitution, Hamilton responded to accounts that selection of “an extraordinary person, as Vice-­President, has been objected to as superfluous, if not mischievous.” Hamilton argued that a vice president as presiding officer was preferable to a senator. To ensure a “definitive resolution” of the Senate, an even-­numbered body, the vice president could only vote to break a tie. If a senator presided, one state would sacrifice its equal representation to ensure an impartial chair. And since the vice president might occasionally “substitute” for the president, he should be chosen in the same manner.6 It is possible that, consistent with Hamilton’s justifications, the need for a Senate presiding officer and presidential successor influenced the creation of the vice presidency. Yet circumstantial evidence links creation of the office to its anticipated contribution to facilitating the presidential election system.7 The Framers worried that parochial tendencies would impede producing a consensus president after George Washington’s term since electors would be partial to home state candidates. To encourage a more national perspective, the Constitution gave each elector two presidential votes but required at least one to be cast for someone not from the elector’s state. The vice presidency provided a consequence for the second votes, thereby providing an incentive not to waste the second vote on an implausible candidate. The circumstantial evidence that the vice presidency was primarily an electoral expedient starts with the simultaneous appearance at the convention of the Electoral College and the second office. The electoral rationale stated above explains that joint debut. Significantly, Hamilton’s alternative justifications appear at the end of an essay about the Electoral College, the only time The Federalist Papers discuss the second office. It is also worth noting that delegate Hugh Williamson observed that the vice president “was not wanted” but “was introduced only for the sake of a valuable mode of election which required two to be chosen at the same time,”8 thereby supporting the thesis that the office was an electoral expediency. It is, of course, treacherous to infer collective intent from isolated comments of individuals absent proof the stated rationale persuaded others, but Williamson served on the Committee of Eleven that proposed the vice presidency and Electoral College, which lends some credibility to his insight. Roger Sherman, another member, noted that if the vice president were not president of the Senate “he would be without employment,”9 a formulation that suggests that the job assignment went to an existing office rather than explaining its creation. Moreover, it is telling that the initial Constitution provided no means of filling a vice-­presidential vacancy until the next presidential election. Instead, it simply made other provisions for the vice president’s two roles—the ongoing duty to preside over the Senate, which it assigned to the Senate’s president pro

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tempore,10 and the contingent presidential successor role, which it empowered Congress to fill with some “officer.”11 If Hamilton’s reasons for creating the vice presidency were compelling, the Constitution might have included some arrangement to produce a new vice president. Yet the Constitution did not require replacing the vice president until the next quadrennial election, a resolution consistent with viewing the office principally as an electoral expedient, not an indispensable institution.12 When Congress debated the eventual Twelfth Amendment in the early 1800s, some said the office was created to facilitate the electoral system.13 The first two vice presidents, John Adams and Thomas Jefferson, were towering figures and the third, Aaron Burr, was an unusually skillful politician. Their selections were consistent with Hamilton’s reference to “extraordinary” persons serving as vice president.14 Yet three developments directed the office down paths that shaped its evolution toward irrelevance, not always consistent with the Framers’ apparent expectations. To begin with, the Constitution associated the vice president largely with the legislative branch. Of course, important aspects regarding the institution were set forth in Article II, outlining the national executive, rather than in Article  I dealing with Congress. For instance, Article  II addresses the vice president’s term, manner of election, successor role, and amenability to impeachment and removal.15 Yet the only ongoing duty the Constitution assigned the vice president was presiding over the Senate. And the vice president’s designation as “president of the Senate” emphasized his legislative connection.16 The vice president’s executive role was entirely dependent on the occurrence of an extraordinary event requiring the vice president to substitute for the president. The structure of the vice presidency limited its duties. Although early vice presidents were more active in Senate business than later was the case,17 the office Adams et al. occupied was not challenging and occupants found their service frustrating, not fulfilling. Adams described the vice presidency as “the most insignificant office that ever the invention of man contrived or his imagination conceived.” He complained that he could “do neither good nor evil,” thereby capturing the impotence of the office.18 Jefferson professed himself indifferent regarding whether to be or not to be vice president but ultimately decided “to be” because the office would allow him “philosophical evenings in the winter & rural days in summer.”19 Any teacher or student can appreciate the appeal of having summers off but that luxury came at the expense of a frustrating occupation during the other seasons. Early vice presidents regarded the ongoing constitutional duty to preside over the Senate as mandatory and filled the presiding officer’s chair unless ill or justifiably absent. The general understanding that the vice president was a legislative officer whose time was primarily committed to the Senate

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presiding role persisted well into the twentieth century. The vice president generally had little formal interaction with the executive branch. The Senate could have given the vice president more significant responsibilities in, or connected to, his role as its presiding officer but practical considerations related to structural arrangements nixed that course. Whereas the House of Representatives could choose its Speaker,20 the Constitution imposed the vice president on the Senate. The Senate was unlikely to empower someone it did not choose and could not remove through ordinary processes. In another respect, the development of the vice presidency deviated dramatically from what its framers anticipated. As the nation divided into two national political parties, the Federalists and the Democrat-­Republicans, during Washington’s second term, political behavior departed from constitutional design. Instead of adhering to the Framers’ intent that each elector would think of two candidates worthy of a presidential vote, the parties slated conjoined national tickets for the two offices, with one candidate intended for the presidency, another for the vice presidency. The parties formed combinations to maximize the prospects of success. In 1796, the Federalists ran Adams and Thomas Pinckney of South Carolina against Jefferson and Burr. Four years later, Adams and Charles Cotesworth Pinckney, also of South Carolina, ran against Jefferson and Burr. Adams and Jefferson were the intended presidential candidates but the constitutional system gave electors two presidential votes without allowing them to rank one as preferred over the other. Formal design and actual practice rested on inconsistent visions of vice-­ presidential selection, and the juxtaposition produced two incongruous situations. The electoral winners could come from different parties as when Adams (71 electoral votes) and Jefferson (68) were the two top electoral recipients in 1796 and accordingly became president and vice president respectively. In a sense, that result vindicated the original idea that the system would advance the two best men, but in doing so it created cross-­party victors who were ideological and political rivals. That result emphasized the desirability of greater party discipline since its absence kept Pinckney (59) from serving with Adams and embarrassed Burr (30) who felt betrayed since Virginia’s 21 electors gave him only one vote to Jefferson’s 20. Party voting was more disciplined four years later, which created a second problem arising from the disparity between design and practice. Jefferson and Burr, with 73 electoral votes each, both outran Adams (65) and Pinckney (64) but the application of the design, which weighed Jefferson’s and Burr’s electoral votes equally, to the practice of disciplined, straight ticket voting for de facto presidential and vice-­presidential candidates produced an Electoral College deadlock between ticket mates. The tie required resort to the contingent election system whereby each delegation of the House of Representatives cast a single vote. Jefferson was clearly the intended presidential candidate but not

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until the thirty-­sixth ballot did sufficient Federalist abstentions allow Jefferson to win the state delegations necessary for election. Political strategists like Hamilton had appreciated the possibility of inversion of the intended presidential and vice-­presidential candidates but a perceived opportunity for political maneuvering now assumed an ominous quality. Jeffersonians saw that the system might allow the declining Federalist Party to bargain with his running mate to deny Jefferson a second term. They proposed a constitutional amendment separating presidential and vice-­presidential elections. The Twelfth Amendment was ratified by mid-­June 1804 in time for that year’s fifth presidential election. The change in the system for electing vice presidents marks a convenient endpoint for the initial era of the vice presidency. That first fifteen-­year period illustrates three significant constitutional developments regarding the vice presidency reflecting three different dynamics. Consistent with constitutional language, the vice presidency became established as a legislative officer with the limited opportunities that status suggested. Inconsistent with constitutional design, parties ran de facto presidential/vice-­presidential tickets rather than encouraging electors to cast two presidential votes. That practice subverted the original electoral design and produced a change in the presidential/ vice-­presidential election system through a formal constitutional amendment.

The Twelfth Amendment: The Crossroads That Wasn’t The Twelfth Amendment represented a dramatic departure from the original constitutional theory about vice-­presidential selection. That formal change meant that the vice presidency would go to the vice-­presidential candidate with an Electoral College majority in a separate race for the second office rather than to the presidential runner-­up. Some politicians at the time predicted that the new arrangement would diminish the office.21 In fact, the nineteenth century did witness a clear diminution in the vice presidency and accordingly it is tempting to attribute that decline to the amendment, as some scholars have done.22 Yet changes in design do not necessarily alter practice and causation cannot be inferred from correlation. On balance, the amendment probably was not a principal source of the office’s decline.23 To begin with, the amendment did not address vice-­presidential role. During the remainder of the nineteenth century, the vice presidency functioned essentially as it had during its prior years, consolidating the reality of it as a peripheral, limited legislative office whose incumbent spent most of his professional time presiding over the Senate. It is plausible that the office’s meager duties deterred some able men from seeking or agreeing to run for vice president.

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Although the Twelfth Amendment changed the mechanics of vice-­ presidential selection, it responded to, but did not cause, the practice of ticket-­ formation and ticket-­balancing. That convention, which subverted the original design, had already developed, as was evident in the Adams-­Pinckneys versus Jefferson-­Burr tickets with their Massachusetts–South Carolina versus Virginia–New York balance in 1796 and 1800. The practice of choosing running mates based on political considerations, not qualifications, simply continued under the new system. The claim that the Twelfth Amendment diminished vice-­ presidential quality is at least overstated and probably incorrect. The early vice presidents were remarkable figures but there are simply too few data points before 1804 to predict confidently that the office would have continued to attract the likes of Adams and Jefferson. Even absent the Twelfth Amendment, the emerging ticket-­formation practices created the likelihood that parties would use the second spot to balance the ticket with someone from a state rich in electoral votes. The vice presidency would go to the second person on the successful slate, as in 1800, not the perceived number-­two person in the nation.24 Moreover, vice-­presidential caliber did not immediately collapse as would have been expected if the Twelfth Amendment were responsible. George Clinton, Jefferson’s second-­term running mate, was nominated before the amendment was ratified and elected under it. He was the long-­serving governor of New York and Democrat-­Republican vice-­presidential alternative to Adams in 1792. Some claim he was too old to be vice president and was a poor presiding officer but those criticisms, if fair, would indict the original pre–Twelfth Amendment system under which Clinton was nominated. Clinton continued as James Madison’s first vice president and, after he died during Madison’s first term, Elbridge Gerry, a former diplomat, advocate of the Bill of Rights, and governor of Massachusetts, served during Madison’s second term until his death in 1814. James Monroe’s vice president, Daniel D. Tompkins, had served as governor of New York for ten years and had been approached by Madison to become secretary of state. John C. Calhoun served as vice president under Presidents John Quincy Adams and Andrew Jackson; Martin Van Buren was the tenth secretary of state and eighth vice president before his election as the eighth president. John Tyler had served in the House of Representatives and Senate for nearly fifteen years, as governor of Virginia, and as president pro tempore of the Senate.25 On balance, the vice presidents immediately after the Twelfth Amendment were a distinguished group, a conclusion that impeaches the suggestion that the amendment precipitated a decline in the office. The separate election system of the Twelfth Amendment introduced features that should have promoted compatibility between presidents and vice presidents. After all, it largely eliminated the prospect that a vice-­presidential candidate could bargain with opposing electors to supplant the presidential

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candidate. It also effectively addressed the possibility of the election of a president and vice president from competing tickets, as occurred in 1796. Since 1804, the successful candidates for the top two offices have always run on the same ticket.26 Whatever impact these changes had in the nineteenth century, for reasons suggested below they did not immediately produce tickets of ideological and personal compatibles. That development did occur, much later, but it needed to await further changes in the following century. In the nineteenth century, party leaders, not the presidential nominee, typically chose the running mate, and ticket-­balancing, not excellence, tended to be the predominant consideration. Although Adams-­Jefferson was the last split ticket result, vice presidents often came from different political or ideological factions than the president. Since the presidential candidate played little, if any, role in the selection, no bonds of loyalty linked the two officials. Since ideological and geographic balance, not compatibility, were emphasized. the two national officers were often at odds. Sometimes vice presidents cast decisive Senate votes against presidential initiatives. Clinton voted against renewing the Bank of the United States in 1811 despite Madison’s support for the measure and Calhoun cast the tie-­breaking vote against Andrew Jackson’s nomination of Van Buren to be ambassador to the Court of St. James. Henry Wilson broke a tie to pass legislation that President U. S. Grant vetoed. Clinton frequently opposed Madison, Calhoun split with John Quincy Adams over U.S. participation in the Panama Congress and with Jackson over nullification, and President James Garfield and Vice President Chester  A. Arthur came from rival wings of the Republican Party and, after a rupture over patronage, Arthur told a publisher that Garfield had not acted with integrity.27 Although the Twelfth Amendment was not the cause, many nineteenth-­ century vice presidents had disappointing credentials. Arthur had never held a position higher than collector of customs of the Port of New York and the immediately prior Republican president, Rutherford B. Hayes, had discharged him from that position. Garret A. Hobart, William McKinley’s first vice president, had never held a political office higher than serving in the New Jersey state legislature. Vice presidents were often in failing health when chosen. In addition to Clinton and Gerry, five other vice presidents died in office from 1812 to 1912.28 Predictably, an office with little to do populated by undistinguished and often ailing persons was not a good political springboard. Among vice presidents from 1804 until the end of the century, only Van Buren was elected president and only Clinton (6) and John Breckinridge (72) received any electoral votes at all for president after serving in the second office. Although Tompkins served two terms with Monroe and Clinton and Calhoun each served under two different presidents, the eight vice presidents who completed their first

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term and did not then run for president were not renominated for a second term.29 Daniel Webster, a great political leader with an impressive career, declined nomination as Zachary Taylor’s 1848 running mate since “I do not propose to be buried until I am dead.”30 Webster’s dismissal of the vice presidency suggested the absence of duties and political influence were powerful disincentives against taking the position, at least as an option for some able people interested in public service. It was no stepping stone to the presidency. By mid-­century the vice presidency surely was diminished from its earliest years. The Twelfth Amendment changed the voting rules but the formal amendment was more a response to a path already taken than a pivot that redirected institutional course. Of course, the vice president’s contingent role, as first successor, offered the possibility of significance. “I am Vice President. In this I am nothing, but I may be everything,” said John Adams.31 Although the Twelfth Amendment did not produce an immediate constitutional crossroads for the vice presidency, the need to interpret and apply preexisting constitutional language regarding the office’s presidential succession role did produce a turning point of sorts. The death of President William Henry Harrison in April 1841, one month into his term, brought the presidency and vice presidency to a constitutional crossroads with wide-­ranging implications. Harrison was the first president to die in office. Vice President John Tyler claimed that Harrison’s death made him president, rather than simply requiring him to discharge presidential powers and duties from the second office. Although, as will be seen below, the constitutional issue was both significant and resolved in Tyler’s favor first by practice and then by constitutional amendment, Tyler’s position was controversial and moreover mistaken as a matter of original constitutional intent or meaning.32 The relevant constitutional provision stated, in pertinent part, that “[i]n case of the removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President.”33 Although this textual fragment may seem ambiguous regarding whether “the Same” which devolves is “the said Office” or “the Powers and Duties of the said Office,” the records at the Philadelphia convention indicate that the successor was to remain as vice president while handling presidential powers and duties. Consistent with that reading, Hamilton’s references in Federalist No. 68 state that the vice president “may occasionally become a substitute for the President,” and refer to situations that “would authorize the Vice-­President to exercise the authorities and discharge the duties of the President,” significantly in neither instance describing the vice president as becoming president.34 The Twelfth Amendment is even more specific, providing in part that if neither the Electoral College nor the House produces a president-­elect “the Vice-­President shall act as President, as in the case of the death or other constitutional disability of the President,”35 confirmation

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that the Constitution contemplated that presidential death would not elevate the vice president but simply enjoin him to discharge presidential powers and duties from the second office.36 Tyler, however, maintained that he was president and his interpretation prevailed. Three other presidents—Zachary Taylor, Abraham Lincoln, and James Garfield—died during the century and on each instance their vice presidents—Millard Fillmore, Andrew Johnson, and Arthur—followed Tyler’s precedent. Just as Tyler was recognized as the tenth president (not simply the tenth vice president) these Tyler successors (as vice presidents who became president) are treated as the thirteenth, seventeenth, and twenty-­first presidents respectively.37 Although these four vice presidents accordingly became president, none was nominated for a presidential term of his own. The Tyler precedent elevated the stature of these, and later, vice presidents who held office when a president died but it also created a constitutional problem, which later emerged. The constitutional text of the Presidential Succession and Inability Clause quoted above treated each of the four contingencies— death, removal, resignation, and inability—identically. The unavoidable conclusion from a literal reading was that if the presidency, not simply the powers and duties, devolved when the president died, it also did so when he was disabled. Yet the consequences of such a construction were quite different following presidential death, resignation, or removal, three situations in which the original president could not resume his powers and duties, as opposed to following a presidential inability, which could sideline the president only temporarily rather than permanently. The Constitution envisioned a single president38 and accordingly if presidential inability, like presidential death, caused the office to devolve, then the vice president was now president and his disabled predecessor was now an ex-­president.39 The conceptual conundrum created a constitutional crisis after Garfield was shot in July 1881. During the eighty days before his death, Garfield was often unconscious and performed only one official act.40 Although his cabinet recognized that he was disabled, its members divided over their authority to transfer power to Arthur and whether such an action would displace Garfield should he recover. Ultimately, the group decided to put the problem to Garfield, but he died before that occurred.41 The combination of four presidential deaths, Calhoun’s resignation, and six vice presidential deaths (Clinton, Gerry, King, Wilson, Hendricks, and Hobart) left the vice presidency unoccupied on eleven occasions for almost twenty-­seven years from 1812 through 1900. Given the office’s modest station, vice-­presidential vacancy did not present a problem. Woodrow Wilson, an eminent political scientist before his political career, wrote near the end of the century that the “chief embarrassment” in discussing the vice presidency was that “in explaining how little there is to be said about it one has evidently said

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all there is to say.”42 Although the Tyler precedent changed the understanding of the vice president’s role when the president died (or theoretically, when he resigned or was removed) and complicated decision making when a president became disabled, the vice presidency itself remained at century’s end a position with only contingent importance and with an insignificant ongoing role.

Incremental Steps amid Continuity In some respects, the early twentieth century perpetuated basic vice-­ presidential patterns of the prior period. In an age when presidential candidates often did not attend their party’s convention, party leaders played the predominant role in choosing the running mates up through 1940 or so. They were often motivated by the desire to achieve party harmony and strengthen electoral prospects by ideological or geographic ticket-­balancing or using the second candidate to appeal to a competitive or large state. Vice presidents continued to function primarily as the Senate’s president, a pattern that continued through the service of Alben Barkley (1949–53). When presidents died, the Tyler precedent was followed such that Vice Presidents Theodore Roosevelt, Calvin Coolidge, and Harry Truman were recognized as the twenty-­sixth, thirtieth, and thirty-­third presidents respectively. The deficient system for handling presidential inability, which Tyler’s interpretation compounded and which first became evident following the Garfield assassination attempt, became even more apparent when Wilson’s stroke in September 1919 rendered him disabled for a substantial part of the remaining seventeen months of his term without presidential powers being transferred to Vice President Thomas Marshall. And yet in other ways the office experienced some incremental progress during the first half of the twentieth century, which positioned it for more significant change around mid-­century. Constitutional change often requires a protracted process in which reform proposals are incubated and later implemented in whole or part, and in which successful new practices invite imitation and create new expectations. Consistent with the progressive spirit of the age, the early twentieth century produced proposals to reform the vice presidency. Several interested parties, including Democratic presidential candidate William Jennings Bryan and Republican vice-­presidential candidate Theodore Roosevelt, proposed including the vice president in the cabinet.43 In October 1920, Democratic vice-­presidential candidate Franklin D. Roose­velt described the traditional Senate presiding role of the vice president as an example of “industrial waste.” Roosevelt thought the vice president might be able to help improve executive-­legislative relations and make recommendations on bureaucratic problems.44 After his election in 1920, President Warren G. Harding invited his vice president, Calvin Coolidge, to attend cabinet meetings. The idea was controversial

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in some circles and Coolidge’s predecessor, Thomas Marshall, criticized it as inappropriate.45 Coolidge acceded somewhat reluctantly to Harding’s request but later concluded that the experience had been useful when he succeeded to the presidency following Harding’s death.46 Although Coolidge’s own vice president, Charles G. Dawes, declined to attend cabinet meetings before Coolidge even extended an invitation, his attitude was an aberration; Herbert Hoover’s and Roosevelt’s vice presidents met with the cabinet, thereby establishing a new practice that moved the vice presidency closer to the executive branch.47 Other administrations took small steps to give various vice presidents other executive branch roles. In 1908 President Theodore Roosevelt asked Vice President Charles Fairbanks to represent the United States at a ceremonial event in Quebec, marking the first such vice-­presidential official trip abroad.48 John Nance Garner and Henry Wallace took very occasional foreign trips.49 And Roosevelt gave Wallace significant administrative assignments in the executive branch. That experiment did not go well and ended even before Wallace was dumped from the 1944 ticket, yet Wallace’s activities supported the idea that the vice president could assume executive branch responsibilities.50 Vice presidents during the first half of the twentieth century were accomplished people. Fairbanks, James Sherman, Charles Curtis, Garner, Truman, and Barkley were congressional leaders of one sort or another; Theodore Roosevelt, Marshall, and Coolidge had served as successful governors; and Charles Dawes and Wallace had held high appointive position. In contrast to the prior century, most first-­term vice presidents during the first half of the twentieth century were nominated for a second term when the president with whom they served sought re-­election.51 The three vice presidents who succeeded to the presidency upon their predecessors’ death—Roosevelt, Coolidge, and Truman—each won an additional term of their own, unlike their nineteenth-­ century counterparts. The Transformative Power of Changed Context These incremental steps positioned the vice presidency for turning points, which occurred initially during the Richard M. Nixon vice presidency (1953– 61) and which brought changes that were consolidated during the third quarter of the twentieth century. The principal change involved the movement of the vice presidency to the executive branch but related and important changes also occurred regarding the vice president’s successor role and the status of the office as a presidential springboard. These new practices did not come from new legally mandated, ongoing vice-­presidential roles but rather occurred in response to the new crossroads a changed political, governmental, and technological context presented. The enhanced expectations of national government following the Great Depression

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and World War II drew power to the presidency. As the president was expected to respond to more national and international problems, the vice president became a useful surrogate who could assume some substantive and ceremonial tasks in the executive branch. New technology expanded the ability of media to transmit political information, thereby increasing the pressure for a presidential response, and facilitated national and international travel, which created expectations that government leaders would appear in places once thought too remote.52 The ascendancy of the presidency and relative decline of local political bosses strengthened the president’s political position. In 1940, Roosevelt insisted on Wallace as his running mate as a condition of seeking a third term. The Democratic convention acceded to Roosevelt’s demands despite widespread misgivings about Wallace.53 Roosevelt’s assertion of control of the selection process began a shift in practice that allowed the presidential candidates to play the leading roles in running-­mate selection. Finally, the related perils of the Cold War and the atomic age gave greater importance to the presidency and focused attention on the identity and preparation of the presidential successor. The deaths of Presidents McKinley, Harding, and Franklin Roosevelt and Wilson’s lengthy disability during the first half of the twentieth century created awareness of presidential mortality and the possibility of presidential succession. Truman had not learned of the Manhattan Project until after becoming president, a circumstance that induced Congress to place the vice president on the National Security Council to allow him to become familiar with security policy. The Vice Presidency Moves to the Executive Branch Institutional change typically lags behind the development of the conditions that give rise to the change, a pattern that applied to the relocation of the vice presidency to the executive branch during the 1953–77 period. The conditions sketched above, which had developed during the 1930s and 1940s, affected the vice presidency in a conspicuous way beginning with President Dwight D. Eisenhower’s administration. The office migrated to the executive branch in response to the magnetic pull of a more robust and active presidency. Eisenhower included Nixon in cabinet and National Security Council meetings, which he held on a regular basis, and legislative leadership meetings, as well as occasional private sessions. Nixon chaired executive branch committees and was dispatched on international missions to more than fifty countries, trips sometimes lasting for more than two months. Nixon acted as an occasional administration troubleshooter, performed as an administration spokesperson, and handled many of the political and party functions Eisenhower sought to avoid.54 Nixon gave priority to these institutional and political duties related to the executive branch and spent little time presiding over the Senate.55

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Although Eisenhower claimed that Nixon was not subject to his direction since he was not part of the executive branch,56 that assessment elevated form over reality as someone as shrewd as Eisenhower surely recognized. Nixon was responsive to Eisenhower’s requests since the president’s projects offered more interesting work than presiding over the Senate, good performance would generate other opportunities, and the visibility and credibility from the assignments would advance his presidential ambitions. Eisenhower and Nixon recognized that the president could replace Nixon in 1956 if he so desired, although doing so might impose political costs given Nixon’s popularity in the Republican Party. In fact, Eisenhower did seem to prefer a different running mate in 1956 but was unwilling to alienate Nixon by imposing that decision. Instead, he tried to maneuver Nixon off the ticket, by suggesting that the vice president was more likely to become president if he developed a record in a cabinet position as had William Howard Taft and Herbert Hoover. Nixon recognized that the office he already held maximized his chance of becoming and effectively resisted Eisenhower’s entreaties to move to a cabinet post.57 As the Eisenhower-­Nixon dynamic showed, the president’s control over the selection of his running mate and the prospect of an increased vice-­presidential role in the executive branch changed the relationship between the two top officers. The president was better able to ensure the selection of a politically and personally compatible vice president. The engagement of the vice president in the executive branch created more interaction and greater incentive for the two top officials to consider each other’s interests. Eisenhower saw Nixon as a resource to deploy. Nixon had greater reason to support presidential policies to demonstrate his loyalty. Subsequent administrations followed, and in some ways, expanded the move of the vice president to the executive branch. John F. Kennedy included Lyndon B. Johnson in the same sort of meetings Nixon had attended, sent him on numerous diplomatic missions, and named him as the chair of executive commissions dealing with race and space. Whereas Nixon’s offices were on Capitol Hill, Kennedy gave Johnson an additional suite in the executive office building near the White House, space Johnson’s successors have retained. The executive assignments seemed sufficiently novel that Johnson requested and received Department of Justice legal opinions that they were appropriate. Justice cited the practices of Wallace and Nixon as evidence that the second office had moved closer to the executive branch and could accept delegations of such roles. Johnson proliferated Hubert H. Humphrey’s task force assignments and used him as a foreign emissary and administration salesperson. Nixon’s vice presidents, Spiro T. Agnew and Gerald R. Ford, followed these basic patterns. Both acted as a frequent political surrogate for the administration. Agnew’s most constructive legacy was obtaining support in the executive branch budget

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for vice-­presidential activities. Ford named Nelson  A. Rockefeller to head highly visible initiatives including the Domestic Council and a task force investigating the Central Intelligence Agency.58 The Vice Presidency as Presidential Springboard A constitutional amendment that did not mention the vice presidency nonetheless contributed to the development of the office. The Twenty-­second Amendment, which was ratified in 1951, provided that presidents beginning with Eisenhower could not be elected to more than two terms, and those who had held or acted as president for more than two years of someone else’s term could be elected only once. Although just one previous president (Franklin Roosevelt) had been nominated by his party to exceed the periods the amendment later imposed,59 it was certainly possible that absent these term limits a future president could seek a third consecutive term or could postpone announcing his retirement to guard against being regarded as a lame duck. In that event, the vice president would need to defer running to succeed the president who had chosen him until the president announced his intention to retire. The amendment helped vice presidents of term-­limited presidents plan their political futures. Not only could a second-­term vice president begin his campaign without appearing to challenge the chief executive, it also strengthened his position, governmentally and politically.60 The amendment, of course, did not alone elevate the value of the vice presidency as a presidential springboard. It combined with the office’s greater visibility in a presidential context and the enhanced quality of vice presidents. Perhaps not coincidentally, Nixon in 1960 was the first vice president in more than a century to receive his party’s nomination and win electoral votes for president, narrowly losing one of history’s closest elections. Other vice presidents during the 1953–77 period also found the second office to be a good presidential springboard. After Lyndon B. Johnson succeeded to the office following the assassination of John F. Kennedy, he was elected to a term of his own. His vice president, Hubert H. Humphrey, essentially inherited the Democratic nomination in 1968 and narrowly lost the presidency to Nixon. Even Spiro Agnew, Nixon’s first vice president, led preference polls for the 1976 Republican nomination prior to his negotiated resignation as part of a plea agreement to federal criminal charges. After Nixon’s second vice president, Gerald R. Ford, became president on Nixon’s resignation, he narrowly missed election to a term of his own notwithstanding numerous obstacles. Presidential Succession and Inability Eisenhower’s three presidential disabilities between 1955 and 1957 presented another constitutional crossroads since they were the first such instances during the Cold War and atomic age, a new context that underscored the need

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always to have a functioning president. Although no formal transfer occurred on any of the occasions, Eisenhower’s administration proposed constitutional amendments that provided the basis for the Twenty-­fifth Amendment to the Constitution. When Congress failed to reach consensus on an approach, Eisenhower and Nixon entered a February 1958 agreement to handle presidential inability. Its basic terms, which were disclosed in March 1958, allowed either Eisenhower or Nixon to determine that Eisenhower was unable to discharge presidential powers and duties, thereupon transferring those powers and duties to Nixon.61 Significantly, Eisenhower rejected the idea that the Tyler precedent applied to presidential disability. Rather, under the agreement, Nixon would remain vice president but act as president, not become president. Eisenhower could determine the end of his disability regardless of whether he or Nixon made the initial disability determination. The Eisenhower-­Nixon agreement set a precedent, which their successors followed.62 The Twenty-­fifth Amendment Notwithstanding this stopgap measure, the ratification of the Twenty-­fifth Amendment to the Constitution in February 1967 was a seminal event in the history of the vice presidency. It addressed presidential succession, vice-­ presidential vacancy, and presidential inability but its significance extended beyond its formal provisions to the historic premises upon which it rested.63 The amendment’s four provisions all involved and affected the vice presidency. Section 1 simply formally adopted the Tyler precedent if the president died, resigned, or was removed, thereby implicitly embracing Eisenhower’s conclusion that the precedent did not apply to presidential inability. Section 2 provided that when the vice presidency was vacant, the president could submit a nominee who would take office upon confirmation by the Senate and the House of Representatives. Section 3 allowed the president to recognize his inability to discharge presidential powers and duties and to transfer them to the vice president, who would act as president until the president declared the inability over. Section 4 allowed the vice president, acting with either the principal officers of the executive departments or such other body as Congress might create to supplant the cabinet for this purpose, to determine that the president was unable to discharge presidential powers and duties and accordingly transfer them to the vice president as acting president. Section 4 also shifted simply presidential powers and duties, not the presidency, to the vice president. Unlike the prior section, Section 4 allowed the vice president and cabinet to contest the president’s declaration that his inability had ended, and designated Congress to decide any such dispute with supermajority votes in both houses needed to keep the president from resuming presidential powers.64

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In addition to providing procedures for presidential succession, vice-­ presidential vacancy, and presidential inability, the amendment was significant for the presuppositions on which it rested and the ideas to which it gave constitutional sanction. The amendment reflected a new and different vision of the vice presidency. It saw the vice presidency as the best way to handle presidential succession and inability and rested on the premise that vice presidents were performing important executive branch functions. Accordingly, the amendment rested on the radical idea that the vice presidency should always be filled. Whereas the original Constitution had demonstrated its indifference to the office once the electors had voted by providing no way to fill a vice-­presidential vacancy until the next presidential election, Section 2, for the first time, furnished a way that the president and Congress could promptly fill the office.65 Although the office had been vacant more than 37 of the first 178 years or 21 percent of the time before the amendment was ratified, thereafter it would be unoccupied only during the time needed for the president to nominate and Congress to confirm a replacement.66 The amendment was constructed based on practices and assumptions that had developed particularly in recent years. For instance, it rested on the idea that the vice president primarily operated in the executive branch as a presidential successor and subordinate. As such, the president was entitled to a vice president with whom he was personally and politically compatible.67 It allowed the president to nominate a vice president, essentially imitating the practice that the presidential nominee controlled the selection of his running mate. Finally, it included Congress as a check on that choice to simulate the election a vice president normally faced. The inclusion of the House of Representatives, in addition to the Senate, distinguished the process from a typical advice and consent proceeding, included those whose short terms and smaller constituencies brought them closer to the people, and came close to approximating the size of the Electoral College.68 The Twenty-­fifth Amendment marked a historic moment regarding the vice presidency. It responded to longstanding deficiencies in arrangements for handling presidential inability and improved America’s system for handling presidential succession by providing a means to fill a vice-­presidential vacancy. It recognized, and gave constitutional imprimatur to, the growth and significance of the vice presidency. And shortly after taking effect, the amendment helped America navigate a constitutional crisis. When Agnew resigned as vice president on October 10, 1973, Nixon nominated Ford, the popular Republican House minority leader, to replace him. Since the Democrats controlled the House (and the Senate), Speaker Carl Albert was first in line of succession and Nixon’s removal (or some other succession contingency) would have changed party control of the White House, notwithstanding Nixon’s landslide victory the prior year. Ford’s

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confirmation meant that Nixon’s removal pursuant to the impeachment proceedings then gathering steam or his eventual resignation would not deprive Republicans of the presidency.69 Yet notwithstanding the vice presidency’s move to the executive branch, the increased caliber of its occupants, and its advantages as a political springboard, the reality of the office did not match the robust portrait of it implicit in the vision behind the Twenty-­fifth Amendment. Eisenhower was not always supportive of Nixon. Johnson was frustrated and felt excluded as vice president. He gave Humphrey numerous assignments but many involved second-­or third-­tier problems that occupied Humphrey’s time but demeaned his office. Johnson generally excluded Humphrey from important discussions regarding the war in Vietnam. Nixon derided Agnew, rarely saw him, and relegated him to acting as a political attack man. And Rockefeller found that his anticipated influence over domestic policy never materialized; he was asked to withdraw from Ford’s 1976 ticket before he had held the vice presidency even a year.70 For all its growth after a move to the executive branch, the presidential succession role was still the chief constitutional function of the vice presidency as America celebrated its bicentennial in 1976. The imperative of a ready, able, and compatible presidential successor in a nuclear age helped justify the vice president’s enhanced executive role yet the institution had not made the further journey into the president’s inner circle. The White House Vice Presidency That monumental turning point occurred in 1976–77 and the principal trailblazers were Jimmy Carter and Walter F. Mondale. They were responsible for significant innovations in the vice-­presidential role, which made the vice president an engaged across-­the-­board presidential adviser and troubleshooter, thereby making his ongoing work in the executive branch more important than his contingent role. They also participated in changes in vice-­presidential selection and campaign role that reinforced the new vice-­presidential status. The innovations Carter and Mondale created were adopted by successor administrations and candidates on a bipartisan basis, thereby transforming the vice presidency. And the metamorphosis resulted not from the imposition of new legally mandated requirements but rather from the creation, implementation, and then repetition of viable practices and the expectations that developed from that experience.71 Carter was committed to elevating the vice presidency and wanted to select a running mate of presidential quality with whom he was politically and personally compatible and who would help in areas where Carter was weak. After Carter secured the Democratic presidential nomination about five weeks before the convention opened, he embarked on a systematic vice-­presidential search process. Carter and close associates consulted with party leaders to

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construct a short list of prospective running mates who were closely vetted through oral questioning, production of financial, health, and personal documentation, one-­on-­one interviews with Carter, and further third-­party consultation. Carter concluded that Mondale well-­met his criteria. Carter involved Mondale visibly in campaign planning and their staffs worked together. Carter and Ford included a vice-­presidential debate in the series of presidential debates, and Mondale’s performance and his campaigning in key states were credited as important factors in Carter’s narrow Electoral College victory. Based on a study of the office, Mondale concluded that prior vice presidents had mistakenly tried to elevate their positions by acquiring responsibility for areas of government operations. Since presidents were reluctant to entrust major ongoing responsibilities to someone they could not remove, vice presidents often received minor duties, which were demeaning but time-­ consuming. Instead, Mondale asked Carter to include him as a general advisor and troubleshooter on important matters.72 Carter and Mondale understood that the vice president’s performance of that role would depend on appropriate resources, including access to Carter and other senior officials, access to information, staff support, and Carter’s visible backing to give others incentive to deal with Mondale. Carter provided these resources and reinforced Mondale’s requests by giving him a choice West Wing office, a weekly private lunch with Carter, and by admonishing other officials to treat Mondale respectfully. Carter and Mondale successfully implemented the vice-­presidential model during their term. Mondale became part of Carter’s inner circle and advised him on the full range of issues he encountered. Mondale had told Carter that a vice president could act as an independent voice who could help the president hear a range of views, not simply those presidential advisors thought the president would find to his liking.73 Mondale did not shy from that role. He performed major troubleshooting missions abroad, such as his trips to the Middle East and to China, and domestically, like spearheading ratification of the Panama Canal treaties.74 Four decades after Mondale left office, his vice-­presidential legacy is not confined to the contributions during his term but includes the way in which the vision, resources, and behavior he identified for the office and its incumbent have endured, thereby creating a new institution that I have called the White House vice presidency. George  H.  W. Bush acknowledged when he succeeded Mondale that Mondale’s approach provided a “very good model,”75 and Ronald Reagan and Bush, with some variation, followed that design, giving it a bipartisan imprimatur. Bush leveraged his loyal service to Reagan to be elected president following Reagan’s two terms, thereby becoming the first sitting vice president since Van Buren to achieve that feat—which Nixon (1960) and Humphrey (1968) had narrowly missed. Some later vice presidents, like

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Dan Quayle and Al Gore, assumed significant ongoing roles of the sort Mondale avoided but, like Bush, they followed the basic design Mondale created, serving as presidential advisers and troubleshooters. Whereas Mondale and other vice presidents saw the office as the best presidential springboard, Dick Cheney agreed to serve as George  W. Bush’s vice president for two terms even though he had abandoned the idea of a presidential run. For someone with Cheney’s resumé (he had served as White House chief of staff, as House of Representatives minority whip, and as secretary of defense) and opportunities (he was chairman of the board and CEO of Halliburton), to be willing to serve as vice president notwithstanding his lack of presidential ambition and his health history (he had suffered three heart attacks before 2000) confirmed that being vice president was no longer the insignificant office that John Adams had disparaged.76 Joe Biden essentially followed and expanded the Mondale model and sustained his influence and level of activity for the entire two terms he served with Barack Obama without diluting his own identity.77 Like Cheney, Biden did not run for president as a sitting vice president although he benefited from its springboard effect in 2020.78 Although Mike Pence apparently was part of the White House inner circle consistent with the White House vice presidency, President Donald Trump’s idiosyncratic leadership style presented challenges.79 The protracted vice-­presidential selection process and vice-­presidential debate are additional legacies of 1976. The earlier conclusion of presidential nominating campaigns, which was encouraged by the greater emphasis on presidential primaries and caucuses beginning in the early 1970s, gave presidential candidates more time to consider the decision and increased the public focus on the selection.80 The vice-­presidential debate has become a quadrennial institution, having been part of every presidential election since 1976 except 1980. These two institutions provide further incentive for presidential candidates to choose a qualified and compatible running mate. Institutional change is inevitable, yet the history of the vice presidency suggests that significant development comes in many, and sometimes unpredictable, forms. Clearly formal arrangements matter; therefore the constitutional provisions that made the vice president the president of the Senate dictated the behavior of occupants from Adams to Barkley. Yet initial design cannot control all conduct. The fact that the Founders envisioned electors casting two presidential votes did not prevent that same generation from fielding balanced tickets that undermined the original design and ultimately led to the Twelfth Amendment. That formal change modified vice-­presidential election but it is not clear that it caused the office to decline. Harrison’s death brought the vice presidency to a crossroads and Tyler’s misinterpretation of the presidential succession clause constituted a key turning point regarding presidential

Crossroads in Vice-­Presidential History  195

succession and inability. The understanding that the vice president became president rather than simply discharging the presidential powers and duties contributed to the constitutional challenges during the Garfield, Wilson, and Eisenhower disabilities and the last, which occurred during the atomic age and Cold War, presented a crossroads that required an informal agreement between Eisenhower and Nixon and then the Twenty-­fifth Amendment to clean up the mess. Vice-­ presidential crossroads have not entirely resulted from, or produced, formal arrangements that affected the office. Turning points have varied sources. Contextual change during the first half of the twentieth century brought the vice presidency to a crossroads that affected its constitutional identity and job description. The growth and migration of the vice presidency to the executive branch in the mid twentieth century followed larger changes in American government and politics, in technology, and in world affairs. The rise of the presidency made the identity and preparation of the presidential successor more important. Accordingly, as a practical matter, vice presidents moved from the legislature to the executive branch. Although the formal duties of the office were not amended, vice presidents spent more time in the executive branch than presiding over the Senate. Finally, Carter’s desire to make full use of his vice president presented another vice-­presidential crossroads during the mid-­1970s. His individual initiative, and that of Mondale, created a new path, the White House vice presidency. It developed as enlightened leaders imagined a new vice-­presidential role and the required resources and implemented that role successfully. Their achievement invited imitation and created new expectations. This history suggests the ability of political institutions to assume different roles in response to a variety of factors. More specifically, it suggests that the evolution of the vice presidency, as with other institutions, is continuing, and that today’s patterns may not fully describe those of the future.

Notes 1. Joel K. Goldstein, “The New Constitutional Vice Presidency,” Wake Forest Law Review 30, no. 3 (Fall 1995): 505, 510–11 and n. 12. See also Arthur M. Schlesinger Jr., “Is the Vice Presidency Necessary?” Atlantic Monthly (May 1974). 2. Max Farrand, ed., The Records of the Federal Convention of 1787, 3 vols. (New Haven, Conn.: Yale University Press, 1911) 2:427. 3. Ibid. 4. Ibid., 473, 481. 5. Farrand, The Records of the Federal Convention of 1787, 2:493–95. 6. Alexander Hamilton, Federalist No. 68, in The Federalist Papers, ed. Clinton Rossiter (New York: Mentor, 1961). 7. See Goldstein, “New Constitutional Vice Presidency,” 512–15.

196  Joel K . Goldstein 8. Farrand, The Records of the Federal Convention of 1787, 2:537. 9. Ibid. Sherman also noted that without a vice president the state that produced the

president pro tempore would be denied equal representation save on the rare occasion of tie votes. 10. U.S. Const., art. I, sec. 3, cl. 5 (“The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States”). 11. U.S. Const., art. II, sec. 1, cl. 6 (“. . . and the Congress may by law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected”). 12. Goldstein, “New Constitutional Vice Presidency,” 513. 13. Annals of Congress, 8th Cong., 1st sess. (1803), 21 (comments of Sen. Jonathan Dayton). 14. Hamilton, Federalist No. 68. 15. See generally Joel K. Goldstein, “Constitutional Change, Originalism, and the Vice Presidency,” University of Pennsylvania Journal of Constitutional Law 16, no. 2 (November 2013): 369, 386–92. 16. Roy E. Brownell II, “A Constitutional Chameleon: The Vice President’s Place within the American System of Separation of Powers, Part I, Texts, Structure, and Views of the Framers and the Courts,” Kansas Journal of Law and Public Policy 24, no. 1 (Fall 2014): 1, 28–29. 17. See, e.g., Brownell, “Constitutional Chameleon, Part I,” 26–27n123; Roy E. Brownell II, “A Constitutional Chameleon: The Vice President’s Place within the American System of Separation of Powers, Part II, Political Branch Interpretations and Counterarguments,” Kansas Journal of Law and Public Policy 24, no. 2 (Spring 2015): 294, 314. 18. C.  F. Adams, ed., The Works of John Adams, 10 vols. (Boston: Little, Brown, 1856), 1:460. 19. See Goldstein, “Constitutional Change, Originalism, and the Vice Presidency,” 385– 86. See also ibid., 389–90. 20. U.S. Const., art. I, sec. 2, cl. 5 (“The House of Representatives shall chuse their Speaker and other Officers”). 21. See Lucius Wilmerding Jr., “The Vice Presidency,” Political Science Quarterly 68, no. 1 (1953): 17, 30–31 (presenting quotations). 22. See, e.g., ibid., 29–30; Schlesinger, “Is the Vice Presidency Necessary?” (“The Twelfth Amendment sent the vice presidency into prompt decline”). 23. Joel K. Goldstein, The White House Vice Presidency: The Path to Significance, Mondale to Biden (Lawrence: University Press of Kansas, 2016), 17–18. 24. See Michael Nelson, “Background Paper,” in A Heartbeat Away (New York: Priority Press Publications, 1988), 29 (observing that the ticket-­balancing practices that predated the Twelfth Amendment had “already begun to degrade the vice presidency”). 25. Goldstein, White House Vice Presidency, 17. 26. Although not necessarily the same party. In 1824, John C. Calhoun was the preferred candidate of both those who supported John Quincy Adams and his chief opponent, Andrew Jackson. 27. Joel K. Goldstein, The Modern American Vice Presidency: The Transformation of a Political Institution (Princeton, N.J.: Princeton University Press, 1982), 7–8; Goldstein, White House Vice Presidency, 18–19; Nelson, “Background Paper,” 30; Roy  E. Brownell  II, “The Independence of the Vice Presidency,” New York University Journal of Legislation and Public Policy 17, no. 2 (2014): 297, 325–27, 329.

Crossroads in Vice-­Presidential History  197 28. The vice presidents who died in office were Clinton (1812), Gerry (1814), William R. King (1853), Henry Wilson (1875), Thomas Hendricks (1885), Garret A. Hobart (1899), and James Sherman (1912). 29. The vice presidents in this group were Burr, Richard Mentor Johnson, George Dallas, Hannibal Hamlin, Schuyler Colfax, William Wheeler, Levi Morton, and Adlai Stevenson (I). Stevenson later ran unsuccessfully for vice president in 1900 with William Jennings Bryan. His grandson and namesake ran for president in 1952 and 1956. 30. Quoted in Nelson, “Background Paper,” 29–30. 31. Quoted in The Diary of William MacLay and Other Notes on Senate Debates, ed. Kenneth  R. Bowling and Helen  E. Veit (Baltimore, Md.: Johns Hopkins University Press, 1988), 6. 32. John D. Feerick, From Failing Hands: The Story of Presidential Succession (New York: Fordham University Press, 1965), 46–51, 55–56, 94–96. 33. U.S. Const., art. II, sec. 1, cl. 6. 34. Hamilton, Federalist No. 68. 35. U.S. Const., amend. XII. 36. See generally Joel  K. Goldstein, “History and Constitutional Interpretation: Some Lessons from the Vice Presidency,” Arkansas Law Review 69 no. 3 (2016): 647, 668–73. 37. Ibid., 673. 38. U.S. Const., art. II, sec. 1 (“The executive power shall be vested in a President of the United States”) (emphasis added). 39. Goldstein, “History and Constitutional Interpretation,” 674–75. 40. Feerick, From Failing Hands, 123–28. 41. Ibid., 135–38; Goldstein, ““History and Constitutional Interpretation,” 675. 42. Woodrow Wilson, Congressional Government (Boston: Houghton Mifflin, 1885), 162. 43. Brownell, “ Constitutional Chameleon, Part II,” 324–26. 44. Franklin  D. Roosevelt, “Can the Vice President Be Useful?” Saturday Evening Post, October 16, 1920. 45. “Marshall Opposed to Seat in Cabinet,” New York Times, December 5, 1920, 4. 46. The Autobiography of Calvin Coolidge (New York: Cosmopolitan Books, 1929), 164; “Coolidge Agrees to Sit in Cabinet at Harding’s Wish,” New York Times, December 17, 1920, 1. 47. Goldstein, White House Vice Presidency, 20–21. 48. Brownell, “Constitutional Chameleon, Part II,” 325–26. 49. Goldstein, White House Vice Presidency, 21; Brownell, “Constitutional Chameleon, Part II,” 337, 339. 50. Goldstein, Modern American Vice Presidency, 136. 51. Goldstein, White House Vice Presidents, 22–23. Vice Presidents Sherman, Marshall, Curtis, and Garner all were renominated for a second term. Of those eligible, only Wallace was not so fortunate although Garner did not receive a third term after challenging Roo­se­ velt for the Democratic presidential nomination in 1940. 52. Goldstein, Modern American Vice Presidency,15–45, 140–42. 53. Richard Moe, Roosevelt’s Second Act: The Election of 1940 and the Politics of War (Oxford: Oxford University Press, 2013), 228–40. 54. Goldstein, White House Vice Presidency,25; Goldstein, Modern American Vice Presidency, 152, 159, 162, 163, 167–68, 178, 184–85, 190–91. 55. Goldstein, Modern American Vice Presidency, 142; Paul T. David, “The Vice Presidency: Its Institutional Evolution and Contemporary Status,” Journal of Politics 29, no. 4 (November 1967): 721, 731. 56. Dwight D. Eisenhower, Waging Peace, 1956–61 (Garden City, NY: Doubleday, 1965), 6.

198  Joel K . Goldstein 57. Goldstein, White House Vice Presidency,29–30. 58. Ibid., 26–28, 33; Goldstein, Modern American Vice Presidency,152–57; David, “The Vice

Presidency: Its Institutional Evolution and Contemporary Status,” 721. 59. In addition, U. S. Grant sought a third, but nonconsecutive, term in 1880 but failed to win the nomination although he led the vote for thirty-­five ballots. In 1912, Theodore Roosevelt, who had completed the last three and a half years of McKinley’s term and served one of his own, failed to receive the Republican nomination for an additional, nonconsecutive term and received eighty-­eight electoral votes and carried six states as a third-­party candidate. 60. David, “The Vice Presidency: Its Institutional Evolution and Contemporary Status,” 729, 748. 61. John D. Feerick, The Twenty-­fifth Amendment: Its Complete History and Applications, 3rd ed. (New York: Fordham University Press, 2014), 19–24, 53–54; David, “The Vice Presidency: Its Institutional Evolution and Contemporary Status,” 729–30. 62. Feerick, The Twenty-­fifth Amendment, 53–54. 63. The most comprehensive work on the amendment is Feerick, The Twenty-­fifth Amendment. 64. U.S. Const., amend. 25. See generally, Feerick, The Twenty-­fifth Amendment. See also Joel K. Goldstein, “Taking from the Twenty-­fifth Amendment: Lessons in Ensuring Presidential Continuity,” Fordham Law Review 79, no. 3 (December 2010): 959, 967–69. 65. Goldstein, “New Constitutional Vice Presidency,” 526–32, 536–40; Goldstein, “Taking from the Twenty-­fifth Amendment,” 985–87. 66. Goldstein, “Taking from the Twenty-­fifth Amendment,” 975. 67. Goldstein, “New Constitutional Vice Presidency,” 532–33; Goldstein, “Taking from the Twenty-­fifth Amendment,” 983–84. 68. Goldstein, “New Constitutional Vice Presidency,”534–35; Goldstein, “Taking from the Twenty-­Fifth Amendment,”991. 69. See Feerick, The Twenty-­fifth Amendment, 158; Goldstein, “Taking from the Twenty-­ fifth Amendment,” 972. 70. Goldstein, White House Vice Presidency, 29–35; Joel K. Goldstein, “The Rising Power of the Modern Vice Presidency,” Presidential Studies Quarterly 38, no. 3 (September 2008): 374, 376. 71. This process is developed in detail in Goldstein, White House Vice Presidency, 36–172. 72. Mondale to Carter, “The Role of the Vice President in the Carter Administration,” December 9, 1976, Mondale Papers, Minnesota Historical Society, http://​www2​.mnhs​.org​ /library​/findaids​/00697​/pdf​/Mondale​-­­CarterMemo​.pdf. 73. Mondale, “The Role of the Vice President in the Carter Administration,” 2–3. 74. Goldstein, “The Rising Power of the Modern Vice Presidency,” 379. 75. David Rosenbaum, “Bush Plans to Emulate Mondale Role,” New York Times, January 21, 1981, B3. 76. Joel K. Goldstein, “Cheney, Vice Presidential Power, and the War on Terror,” Presidential Studies Quarterly 40, no. 1 (March 2010): 102, 105. 77. Joel K. Goldstein, “Why Joe Biden Was a Most Unusual—and Effective—Vice President,” Washington Post, January 18, 2017, https://​www​.washingtonpost​.com​/news​/monkey​ -­­cage​/wp​/2017​/01​/18​/why​-­­joe​-­­biden​-­­was​-­­a​-­­most​-­­unusual​-­­and​-­­effective​-­­v ice​-­­president​/​ ?utm​_term​=​.240e62eaa300. 78. Joel K. Goldstein, “Don’t Sell Biden’s Vice Presidential Experience Short,” Sabato’s Crystal Ball, March 7, 2019, http://​crystalball​.centerforpolitics​.org​/crystalball​/articles​ /dont​-­­sell​-­­bidens​-­­vice​-­­presidential​-­­experience​-­­short/.

Crossroads in Vice-­Presidential History  199 79. Joel K. Goldstein, “Mike Pence Has Lasted 2 Years as Trump’s VP. That May Be His Main Accomplishment,” Washington Post, January 18, 2019, https://​www​.washingtonpost​ .com​/news​/monkey​-­­cage​/wp​/2019​/01​/18​/mike​-­­pence​-­­has​-­­lasted​-­­2​-­­years​-­­as​-­­trumps​-­­v p​ -­­that​-­­may​-­­be​-­­his​-­­main​-­­accomplishment​/​?utm​_term​=​.da70af713826. 80. For an extended treatment of vice-­presidential selection, see Goldstein, White House Vice Presidency, 173–224. This chapter is partially drawn from Sidney M. Milkis and Marc Landy, “The Presidency in History: Leading from the Eye of the Storm,” in The Presidency and the Political System, 11th ed., ed. Michael Nelson (Washington, D.C.: CQ Press, 2018), 93–130.

PRESIDENTS, REFOUNDINGS, AND THE “LIVING CONSTITUTION” SI D N E Y M. M I LKIS

Donald Trump’s shocking defeat of Hillary Clinton in the 2016 presidential election and his disruptive term in the White House have aroused hope and fear that America is once again at a crossroads—that the high-­stakes battles over immigration, trade, and healthcare mark fundamental choices about the future direction of the country. Moreover, Trump’s polarizing influence on these existential struggles has raised serious concerns about the “resiliency” of democracy.1 Amid this consternation, however, Trumpism has had one clear salubrious effect: his four years in office piqued interest in the relationship between executive power and the Constitution. President Trump—an iconoclastic businessman who had never served in public office of any kind—might represent a novel development, perhaps an unprecedented threat to America’s constitutional republic. Nevertheless, the proper role of the executive in a representative constitutional government has been a source of heated debate since the Founding. Indeed, Trump’s two predecessors—George W. Bush and Barack Obama— both exercised administrative power aggressively, setting important precedents that enabled Trump’s more provocative unilateral actions.2 In fact, two of the most important Framers—Alexander Hamilton and James Madison—who shared the nom de plume Publius in authoring The Federalist Papers, still the best defense of America’s fundamental law—quickly found themselves in bitter disagreement over the proper scope of presidential power. This dispute was aroused by George Washington’s 1793 Neutrality Proclamation, which announced that the United States would not take sides in the hostilities then taking place between France and Great Britain. Madison, a leader in the House of Representatives, sided with Secretary of State Thomas Jefferson in challenging the constitutional propriety of Washington’s executive action, since it was taken without congressional approval. Writing as Helvidius, a victim of Roman tyranny, Madison argued that Washington’s usurpation of the Senate’s authority to ratify treaties was especially egregious since the 200

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president acted unilaterally to abrogate a 1778 treaty that committed the United States to provide France, America’s great ally during the Revolution, with any necessities of war that had to be brought across the Atlantic. Secretary of the Treasury Hamilton, writing as Pacificus, dismissed his former political ally’s view with a sweeping defense of presidential prerogative. It rested on the distinction he drew between how the Constitution vests authority in the legislature and how it vests power in the executive. Article I, Hamilton pointed out, states that “all legislative Powers herein granted shall be vested in a Congress of the United States,” while Article II does not restrict executive power in that way. “The executive Power,” Articles II states simply, “shall be vested in a President of the United States of America.” The absence of the words “herein granted,” Hamilton argued, meant that the executive power was both wide-­ranging and vested exclusively in the president, “subject only to the exceptions and qualifications expressed in the Constitution.” This constitutional language, Hamilton insisted, merely confirmed the nature of executive power, which was indispensable to the success of a large and diverse republic. Foreign policy, in particular, Hamilton claimed, was of its very essence the province of the president—only the power of Congress to declare war and the Senate to ratify treaties were exceptions. Madison strongly disagreed. A declaration of neutrality was, in effect, a declaration that there should be no war, a decision that rightfully belonged to Congress. To claim that such action was constitutional, Madison argued, was to imply that the executive had a legislative power. Such an argument was “in theory an absurdity—in practice a tyranny.” In the final analysis, Madison believed that a refined and enlarged constitutional republic—a regime dedicated to majority rule, but with due deference to minority rights and the exigencies of competent leadership—required public debate and judgment that could only take place in the legislature and other public forums. The tasks of foreign policy—to declare war, to conclude peace, and to form alliances—were among “the highest acts of sovereignty.” To relegate such decisions to executive decree was to destroy the meaning of self-­government.3 As the political controversies over the executive powers that Presidents George  W. Bush, Barack Obama, and Trump have exercised in national and homeland security reveal, the contretemps between Hamilton and Madison was but the first debate about the relationship between presidential power and the Constitution. But, for the most part, these disputes have taken place amid a strong consensus that the success of the Framers’ grand experiment to create self-­government on a large scale—the exalted, elusive ambition stated in the Preamble of the Constitution urging “We the People,” to forge a “More Perfect Union”—required extraordinary statesmanship that only the president could provide. Although Thomas Jefferson joined Madison in condemning Hamilton’s sweeping defense of executive prerogative as a recipe for despotism, he

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also developed the idea that the president must be a “first citizen”—a leader who “refined and enlarged” the voices of the country’s cacophonous democracy. During his presidency, Jefferson argued that the executive is justified in operating outside the law as long as it provided the people with standards for judging its actions. In fact, when linked securely to popular opinion, Jefferson enthused, the executive would embody American democracy. As he stated in his first inaugural address, only the president can “command a view of the whole ground” and therefore deserved the people’s “support against the errors of others, who may condemn what they would not if seen in all its parts.”4 The brilliant French commentator Alexis de Tocqueville anointed Jefferson the “apostle of American democracy” because his words and actions best captured the profound ambivalence with which America viewed strong leadership: a mixture of dread of centralized power and a yearning for—and fascination with—extraordinary leadership. Even as they pose hard challenges to existing constitutional principles and practices, those who are considered America’s great presidents are the nation’s guiding stars—the standard we use to measure our leaders, especially at the most consequential crossroads the country has traversed throughout American history. In grappling with the profound challenges of the war against terror and the Great Recession, Republican President George W. Bush and Democratic President Barack Obama sought inspiration from, and hoped their leadership was worthy of, the memory of their most celebrated predecessors, notably Abraham Lincoln and Franklin Roosevelt. Although not as attentive to history as most of his predecessors, President Trump closely identified with Andrew Jackson, who led the first populist rebellion against the “establishment.”

American Democracy and Presidential Refoundings Only a few presidents have been deemed worthy of respect bordering on reverence: Washington, Jefferson, Andrew Jackson, Lincoln, and Franklin Roo­se­ velt. There is much to criticize in the record of these presidential “immortals” (as one distinguished historian canonized them).5 Indeed, Jackson’s legacy has been tarnished by the historical memory of his administration’s horrific treatment of Native Americans and fierce resistance to the abolitionist movement. Yet Jackson’s populist assault on political organizations and government institutions planted the seed of mass democracy in the United States and embodied political principles and personal qualities that held sway in the country for nearly three decades. In truth, it is hard to deny that the reigns of all of these “great” presidents were highly consequential: they carried out, as Hamilton hoped our most effective leaders would, “extensive and arduous enterprises for the public benefit.”6 Cities, towns, and babies are named after them.

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Monuments are built in their memory. They are the subjects of popular novels and docudramas. Even when their legacy provokes condemnation, they are spoken of with awe. The fact that Americans crave extraordinary leadership—and think that at certain times in their history it existed—should not be taken for granted. This popular hagiography speaks to something that is unusual, if not exceptional, about American political culture. Madison’s poignant Helvidius essays drew on the experiences of ancient Greece and Rome that dramatically revealed the perils of celebrated leaders like Pericles and Caesar. Such extraordinary leaders traditionally were viewed as a problem in democracies; put simply, their dominant sway over the people threatened to rob citizens of their sovereignty. Indeed, “greatness” in leaders appears more appropriate for monarchy: Alexander, Peter, Catherine, Frederick—all were called great, but it is doubtful that any of them would do well in the New Hampshire primary. In fact, before the United States Constitution was written, the conventional wisdom was that strong executive power and democracy do not mix. Popular rule, properly understood, worked best in small polities, where the people could rule themselves. Or if the size of a country made “pure democracy” impractical, there they delegated authority to representatives who were kept on a very short leash. Legislatures—not executives—were thought to express the voice of the people.7 The history of the American presidency has not completely dispelled the democratic fear of greatness. Consider the indiscretions of perhaps the country’s two most important presidents: Lincoln suspended habeas corpus and established military tribunals; Roosevelt “packed” the Court and interned Japanese Americans. Yet, while previous democracies were fearful of great leaders, Americans are proud of and honor their most consequential presidents. Indeed, the “immortals” of presidential history are revered as great leaders precisely because they were extraordinary exemplars of American democracy. It was said of Lincoln that he appeared to be “our country’s consummate democrat” and “the embodiment of the people’s government.” We revere Lincoln, long after he died, because he appealed to what is best about America—“the better angels of our nature.” In real and metaphorical terms, Lincoln was “everybody grown a little taller.” So it has been with all of America’s most revered statesmen. Washington, Jefferson, Jackson, Lincoln, and FDR all reveal that democratic leadership involves a vital connection between leader and led, and that presidential words and deeds can play an important role in shaping the quality and character of the citizenry. They can make the public more self-­regarding and craven, or they can encourage it to be more energetic and public-­spirited. The development of a mass media, providing for a direct link between the White House and the citizenry, has offered novel—and sometime perilous—opportunity for civic

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engagement. President Trump’s brief reign over American politics made all too clear that a president may use the latest advances in social media to sow discord and bigotry. Yet as Felix Frankfurter once said of Franklin Roosevelt’s pioneering radio fireside chats, FDR had a remarkable ability to take the American people to school on the meaning of their deepest political beliefs. All of America’s most consequential leaders have displayed this talent to exploit what Theodore Roosevelt—an important inspiration for his younger cousin—dubbed the “bully pulpit.” They exerted leadership during the most dangerous crossroads of constitutional development. I refer to these junctures of popular constitutional politics as “refoundings” because they have required presidents to think constitutionally: to interpret the meaning of the Declaration of Independence, the Constitution, and the relationship between the two for their own time. Each of America’s most consequential presidents has infused the country’s founding principles with new meaning. Lincoln’s call for a joining of the principles of the Declaration and the Constitution in order to condemn slavery to extinction is the most famous. But all of America’s most important presidents since Washington (who provided extraordinary leadership in bringing the constitutional presidency to life)—Jefferson, Jackson, Lincoln, and Franklin  D. Roosevelt—have justified regime change in terms of fundamental principles and constitutional norms. They have demonstrated that Jefferson’s elusive, exalted idea of a “living” Constitution was not an idle dream. They also have shown that the term “conservative revolutionary” is not an oxymoron. Playing the pivotal role in constructing a new political order, these presidents were revolutionary. By going back to—and redefining—first principles for their own time, they were conservative.

Refoundings and Political Parties Beyond rhetoric, America’s refoundings have been collective engagements. Presidents have been at the center of the storm, but they have not created new regimes on their own. Perhaps most important, Washington aside, regime building has required extraordinary party leadership. Political parties have not always constrained presidential ambition. In fact, all of the presidents who instigated regime change have either been founders or refounders of a political party. In important respects these refounding presidents used their parties to remake American politics in their own image. But extraordinary party leadership serves mostly to highlight the collective nature of great political transformations. The alliance between refounding presidents and collective organizations with a past and a future is one critical difference between democratic leaders and demagogues who, Hamilton warned, “flatter [the people’s] prejudices [only] to betray their interests.”8 Political parties have kept presidents faithful to broader interests, even as, episodically, they have given them the

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political strength to embark on ambitious projects of national reform. Moreover, prior to the New Deal, none of the programs that formed the core of a new political regime called for a substantial expansion of executive power. The distinctiveness of Franklin Roosevelt’s refounding and the New Deal political order follows from the way they departed from the idea of limited constitutional government. The first to question the idea of limits on the ends and means of government were the Progressive reformers who marked a critical precursor to the rise of an executive-­centered administrative state. Theodore Roosevelt, in particular, was dismissive of the “parchment barriers” that stood in the way of implementing the people’s will. The New Deal then prescribed a new understanding of rights that erased many of the traditional impediments to deploying the federal government in the public’s service. The later use of the federal government by the Great Society to dismantle the ramparts of Jim Crow–style racial segregation further embellished centralized administration. The “steward of the public welfare,” as Theodore Roosevelt famously described the modern executive, became the principal object of the public’s heightened expectations about what the national government could do and should accomplish. The conclusion to this chapter will consider how the president’s essential uneasy place in the American constitutional order has been transformed by the expanded reach of federal activity at home and abroad. The rise of an executive-­centered administrative state has strengthened the national government’s capacity to ameliorate massive economic dislocations at home and to protect the homeland from terrorism. At the same time, this development has weakened constitutional constraints on presidents and aroused “populist” assaults from the right and left that have sharpened political conflict and rattled national resolve. In such a political environment, the prospects for another refounding seem bleak. More ominously, the fractious nature of contemporary American politics makes the American people all too vulnerable to the appeals of presidential candidates and presidents who denigrate, rather than redeem, representative constitutional government.

Bringing the Constitutional Presidency to Life Despite the reverence most Americans express for the Father of Our Country, scholars and journalists have had a difficult time grasping the significance of George Washington’s two terms. Although most historians and political scientists readily grant that Washington’s presidency was highly significant, his extraordinary influence is more difficult to discern than the contributions of the refounding presidents who followed him. Jefferson, Jackson, Lincoln, and FDR were consummate democrats who readily entrance their biographers. In contrast Washington, both during his lifetime and in historical memory, is

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more elusive. He appears to be an exalted patriarch who at first glance seems rather lifeless—more monument than man. Nonetheless, Washington’s presidency was no less important than the other consequential presidents. In fact, it was Washington who gave literal meaning to the term “conservative revolutionary.” His bearing and his principles were so conservative that it is hard to conceive of him as a revolutionary; yet it is difficult to imagine the success of the Revolution and the ratification of the Constitution in his absence. Not only was he elected to two terms unopposed, but the certainty that he would serve as the nation’s first president calmed the fears of those among the Constitution writers who, steeped in the memory of King George III, and more ominously, popular demagogues, might otherwise have refused to endorse the establishment of a strong chief executive. As James Madison commented in 1789, Washington was the only aspect of the government that really caught the imagination of the people at the outset.9 Consequently, Washington’s task was to transform his enormous popular appeal into respect for the office he occupied and for the Constitution he had sworn to uphold, and to do so without raising excessive fears of presidential despotism. Through an artful combination of assertiveness and restraint, Washington showed the American people that a strong leader did not have to be a king or despot; indeed, he set the precedents that made a democratic chief executive possible. With the 1793 Neutrality Proclamation, Washington was determined to show that republican government required energetic presidential leadership in foreign affairs. Washington did not assert this authority with the bravado that Hamilton encouraged. He never challenged Congress’s right to overturn his decision by declaring war and even secured congressional endorsement of his specific action with the passage of the Neutrality Act of 1794. Far more significant was the larger issue in the debate between his leading advisors, Hamilton and Jefferson: whether the president is limited by the letter of the Constitution or is a sovereign head of state with discretion to act independently unless the Constitution spells out exceptions and limitations. Washington’s forceful suppression of the rebellion that flared in 1794 in the four westernmost counties of Pennsylvania to protest excise taxes on the production of whisky was undertaken to establish what he believed to be the president’s most important domestic responsibility: upholding the law. Just as the president tempered Hamilton’s advocacy of dominant executive leadership in diplomatic affairs, so did he proceed more cautiously in squelching the Whiskey Rebellion than his secretary of the treasury prescribed. Washington delayed using federal force in Pennsylvania until his protracted effort to conciliate the rebels was rejected, reflecting “his earnest wish to avoid resort to coercion.”10 In the face of the Washington-­led army, the rebellion dissolved. Only twenty rebels were found; they were taken to Philadelphia and charged with

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treason. Two were convicted, but Washington, with his usual determination to show that a strong executive need not be despotic, pardoned them. Although the display of force in Pennsylvania ended anticlimactically, Washington reported to Congress on November 19, 1794, that suppressing the insurrection had demonstrated that the prosperity of the United States “rested on solid foundations, by furnishing an additional proof that [citizens embraced] the true principles of government and liberty.”11 “The first president clearly understood that a government that cannot enforce its laws is not government at all,” historian William M. Goldsmith has written, “and he also realized that within the framework of our complex political system, with its deliberate distribution of power, it is the responsibility of the executive to see that the laws are obeyed.”12 As the foundational dispute about the Neutrality Proclamation revealed, Washington’s tenure was hardly free of polarizing conflict. Similarly, although Jefferson and Madison did not actively oppose federal intervention in the insurrection, the Whiskey Rebellion and Washington’s response to it exacerbated rather than eased the political conflicts that divided Americans in the 1790s. The two most brilliant members of his cabinet, Hamilton and Jefferson, spent considerable time conspiring against and arousing opposition to each other. But Washington’s decision to step down after two terms, an act marked by the release of his Farewell Address, left a legacy of forbearance and disdain for “factions” that ameliorated the fears of Jefferson, Madison, and their followers about executive aggrandizement. The one matter that remained above the partisan fray and made it possible for the nascent Constitution to endure was the character and leadership of Washington himself.

The Revolution of 1800 Washington’s successful refounding, as remarkable as it was, should not deflect attention from the inadequacy of the model he provides for democratic presidential leadership. Washington’s success was unique—it was too dependent on the absence of rivals. Because of his extraordinary gifts and the circumstances in which he came to rule, he was able to rise above rivalry and factionalism. But Washington left no legacy capable of suppressing those centrifugal forces in his wake. It is ironic that the best means for taming factionalism and reconciling rivalry with lawful rotation in power has proven to be an institution Washington feared and despised—the political party. To compound the irony, Jefferson shared Washington’s antipathy. “If I could not go to heaven but as a member of a party, I would not go there at all,” he wrote amid the Federalist– Anti-­Federalist struggle over the Constitution.13 Yet Jefferson created the first American political party—the Democratic-­ Republican Party—to which both the Democratic and Republican parties

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trace their origins. In what he called a “great contest of opinion,” Jefferson’s party triumphed in the election of 1800 over the Federalists, then headed by his friend and rival, John Adams. He called his victory the “Revolution of 1800.”14 This was not an idle boast: it resulted in the first peaceful transfer of power in American history; just as important it strengthened the connection between the executive office and the people. Washington and John Adams were republicans. They acknowledged that the people were the ultimate source of authority, but they believed that the preservation of liberty required checks on popular rule. Jefferson styled himself instead as a democrat. He believed that the primary defense of liberty was not constitutional checks and balances, but majority rule. With Jefferson’s triumph, consequential presidential leadership no longer required the stature to transcend partisanship—the passions and conflicts of democratic life. Thereafter, great presidents had to possess the political gifts and talent to master democratic politics. As Washington understood, the manners adopted by the president are extremely important because they tell the public how it should envisage “the first man.” To emphasize the democratic aspect of the presidency, Jefferson jettisoned the presidential coach and rode his own horse. He ignored distinctions of rank at official functions. He dressed in ordinary attire. But Jefferson’s revision of the presidency was even more about substance than style. Through rhetoric, Jefferson cultivated a political climate in which he could establish profound democratic changes without departing from the constitutional framework established by his Federalist predecessors. As the author of the Declaration of Independence, Jefferson relied, not surprisingly, on declarations to explain his views to the people. His first declaration as president was his first inaugural address, which he used to remind the people, including the bloodthirsty among his followers, that change had to be achieved without violating the liberties of their political opponents: “We are all republicans,” he insisted, “we are all federalists.”15 Jefferson’s second inaugural address sought to explain to the country why the acquisition of the Louisiana territory—perhaps the most important accomplishment of his presidency—was justified, even as he admitted it might violate the Democratic-­Republicans’ understanding of limited constitutional government. Unlike Hamilton, Jefferson never claimed that the vesting clause of Article II gave him sweeping powers. But, he argued, a president could take action beyond the explicit powers granted by the Constitution if that action was explained to, and sanctified by the people. Jefferson acknowledged privately that the Constitution makes no provision for the acquisition and incorporation of new territory. However, he argued that the opportunity to double the size of the United States, gaining control of the Mississippi River in the bargain, was a temporary necessity to secure the foundations of a democratic republic for citizens yet unborn. The Purchase’s great expansion of territory

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would not endanger the Republic because the federative principle embodied in the Constitution—the idea of a large republic divided into sovereign states— would prevent any such threat. America would become a great nation as a decentralized “Empire of Liberty.” Jefferson also argued that national security dictated the Purchase: “Is it not better that the opposite bank of the Mississippi should be settled by our own brethren and children than by strangers of another family? With which should we be most likely to live in harmony and friendly intercourse?”16 Unlike Washington and, later, Lincoln, Jefferson chose not to defend his right to take this fateful action but instead defended the action itself. It would then be up to the people to determine whether his extraconstitutional action was justified or merited their censure. In this constitutional understanding, Jefferson’s reelection and the Democratic-­Republican Party’s decisive victory in 1804 distinguished his audacious maneuver as an act of democratic statesmanship. The historian Arthur Schlesinger Jr. argued that America’s most important presidents obtained their status by enhancing the power of their office and the federal government.17 But that was what the Federalists stood for. Jefferson’s “Revolution of 1800” suggests that refoundings have less to do with power than with purpose. Jefferson and the Democratic-­Republican Party’s purpose was local self-­government. Claiming that only a decentralized republic and a limited executive office could cultivate an active and competent citizenry, he and his Democratic-­Republican allies dramatically reduced the size of the national government, and it remained shrunken until the Civil War. Even today, the United States retains important remnants of Jeffersonian democracy: a commitment to the rights of individuals, a mistrust of elites, and a lack of centralized rule that is unique among modern democracies. In one sense, Jefferson was too successful a democratic leader. His Democratic-­Republican party killed off its Federalist rival in elections. Federalists resisted the democratic politics that triumphed in the “Revolution of 1800.” In fact, the Jeffersonians were also a bit squeamish about partisan competition, and made little effort to sustain the vitality of the Democratic-­ Republican Party. For a time, the United States fell into a one-­party mode of politics that from 1812 to 1820 quickly degenerated into a no-­party mode, which historians have dubbed the “Era of Good Feelings.” Never was an era more inappropriately named. One important lesson of this fractious period was the importance of organized parties. The country suffered under fragmented leadership that had no means to build popular support. In the War of 1812, Jefferson’s heir apparent, James Madison, stayed true to Democratic-­ Republican principles of states’ rights, albeit with disastrous consequences. He seemed to fiddle while the British burned the national capital—a fitting symbol for the decline of national government that continued even after the British retreated.

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Jacksonian Democracy General Andrew Jackson’s great victory at New Orleans, a battle fought after a peace treaty had been struck between the United States and England, allowed Madison to retire with honor. It is in a way fitting, therefore, that it was Jackson, aided by the organizational genius Martin Van Buren, who resurrected democratic allegiance through the creation of the Democratic Party, and more importantly, through the creation of an enduring party system. The battle between the Federalists and Democratic-­Republicans was displaced by the contest between Democrats and Whigs, both of whom embraced the idea that political parties were collective organizations that strengthened rather than threatened the Constitution. Political parties, Van Buren argued, could constrain dangerous popular leadership and ameliorate virulent sectionalism that would rend the Union. The first political outsider to become president, Jackson styled himself as the “tribune of the people.” Jackson’s idea of popular leadership was limited to white males, especially those of relatively modest means—“the humble members of society, the farmers, mechanics, and laborers” who had neither the time nor influence to protect their political interests.18 This idea of democracy left out, indeed was often avowedly hostile to, the rights of African Americans, women, and Native Americans. Nevertheless, the Jacksonians strengthened the presidency and “gave voice in a new age to the rising spirit of democratic nationalism,” which in turn aroused agitation over issues such as protective tariffs and slavery that both the Democrats and Whigs sought to keep off the national agenda. It would be hard to deny, therefore, that important political developments occurred in the 1830s that planted the seeds of mass democracy.19 Paradoxically, Jackson’s strengthening of executive power coincided with a renewed commitment to Jefferson’s assault on centralized government. In the years between their administrations, many limits on federal activity had been relaxed. A second Bank of the United States was established, and financial support for public improvements increased. Jackson vetoed the bill to recharter the bank, arguing that it served to entrench economic privilege and was detrimental to the well-­being of ordinary people.20 He adopted a literal interpretation of the Constitution’s Commerce Clause and was therefore willing to fund only those public improvements that were unambiguously interstate in character. Jackson vetoed Congress’s appropriation for the Maysville Road because, even though it was part of the interstate Wilderness Road, the Maysville portion fell entirely within the Commonwealth of Kentucky.21 Jackson viewed himself as a disciple of Jefferson, but he expanded Jefferson’s understanding of executive power in vital ways. Most importantly, he reconciled Jefferson’s democratic understanding of the executive with Washington’s conception of the president as defender of the Union. Although Jefferson had

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invoked national security as a rationale for the Louisiana Purchase, he never renounced the states’ rights convictions that, prior to his presidency, had impelled him to draft the Kentucky Resolutions. In his mind the Constitution was a compact among the states that left each state considerable power to resist dictates from the national government. Thus the Kentucky Resolutions urged the states to find some means to challenge the odious Alien and Sedition Acts that Congress passed during the Adams administration.22 Jackson shared Jefferson’s preference for decentralized government, but he also showed greater respect for his oath of office. When South Carolina claimed the right to nullify a tariff bill that Congress passed and he signed, Jackson issued a proclamation stating that no state could defy a legitimate act of Congress and that he would suppress any act of rebellion.23 Lincoln’s successful resistance to secession would have been far more difficult but for the precedent Jackson established. The Whigs, who took their name from the party in the British Parliament that sought to constrain the king’s plenary power, viewed Jackson’s forceful leadership as a denigration rather than a renewal of Jeffersonianism. To Henry Clay, who ran against Jackson in the 1832 election, Jackson was America’s Napoleon. Jackson did act forcefully in killing the National Bank, most controversially by removing its deposits and placing them in favored state banks four years prior to the expiration of the Second Bank’s charter. But Jackson’s thoroughgoing populism was routinized and moderated by the Democratic Party. Jefferson was the first president to serve simultaneously as party leader. Indeed, the Democratic-­Republican Party that he and Madison created was indispensable to his election and to his program of limited government. But Jefferson, like most of the Founding generation, detested political parties. He hoped that, after it succeeded in restoring constitutional balance, the Democratic-­Republican Party would wither away. For the most part, it did. In 1820 James Monroe ran for reelection unopposed. The definition of “Democratic-­Republican” became so capacious as to include the son of a Federalist president, John Quincy Adams, whose commitment to an activist federal government was much more akin to Hamilton’s than to his adopted party’s own founder, Jefferson. Strongly influenced by Martin Van Buren, Jackson came to see that a Jeffersonian restoration would require a new form of politics. A political party was not a one-­time remedy to a one-­time problem. The temptation to use government to support economic privilege was ineradicable. The less vigilant and informed the public, the greater the advantages that would accrue to the privilege seekers. Only an active political party could maintain the ongoing level of public concern and mobilization necessary to keep government neutral in the competition for scarce economic goods. To accentuate their commitment to popular political involvement as the key to thwarting the despotism of the

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rich, Jeffersonian Republicans who were rallied by Jackson and Van Buren gave themselves a new name: Democrat. The key to the development of the Democratic Party was the so-­called spoils system. The Jacksonian Democrats argued that the government belonged to the people, and therefore no one should consider public office to be an entitlement.24 The people gave the offices, and the people could take them away. As instruments of the people, the Democrats would award government posts to those who subjected themselves to party discipline and remove them from office if they failed to obey. Thus the system both promoted popular participation by encouraging the hope of gaining office and promoted democratic accountability by enabling party leaders to remove those who failed to do the people’s bidding. The spoils system also sustained the decentralized nature of party politics. When state and local party leaders demanded offices as their reward for rallying voters to the national ticket in congressional and presidential elections, even powerful presidents were not inclined to refuse them. Moreover, to keep their jobs, many federal officeholders, particularly those who served in the widely scattered customhouses and post offices, were required to return part of their salaries to the local party organization that sponsored their office, to do party work, and to “vote right” on Election Day. In this way, decentralized Jacksonian parties imitated the “federative principle” of the government, with lines of authority reaching up and down from the local to the state to the national party. This highly decentralized and mobilized party system provided a connection between the ordinary citizen and the various levels of government that had been absent in the years of no-­party rule. Thus the presidency emerged from the era of Jackson newly empowered. Jackson’s efforts regarding nullification showed that he, unlike Jefferson, would not retreat from Washington’s assertion that the president can wield emergency powers. Furthermore, his understanding of himself as the “tribune” of a national democracy caused him to expand the scope of presidential leadership. Jackson would serve as legislative leader, fighting for new laws that served the public interest and vetoing those that did not. And he embraced the mantel of partisan leadership, spearheading the development of a party that mobilized and disciplined the collective efforts on which the success of their democratically inspired efforts depended. Like Jefferson, however, Jackson’s revolutionary tendencies were conservative. The Jacksonians’ expansion of presidential power was constrained by the end it was meant to serve: limited constitutional government. Both Jefferson and Jackson saw limited government as the essential safeguard of liberty. The Jacksonians’ commitment to small government, reinforced by decentralized parties, was the most important check on presidential power because it constrained any excesses of personal ambition that might arise among Jackson’s successors.

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Lincoln and the Civil War Refounding The Civil War refounding is perhaps the most important of America’s political transformations. For the leadership he displayed in fostering what he famously termed a “new birth of freedom,” Abraham Lincoln won the lasting esteem of the American people as one of their finest presidents. Scholars have shared this celebration of Lincoln’s statesmanship. Yet, during his rise to power and throughout his presidency, Lincoln was subjected to ridicule, and although he gained respect for navigating the uncharted waters of emancipation and a full-­scale domestic rebellion, he was frequently charged with being a despot. Even Lincoln’s greatest champions have granted that he went beyond the normal bounds of presidential power during the Civil War. Lincoln’s bold actions, however, unlike Jefferson’s and Jackson’s, did not expand executive power enduringly. Although he espoused a more universal understanding of liberty than these two predecessors, the reform program that Lincoln championed was still bounded tightly by the nation’s longstanding commitment to natural rights, limited government, and administrative decentralization. Andrew Jackson’s most important act of constitutional statesmanship was his defense of the Union against the efforts of John C. Calhoun and his political allies in South Carolina to abrogate a federal tariff law. This militant defense of states’ rights anticipated the South’s fierce resistance to the abolitionist movement. Jackson was no enemy of slavery; indeed his administration sought to silence criticism by seizing antislavery literature distributed through the United States postal service. But Abraham Lincoln wielded this precedent—this commitment to the Union—in the service of the boldest of all presidentially inspired acts of constitutional change. He discovered in the purpose of Union itself a rationale for purging the shameful constitutional provisions that left America “half slave and half free,” a “house divided against itself.” The slavery controversy that erupted in the 1850s, he warned, showed that America had reached the most fateful of crossroads—a time in its history when it had to decide whether it would become “all one thing or all the other.” Calling on Americans to live up to the principles pronounced in the Declaration of Independence—especially “All men are created equal”—Lincoln set the standard for presidential civic education. In a series of simple yet extraordinary speeches, the greatest being the Gettysburg Address, he explained to the people that the Declaration, not the Constitution, was America’s founding document. This was the pointed meaning of the first words of his brief exalted sermon: “four score and seven years ago” marked 1776, not 1787, as the country’s founding. In Lincoln’s rendering, the Constitution, which codified slavery as a “necessary evil” to form a fledgling nation, had to be adapted to the principle of equal rights as soon as practical circumstances allowed.

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Although Jefferson (the author of the Declaration) and Jackson had invoked the Spirit of 1776, Lincoln reinterpreted the Declaration to invest the Union with a moral—even religious—purpose that gave rise to a new, more positive understanding to the “natural rights” codified by the Declaration. As Daniel Walker Howe has observed, Lincoln’s Gettysburg Address transmuted “the proposition that all men are created equal [into] a positive goal for political action, not simply a pre-­political state that government should preserve by inaction.”25 The Declaration, Lincoln maintained, “did not mean to assert the obvious untruth, that all were actually enjoying that equality, nor yet, that they were about to confer it immediately upon them. They meant simply to declare the right, so that enforcement of it might follow as fast as circumstances should permit.” The principles of the Declaration, therefore, were to be “constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated.”26 Lincoln gave more concrete expression to this new view of liberty in his address to the special session of Congress that convened on July 4, 1861. The Union’s struggle, he told Congress, was to maintain that “form and substance of government, whose leading object is, to elevate the conditions of men—to lift artificial weights from all shoulders—to clear the paths of laudable pursuit for all—to afford all, an unfettered start, and a fair chance in the race of life.”27 Lincoln’s greatest challenge and opportunity was to stay faithful to this purpose in the face of the most dangerous emergency the country has ever faced. His artful joining of the Declaration and Constitution seemed to promise a moderate position toward slavery and a limited role for the president in resolving the issue. As the Chicago Tribune editorialized in boosting Lincoln for president early in 1860, “He has the radicalism which a keen insight into the meaning of the anti-­slavery conflict is sure to give; but, coupled with it, that constitutional conservatism which could never fail in proper respect for existing institutions and laws, and which would never precipitate or sanction innovations more destructive than the abuses that they seek to correct.”28 Yet, the outbreak of Civil War led Lincoln to suspend his constitutional sobriety. As soon as secession became violent and irrevocable, he believed, his oath to uphold the Constitution allowed—even compelled—him to take extraordinary measures, including emancipating the slaves, in order to restore the Union. From the day after the rebels bombarded Fort Sumter on April 12, 1861, until Congress convened on July 4, everything that Lincoln did to protect the Union and prosecute the war was done on his own authority. Some of his actions, such as mobilizing 75,000 state militia, were clearly within the proper bounds of the president’s constitutional authority. Yet Lincoln went well beyond these bounds. Hoping to bring the insurrection to a speedy end, he ordered a naval blockade of the southern coast, enlarged the army and navy (adding 18,000 men to the navy and 22,000 to the army), and suspended the writ of habeas

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corpus in northern and border states where rebellious activity was high. This suspension empowered government officials who were acting under the president’s authority to make arrests without warrant for offenses undefined in the laws without having to answer for their actions before the regular courts. Many of Lincoln’s measures raised grave doubts about the constitutionality of his prosecution of the war. His unauthorized enlargement of the military seemed to disregard blatantly Congress’s clear constitutional power “to raise and support Armies.” The president’s critics also argued that because the power to suspend the writ of habeas corpus during a national emergency appears in Article I of the Constitution, which defines the authority of the legislature, the right to exercise that power belongs to Congress. Moreover, Lincoln claimed sweeping powers not only to arrest and detain those who were suspected of rebellious activity, but also to try them before military tribunals. Lincoln was the first president to authorize the use of these tribunals, which operated outside the rules of evidence and other codes of judicial conduct governing civilian courts. Lincoln’s conception of the president’s responsibility to suppress treasonous activity justified both the suspension of habeas corpus and the establishment of martial law in many areas of the country. Indeed, as the Civil War progressed, Lincoln proclaimed even more comprehensive powers for the military authorities, without any apparent thought of seeking congressional authorization. For example, on September 24, 1862, he issued an executive order declaring that all rebels and insurgents and all persons who discouraged enlistment in the Union Army, resisted the draft, or engaged in any disloyal practice were subject to martial law and to trial by either a court-­martial, which observes rules of evidence similar to those observed by civilian courts, or a military tribunal. This order provoked sharp controversy in the North. It added to the unrest aroused by the draft, which was imposed for the first time during the Civil War. In July 1863 draft riots broke out in New York City, sparking the greatest civil disorder in the nation’s history, save for the Civil War itself. Yet resistance to the draft only served to convince Lincoln that military justice and the suspension of habeas corpus were necessary, not only where the war was being fought but also in some peaceful regions of the country. Lincoln did not assume these extraordinary powers lightly, but only when he believed that his oath of office gave him no choice. As he wrote in an 1864 letter to the Kentucky newspaper editor Albert G. Hodges, domestic rebellion imposed on him an obligation to use “every dispensable means” to “preserve the nation, of which the Constitution was the organic law.” It was senseless, Lincoln argued, to obey legal niceties while the very foundation of the law was threatened: “Was it possible to lose the nation and yet preserve the Constitution? By general law, life and limb must be protected, yet often a limb must be amputated to save a life; but a life is never wisely given to save a limb. I felt that

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measures otherwise unconstitutional might become lawful by becoming indispensable to the preservation of the nation.”29 Not surprisingly, the severity of Lincoln’s war measures prompted charges of “military dictatorship,” even from some Republicans, and has remained the source of considerable debate and controversy. The presidential scholar Clinton Rossiter described Lincoln’s conduct as a “constitutional dictatorship,” an apparent contradiction in terms that was meant to capture Lincoln’s impressive, if not fully persuasive argument that constitutional government has an unqualified power of self-­preservation and that this power is centered in the office of the president. Although Lincoln’s use of power during this supreme crisis was eminently defensible, Rossiter warned, it might set a damaging precedent. “If Lincoln could calmly assert: ‘I conceive that I may, in an emergency, do things on a military ground which cannot constitutionally be done by Congress,’” Rossiter concluded, then “some future President less democratic and less patriotic might assert the same thing.”30 Lincoln’s crisis presidency was not undertaken uno solo, as Rossiter claims. Instead, it was linked to an understanding of the country’s constitutional heritage and to the new Republican Party, which was dedicated to upholding that heritage. All too often, Americans tend to deify Lincoln, a reverence that began immediately after his death as the country sought to come to terms with his assassination on Good Friday. Yet the popular movie Lincoln (released in 2012) has dispelled somewhat this blind worship. It accurately portrays Lincoln as very human—in fact, as a strong partisan who depended on a strong Republican Party to save the Union and to emancipate the slaves. In fact, Lincoln was the most partisan of all the refounding presidents. Almost all of Lincoln’s stature at the time of his election owed to his being the nominee of the Republican Party (which replaced the Whigs at the height of the slavery controversy in the 1850s); and he became the party’s first president in 1860. Although Lincoln’s attachment to party constrained and even frustrated him at times, it provided him with a critical means for influencing Congress and mobilizing political support. His aggressive use of political patronage and his inclusion of the various party factions in his cabinet (as Doris Kearns Goodwin depicts in Team of Rivals)31 enabled Lincoln to fully exploit the Republican Party as a vital political resource for the cause of Union. The importance of Lincoln’s party leadership and its effect on the Constitution are revealed most clearly in the struggle for emancipation. His issuance of the Emancipation Proclamation on January 1, 1863, appeared to place the abolition of slavery alongside the restoration of the Union as the primary objectives of the war. But the proclamation did not emancipate the slaves everywhere; in fact, Lincoln earlier had voided the declarations of two of his generals freeing slaves in captured territory. Instead, Lincoln, who based the proclamation solely on the “war power” and regarded it as a “fit and necessary war measure

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for suppressing rebellion,” abolished slavery only in the unconquered parts of the Confederacy. Significantly, the proclamation also declared that the door was open for African Americans “to be received into the armed forces of the United States.”32 Nearly 200,000 former slaves became Union soldiers, disrupting the South’s labor force and converting part of that force into a northern military asset. Although the Emancipation Proclamation became a critical part of Union war strategy, it neither condemned slavery as immoral nor guaranteed that it would be abolished after the war. Lincoln vetoed the Wade-­Davis Bill of 1864, which included sweeping emancipation and Reconstruction measures that he believed the federal government had no constitutional authority to impose on the states. Yet the president realized that to return the emancipated African Americans to slavery would betray the core principle of the Republican Party. When urged to do so by some northern Democrats, who argued that coupling emancipation with restoration of the Union was a stumbling block to peace negotiations with the Confederacy, Lincoln countered that “as a matter of policy, to announce such a purpose, would ruin the Union cause itself.”33 Thus Lincoln’s Reconstruction policy, which he announced in December 1863, offered a pardon and amnesty to any white southerner who took an oath of allegiance not only to the Union, but also to all of the administration’s wartime policies concerning slavery and emancipation. Emancipation thereby became, as Lincoln had urged in the Gettysburg Address, an end as well as a means of Union victory. But for this cause to become the foundation of a conservative revolution—a true refounding—it had to be endorsed by a popular election and accomplished through regular constitutional procedures. Jefferson and Jackson were content to oversee a fundamental reinterpretation of constitutional principles. Lincoln, seeking to reconcile popular government with devotion to law, worked to achieve abolition by constitutional amendment. In 1864 he took the lead in persuading the Republican National Convention to adopt a platform pledging that, because slavery was “hostile to the principles of republican government, justice and national safety,” the party would accomplish its “utter and complete extirpation from the soil of the Republic.”34 In stark contrast, the Democratic candidate, the reluctant general George McClellan, opposed the Emancipation Proclamation and wanted the Union to continue fighting only until the presecession status quo could be restored. Reelected in 1864 by large majorities, Lincoln and other Republican leaders moved to enact the Thirteenth Amendment—the Emancipation Amendment— which the president considered the keystone of the party platform. Lincoln played a critical part in the complicated congressional maneuvers, “intervening more directly in the legislative process than at any other point in his presidency.”35 Lincoln’s disregard for legal constraints on the war power, therefore, went hand in

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hand with a deep and abiding commitment to the principles and institutions of the Constitution. In his case, popular leadership did not leave a legacy of military dictatorship. Instead, it was dedicated to a conservative revolution—a new constitutional teaching, albeit one steeped in the American political tradition. The Thirteenth Amendment transformed America’s scripture, the Declaration of Independence, into a formal constitutional obligation. That obligation was extended by the Fourteenth Amendment, ratified in 1868, which granted all Americans the “privileges and immunities of citizens of the United States,” “due process,” and “equal protection of the laws.” The Fifteenth Amendment, added in 1870, proclaimed that the “right of citizens of the United States to vote shall not be abridged by the United States or any State on account of race, color, or previous condition of servitude.” The three Civil War amendments changed the course of constitutional development and expanded government’s obligation to protect the rights of the common citizen. But the political order formed by Lincoln and the Republican Party did not seek to remove all limits on presidential power. Even during the war, Lincoln did not forsake the Whig view of executive power, which he had defended as a young politician in the 1830s and 1840s. Consistent with this view, which most Republicans embraced, Lincoln denied that the president could veto bills merely because he disagreed with them. Only legislation, like the Wade-­Davis Bill, that he regarded as unconstitutional would be returned to Congress.36 He deferred almost entirely to Congress on matters unrelated to the war, “contributing little more than his signature” when Republican lawmakers “created a Department of Agriculture, established land grant colleges, passed the Homestead Act (to encourage western settlement), instituted the national income tax, and erected the legislative framework that would lead to the construction of a transcontinental railroad.”37 As the postwar Republican reformer Carl Schurz wrote of Lincoln: “With scrupulous care he endeavored, even under the most trying circumstances, to remain strictly within the constitutional limits of his authority; and whenever the boundary become indistinct, or when the dangers of the situation forced him to cross it, he was equally careful to mark his acts of exceptional measures, justifiable only by the imperative necessities of the civil war, so that they might not pass into history as precedents for similar acts in time of peace.”38 The powers that Lincoln was willing to accumulate as commander-­in-­chief during the Civil War freed him to use the executive office energetically. But Lincoln’s assassination and his replacement as president by the bigoted Andrew Johnson severely limited the Civil War refounding. The failure of Reconstruction was also attributable to the Republicans’ principled opposition to centralized power. That fear formed a critical backdrop to the notorious Compromise of 1877, which enabled white majorities in southern states to enact segregation laws that prevented the enforcement of the Fourteenth and Fifteenth

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Amendments and denied African Americans a full share of citizenship. This debased form of local self-­determination severely constrained presidential power for the rest of the nineteenth century, so much so that the Progressive reformers who emerged at the end of the nineteenth century overwhelmingly viewed party politics as an obstacle to their ambition to construct an executive-­ centered “modern” state on American soil.

The New Deal and the Consolidation of Modern Executive Power Like Lincoln, FDR sought to save the constitutional order by expanding it. In his Commonwealth Club address, delivered during 1932 campaign, Roosevelt explained that that the unspeakable suffering of the Great Depression showed that the economic system would destroy itself if it were not subjected to constitutional reform. Roosevelt argued that the time had come—indeed, it had come three decades earlier—to recognize the “new terms of the old social contract.” It was necessary to rewrite the social contract, FDR argued, to take account of a national economy remade by industrial capitalism and concentrated economic power. This new contract would establish countervailing power in the form of a stronger national state, lest the United States steer “a steady course toward economic oligarchy.” Protection of the national welfare must shift from the private citizen to the government. As FDR put it, “The day of enlightened administration has come.”39 Yet Roosevelt acknowledged that the creation of a national state with expansive supervisory powers would be a “long, slow task.” He was sensitive to the uneasy fit between energetic central government and the Constitution. It was imperative, therefore, that the New Deal be informed by a public philosophy in which the new concept of state power would be carefully interwoven with earlier conceptions of American government. The task of modern government, he announced, was to assist the development of an “economic declaration of rights, an economic constitutional order.”40 The traditional emphasis in American politics on individual self-­reliance—“rugged individualism,” as Herbert Hoover put it—must give way to a new understanding of the social contract, in which government guarantees individual men and women protection from the uncertainties of the marketplace. Government-­provided security was to be the new self-­evident truth of American political life. Defending progressive reform in terms of an economic constitutional order was a critical development in the advent of an executive-­centered administrative state. Theodore Roosevelt and Woodrow Wilson anticipated many elements of this argument, but FDR was the first to advocate an ongoing supervisory role for the government that linked this new social contract to constitutional principles. Although Roosevelt’s triumph was aided greatly by the

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economic exigencies of the Great Depression, his deft reinterpretation of the American constitutional tradition was no less important. This reinterpretation went beyond Woodrow Wilson’s New Freedom, which honored decentralized party practices and emphasized initiatives such as antitrust policy and reform activity in the states. FDR’s eye was fixed more on his cousin Theodore, who expressed an alternative progressive understanding that envisioned a dominant president serving as the “steward of the public welfare.” Theodore Roosevelt’s Progressive Party crusade of 1912, which celebrated social justice and the president as the agent of an unvarnished majoritarianism, made an especially strong impression on FDR and his Brains Trust.41 FDR called his philosophy “liberalism” rather than “progressivism.” He meant to signify that the New Deal would expand rather than subvert the natural rights–based liberal tradition embedded in the Declaration of Independence. As Roosevelt made clear in the Commonwealth Club address, this new understanding of rights required both a return to and a redefinition of the Declaration, a document in which “rulers were accorded power, and the people consented to that power on consideration that they be accorded certain rights. The task of statesmanship has always been the redefinition of these rights in terms of a changing and growing social order. New conditions impose new requirements upon government and those who conduct government.”42 Roosevelt reaffirmed the principles of the Commonwealth Club address throughout his presidency. Like Lincoln, FDR believed that this new understanding of the Constitution had to be sanctified by a popular election, and that an economic crisis of the first order had brought the country to another crucial crossroads that led to freedom or servitude. “Necessitous men,” he insisted, “are not free men.”43 He made the “economic constitutional order” the principal message of his first reelection bid in 1936, the decisive triumph that established for a generation the Democratic Party, recast in the New Deal image, as the majority party in American politics. Just as the 1860 and 1864 Republican platforms had celebrated the Declaration as the nation’s scripture, so did the 1936 platform, drafted by FDR and written in the cadence of the Declaration, emphasize the need for a fundamental reconsideration of rights. As the platform claimed with respect to the 1935 Social Security Act: “We hold this truth to be self-­evident—that government in a modern civilization has certain inescapable obligations to its citizens,” among which is the responsibility “to erect a structure of economic security for [its] people, making sure that this benefit shall keep step with the ever increasing capacity of America to provide a high standard of living for all its citizens.”44 Like all refounding presidents since Jefferson, Roosevelt wielded a powerful partisan weapon, the New Deal Democratic Party, which was dedicated to constructing and sustaining the economic constitutional order he championed. Although FDR did not play a pivotal role in founding a new party, his ability

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to attract new loyalists (such as industrial workers and African Americans) to the Democratic Party was tantamount to a partisan refounding. The benefits of Roosevelt’s party leadership were realized in 1936, an immense victory that relegated the Republican Party, and Herbert Hoover’s concept of “rugged individualism,” to the political wilderness. The GOP candidate, Kansas governor Alf Landon, called for the repeal of the New Deal’s signature program, Social Security, during the campaign. Repealing this state-­mandated pension plan, Landon argued, was necessary to reaffirm the idea of self-­reliance as a core principle of American constitutional government. But this message failed to resonate amid desperate economic straits. Roosevelt won 60 percent of the popular vote— the largest majority yet attained by a presidential candidate—and carried every state but Maine and Vermont. The election also strengthened the Democrats’ hold on Congress, marking their emergence as the nation’s new majority party. The new idea of rights—for all intents and purposes, a second Declaration— was not forgotten during World War II. Instead, it became a central rhetorical theme in mobilizing public support for America’s participation in the struggle. Roosevelt’s Four Freedoms speech, which summoned support for the 1941 Lend-­Lease Act, also engaged Congress and the people in a debate about America’s role in the world. To the traditional freedoms of speech and religion, Roosevelt added two more: “freedom from fear,” dedicated to “a world-­wide reduction of armaments to such a point and in such a fashion that no nation will be in a position to commit an act of physical aggression against any neighbor”; and “freedom from want,” the commitment “to economic understandings which will secure to every nation a healthy peace-­time life for its inhabitants.”45 The Four Freedoms soon became, as historian David Kennedy has written, “a shorthand for America’s war aim.” More to the point, “they could be taken . . . as a charter for the New Deal itself.”46 Americans still live in a polity best defined by the lengthy shadow of the New Deal. In fact, Roosevelt’s legacy—the modern bureaucratic state—may have been the last great transformation in American history, and Roosevelt himself may have been the last refounding president. Roosevelt’s redefinition of the social contract held that the national government was responsible not just for political liberty (“natural rights,” such as speech and religion) but also for the economic and social welfare of the American people (entitlements, such as Social Security, which protects individual men and women from many of the uncertainties of the marketplace). In the pursuit of this “economic constitutional order,” Roosevelt and his New Deal allies aroused intense partisan conflict, condemning their Republican political opponents as “Tories” and “economic royalists.” Although Roosevelt strengthened partisanship in the short run, this may have been the last partisan transformation in American politics. The triumph of the New Deal Democratic Party was really a way station on the road to a

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more administrative Constitution, a more centralized and bureaucratic form of democracy that focuses our political life less on parties and elections, and more on the president, administrative agencies, and social entitlements. As FDR’s Commonwealth Club address anticipated, the day of “enlightened administration” has arrived. Foreign policy reinforced the idea that the New Deal was the final critical crossroads—a destination point—in America’s constitutional development. The importance of the “modern” presidency that anchored the New Deal political order (and the declining importance of party-­centered politics) was augmented by World War II and the Cold War. Like Freedom from Want, what FDR referred to as Freedom from Fear became a new guarantee of security: it signified the government’s responsibility to protect Americans, and all free people, against foreign imperialism—to become, as FDR put it, “the arsenal of democracy.” In the wake of these developments, the president rather than the party became the leading agent of popular rule. Indeed, during his second term and his unprecedented third term, Roosevelt pursued a program dedicated to creating an executive establishment. The centerpiece of this program was the Executive Reorganization Act of 1939. This statute, enacted only after a brutal two-­year struggle in Congress, created the Executive Office of the President. The Executive Reorganization Act is the organic statute of the modern presidency: it transformed the executive, to that point in our history a relatively simple office, into a massive institution and the center of politics and government in the United States. It now constitutes a presidential establishment of 6,000 men and women who serve all the immediate needs of the modern presidency. This is not to say that political parties are not important in contemporary American politics. In the 2016 election and its aftermath, partisan rancor and polarization is more central to the polity than has been the case since New Deal refounding. But the current battle for the constitutional soul of the American people is diminished by the executive-­centered administrative state bequeathed by the New Deal refounding. Presidents no longer run for office and govern as the head of a party; instead, they campaign and seek to enact programs as the head of a personal organization they have created in their own image. As Donald Trump roared in accepting the 2016 Republican nomination for president in Cleveland, “I alone can fix it.”47 Such presidential bravado— and Trump’s aggressive use of executive power during his tumultuous term—is the troubling culmination of developments that have been in the making since the consolidation of a presidency-­centered democracy during the New Deal refounding. Still, given the domestic and international challenges posed by the twentieth and twenty-­first centuries, the New Deal refounding is hard to condemn. A new sense of executive responsibility was needed in the wake of the industrial

Presidents, Refoundings, and the “Living Constitution”  223

revolution, one that the modern presidency has, on the whole, fulfilled admirably. Indeed, extraordinary presidential leadership played a critical part in the two greatest triumphs of recent American history: the end of forced segregation in the South and the triumphant conclusion to the Cold War. These accomplishments—in no small part a credit to the leadership of Lyndon Johnson and Ronald Reagan, respectively—reveal the possibilities for modern presidents to do great things. Yet, in the absence of vital party politics, without institutions that could empower them for monumental accomplishment and keep them faithful to broader interests, both LBJ and Reagan failed to remake the ideas, institutions, and policies that govern political life in the United States. The disappointments of Vietnam under Johnson and Iran-­contra under Reagan reveal how modern presidents bask in the honors of the more powerful and prominent office that emerged from the New Deal. At the same time, they find themselves awash in a sea of competing demands they cannot hope to satisfy—from special interest groups, the ever-­critical media, and an impatient public. As the stormy Clinton, Bush, and Obama presidencies confirmed, the New Deal freed the executive from formal constitutional forms and political parties—each of these presidents took significant extraconstitutional actions— but it did so at the cost of subjecting it to fractious politics within Washington and volatile public opinion outside it. The rancorous conflict that roiled Trump’s presidency, then, might represent a reckoning for long-­term developments that have evolved into a plebiscitary form of politics. This presidency-­centered politics mocks the New Deal concept of “enlightened administration” and exposes citizens to public figures—on the right and left—who exploit their impatience with the difficult tasks of sustaining a constitutional democracy. Considering the shock of recent developments, perhaps we should be content to live in the absence of extraordinary statesmanship and refoundings. The task for today’s effective leaders might not be to leave their mark on the nation—to build a new political order in their own image as past great statesmen have. Instead, their responsibility may simply be to “do the job”— to administer the welfare and national security states that form the core of America’s responsibilities at home and abroad. Recent developments herald a clarion call, as the political scientist Hugh Heclo has wisely counseled, for the American people and their representatives to “think institutionally”—to reimagine the constitutional and institutional constraints that for much of our history have prevented a republican executive office from spawning a Caesar— the popular leader who destroyed the Roman republic.48 But those who would seek to restore the restraints or refinements of institutions must face the imposing obstacle of a government that for years has sacrificed responsible collective leadership to aggressive and resolute presidential action. Unfortunately, appeals to patience and acts of forbearance have become frail vestiges of a

224  Sidne y M . Milkis

polity once praised—or blamed—for its pragmatic centrism. In this teachable moment—when many liberals and conservatives are in search of a new vital center—the great task might be to amplify these frail voices of reason.

Notes 1. Stephen Levitsky and Daniel Ziblatt, How Democracies Die (New York: Crown, 2018). 2. Sidney  M. Milkis and Nicholas Jacobs, “‘I Alone Can Fix It’: Donald Trump, the

Administrative Presidency, and the Hazards of Executive-­Centered Partisanship,” Forum 15, no. 3 (2017): 583–613, ISSN (online) 1540–8884, DOI: https://​doi​.org​/10​.1515​/for​-­­2017​ -­­0037. 3. Letters of Pacificus and Helvidius on the Neutrality Proclamation of 1793 (Washington, D.C.: Gideon, 1845), 53–64. 4. Thomas Jefferson, first inaugural address, March 4, 1801, in The Portable Thomas Jefferson, ed. Merrill D. Peterson (New York: Viking Press, 1975), 294. On Jefferson’s view of the relationship between executive and popular rule, see Jeremy Bailey, Thomas Jefferson and Executive Power (New York: Cambridge University Press, 2007). 5. Arthur Schlesinger Jr., “Rating the Presidents: Washington to Clinton,” Political Science Quarterly 112, no. 2 (Summer, 1997): 179–90. 6. Alexander Hamilton, Federalist No. 72, in The Federalist Papers (New York: New American Library, 1961), 437. 7. Harvey Mansfield, Taming the Prince: The Ambivalence of Modern Executive Power (New York: Free Press, 1989). 8. Hamilton, Federalist No. 71, 432. 9. James Thomas Flexner, George Washington and the New Nation, 1783–1793 (Boston: Little, Brown, 1970), 193. 10. James D. Richardson, ed., Messages and Papers of the Presidents, 20 vols. (New York: Bureau of National Literature, 1897), 1:156. 11. President George Washington, “Report to Congress on Success of Operation,” November 19, 1794, in The Growth of Presidential Power: A Documented History, 3 vols., ed. William M. Goldsmith (New York: Chelsea, 1974), 1:253–55. 12. Ibid., 1:255. 13. Thomas Jefferson to Francis Hopkinson, March 13, 1789, Founders Online, https://​ founders​.archives​.gov​/documents​/Jefferson​/01​-­­14​-­­02​-­­0402. 14. Thomas Jefferson to Spencer Roane, September 6, 1819, in The Writings of Thomas Jefferson, 20 vols., ed. Albert Ellery Bergh (Washington, D.C.: Thomas Jefferson Memorial Association, 1903), 15: 212–16. 15. Jefferson, first inaugural address. 16. Thomas Jefferson, second inaugural address, Bartleby​.com, www​.bartleby​.com​/124​ /pres17​.html. 17. Schlesinger, “Rating the Presidents.” 18. Andrew Jackson, “July 10, 1832, Bank Veto,” https://​millercenter​.org​/the​-­­presidency​ /presidential​-­­speeches​/july​-­­10​-­­1832​-­­bank​-­­veto. 19. Major J. Wilson, The Presidency of Martin Van Buren (Lawrence: University Press of Kansas, 1984), 13. 20. Ibid. 21. Robert Remini, Andrew Jackson (New York: HarperCollins, 1966), 145–46.

Presidents, Refoundings, and the “Living Constitution”  225 22. Thomas Jefferson, “The Kentucky Resolutions of 1798,” adopted by the Kentucky legislature on November 10, 1798, www​.constitution​.org​/cons​/kent1798​.htm. 23. Andrew Jackson, “Proclamation Regarding Nullification, December 10, 1832,” Yale Law School, Lillian Goldman Law Library, http://​avalon​.law​.yale​.edu​/19th​_century​/jack01​.asp. 24. Andrew Jackson, “First Annual Message to Congress, December 8, 1829,” American Presidency Project, www​.presidency​.ucsb​.edu​/ws​/index​.php​?pid​=​29471. 25. David Walker Howe, The Political Culture of American Whigs (Chicago: University of Chicago Press, 1979), 292. 26. Richard N. Current, The Political Thought of Abraham Lincoln (Indianapolis: Bobbs-­ Merrill, 1967), 88–89 (emphasis in original). 27. Ibid., 187–88. 28. Chicago Tribune, February 18, 1860, in Abraham Lincoln: A Press Portrait, ed. Herbert Mitgang (Athens: University of Georgia Press, 1989), 153. 29. “Abraham Lincoln’s Letter to Albert G. Hodges,” in The Evolving Presidency: Addresses, Cases, Essays, Letters, Reports, Resolutions, Transcripts, and Other Landmark Documents, 1787– 1998, ed. Michael Nelson (Washington, D.C.: CQ Press, 1999), 70–74. 30. Clinton L. Rossiter, Constitutional Dictatorship (Princeton, N.J.: Princeton University Press, 1948); see also L. Gerald Bursey, “Abraham Lincoln,” in Popular Images of American Presidents, ed. William C. Spragens (New York: Greenwood Press, 1988), 77–85. 31. Doris Kearns Goodwin, Team of Rivals: The Political Genius of Abraham Lincoln (New York: Simon & Schuster, 2006). 32. Richardson, Messages and Papers of the Presidents, 7:3359. 33. Abraham Lincoln, letter to Charles  D. Robinson, August 7, 1864, in The Collected Works of Abraham Lincoln, 9 vols., ed. Roy P. Basler (New Brunswick, N.J.: Rutgers University Press, 1953), 7:499–500. At the urging of the abolitionist Frederick Douglass, Lincoln did not send the letter to Robinson. Douglass objected to the final sentence of the draft letter that added, “If Jefferson Davis wishes  .  .  . to know what I would do if he were to offer peace and reunion, saying nothing about slavery, let him try me.” “It would be given a broader meaning than you intend to convey,” Douglass warned, and be taken as “a complete surrender of your anti-­slavery policy.” In the face of continuing pressure to retreat on his position, with the strong support of antislavery activists, Lincoln continued to express the moral and practical reasons why he could not go back on the Emancipation Proclamation. Eric Foner, Fiery Trial: Abraham Lincoln and American Slavery (New York: Norton, 2010), 305–6. 34. James  M. McPherson, Abraham Lincoln and the Second American Revolution (New York: Oxford University Press, 1991), 86. 35. Foner, Fiery Trial, 312. 36. Lincoln took this position in refusing to veto a bill that reduced fees paid to the marshal for the District of Columbia; see Basler, Collected Works of Abraham Lincoln, 7:414–15. 37. Matthew Crenson and Benjamin Ginsberg, Presidential Power: Unchecked and Unbalanced (New York: Norton, 2007), 101. 38. Carl Schurz, “Abraham Lincoln,” in Abraham Lincoln, ed. Carl Schurz (New York: Chautauqua, 1891), 72. 39. The Papers and Addresses of Franklin  D. Roosevelt, 13 vols., ed. Samuel  I. Rosenman (New York: Random House, 1938–1950), 1:751–52. 40. Ibid., 1:756. 41. Sidney M. Milkis, Theodore Roosevelt, the Progressive Party, and the Transformation of American Democracy (Lawrence: University Press of Kansas, 2009). 42. Ibid., 756.

226  Sidne y M . Milkis 43. Franklin Roosevelt, Speech to the Democratic National Convention, June 27, 1936, https://​millercenter​.org​/the​-­­presidency​/presidential​-­­speeches​/june​-­­27​-­­1936​-­­democratic​ -­­national​-­­convention. 44. “Democratic Platform of 1936,” in National Party Platforms, ed. Donald Bruce Johnson (Urbana: University of Illinois Press, 1978), 360. 45. Roosevelt, Papers and Addresses, 9:671–72. 46. David M. Kennedy, Freedom from Fear: The American People in Depression and War, 1929–1945 (New York: Oxford University Press, 1999), 469–70. 47. Donald Trump, Speech at the Republican National Convention, July 22, 2016, https://​ www​.cnn​.com​/2016​/07​/22​/politics​/donald​-­­trump​-­­rnc​-­­speech​-­­text​/index​.html. 48. Hugh Heclo, On Thinking Institutionally (On Politics) (New York: Oxford University Press, 2011).

CONTRIBUTORS

Michael Nelson is the Fulmer Professor of Political Science at Rhodes Col-

lege and a senior fellow at the University of Virginia’s Miller Center. His books include Resilient American: Electing Nixon in 1968, Channeling Dissent, and Dividing Government, which won the American Political Science Association’s Richard E. Neustadt Award for best book on the American presidency in 2015; and How the South Joined the Gambling Nation: The Politics of State Policy Innovation, which won the Southern Political Science Association’s V. O. Key award for best book on southern politics in 2009. His most recent book is Clinton’s Elections: 1992, 1996, and the Birth of a New Era of Governance.

Barbara  A. Perry is Gerald L. Baliles Professor and director of presidential studies at the University of Virginia’s Miller Center. Her books include 41: Inside the Presidency of George  H.  W. Bush (with Michael Nelson), 42: Inside the Presidency of Bill Clinton (with Michael Nelson and Russell Riley), and Showdown at Val-­Kill: How John Kennedy and Eleanor Roosevelt Found Common Ground and Launched a Women’s Rights Movement (forthcoming). Bradley R. DeWees is a U.S. Air Force Special Warfare Officer. An alumnus of the Chief of Staff of the Air Force’s Prestigious PhD Program, he holds a doctorate in public policy from Harvard University, where his research focused on decision making and international relations. Richard  J. Ellis is Mark  O. Hatfield Professor of Politics, Policy, Law, and

Ethics at Willamette University. His recent books on the presidency include Old Tip vs. the Sly Fox: The 1840 Election and the Making of a Partisan Nation, The Development of the American Presidency (third edition), and (as coeditor) Historian in Chief: How Presidents Interpret the Past to Shape the Future. Stefanie Georgakis Abbott is the associate director of presidential studies at the Miller Center at the University of Virginia. She is the coeditor of Crucible: The President’s First Year (with Michael Nelson and Jeff Chidester) and Addressing Integration and Exclusion: Democracy, Human Rights, and Humanitarian Intervention (with Yannis Stivachtis). Joel K. Goldstein , the Vincent C. Immel Professor of Law Emeritus at Saint

Louis University School of Law, has written widely regarding the presidency, vice presidency, and constitutional law. He is best known for his books and 227

228 Contributors

articles dealing with the vice presidency, including The White House Vice Presidency: The Path to Significance, Mondale to Biden and The Modern American Vice Presidency: The Transformation of a Political Institution. Jennifer L. Lawless is the Commonwealth Professor of Politics at the Univer-

sity of Virginia, where she is also a senior fellow at the Miller Center and a faculty affiliate at the Batten School of Public Policy. She is coeditor in chief of the American Journal of Political Science, and the author of six books and dozens of articles, most of which focus on campaigns, elections, and women in politics.

Sidney M. Milkis is the White Burkett Miller Professor of Politics and a Miller

Center faculty fellow at the University of Virginia. His current research focuses on presidents, social movements, and partisan polarization.

Saikrishna Bangalore Prakash is the James Monroe Distinguished Pro-

fessor of Law and Miller Center senior fellow at the University of Virginia and the author of The Living Presidency: An Originalist Argument against Its Ever-­ Expanding Powers. His scholarship focuses on the Constitution’s separation of powers, particularly in regard to the presidency.

Russell L. Riley is White Burkett Miller Center Professor of Ethics and Insti-

tutions at the University of Virginia, where he co-­chairs the Presidential Oral History Program. His books include The Presidency and the Politics of Racial Inequality: Nation-­keeping from 1831 to 1965; Inside the Clinton White House: An Oral History; and several edited volumes based on the Miller Center’s oral history interviews.

Andrew Rudalevige is Thomas Brackett Reed Professor and chair of the Department of Government and Legal Studies at Bowdoin College. His books include The New Imperial Presidency: Renewing Presidential Power after Watergate, The Politics of the Presidency (tenth edition), and the forthcoming By Executive Order. Sean  M. Theriault is a University Distinguished Teaching Professor in

the Department of Government at the University of Texas at Austin. He is the author or coauthor of five books, including The Great Broadening, which received the Fenno Prize of the American Political Science Association for the best book written on legislatures in 2019.

INDEX

Page numbers with an italic f or t appended indicate a figure or table. ABC News, 64, 141 abuse of power: as Clinton impeachment charge, 97, 98; Dershowitz on, 117n113; as Nixon impeachment charge, 95; as Trump impeachment charge, 4, 44, 104, 109, 116n102, 117n105, 117n113 Access Hollywood (TV show), 72–73 Ackerman, Bruce, 113n59 Adams, Henry, 61 Adams, John: Alien and Sedition Acts under, 211; calls for impeachment of, 90; Constitutional Convention not attended by, 33; Jefferson, correspondence with, 33, 34; on monarchical cast of presidency, 9; political parties and presidential election of, 179, 181, 208; presidential behavior, views on, 52; in Quasi-­War with France, 13; on removal power, 33; as republican, 208; as vice president, 178, 181, 182, 183, 194 Adams, John Quincy, 35, 53, 55, 68n16, 90, 181, 182, 196n26, 211 advice and consent role of Senate, 24, 31–32 Affordable Care Act (ACA), Trump’s efforts to dismantle, 15–16 Afghanistan War, 157–58, 169 African Americans. See race/racism Agnew, Spiro T., 30, 188–89, 191, 192 Agriculture, Department of, creation, 218 Albert, Carl, 30, 192 Alexander the Great, 203 Alien and Sedition Acts, 211 Alsop, Joseph, 139 Amash, Justin, 116n102 Amazon, 164, 165 amendment process (Article V), 11, 28–30, 47n3. See also specific amendments American Enterprise Institute, 148 Anti-­federalists, 9, 87

Appelbaum, Yoni, 87, 92–93, 103 approval ratings, 55, 65, 68n18, 76–78, 76f, 77f, 82, 98, 103 Arab Spring, 149 armed forces. See military Army Appropriation Act, 4 Arthur, Chester A., 62, 101, 182, 184 Article II of Constitution: as floor versus ceiling of presidential power, 17; informal amendments to, 12; interpretive possibilities of, 18–19; living constitutionality and, 23; Madison and, 7; monarchical cast of original presidency in, 9; on presidential disability, 46, 99–100, 113–14n69; scope of executive power and, 201, 208; on vice presidency, 113n69, 177–78, 184 Article V of Constitution, 11, 28–30, 47n3 Articles of Confederation, 7, 8, 86 Art of the Deal, The (Trump), 73 assassinations, presidential, 38, 41, 57, 60, 91, 99, 114n78, 140, 184–85, 189, 216, 218. See also Garfield, James; Kennedy, John F.; Lincoln, Abraham; McKinley, William Atlantic, 87, 103 Avant, Deborah, 172n20 Baker, Howard, 142 balance of power. See checks and balances Balkans War, 150 Bank of the United States, 3, 34–35, 54, 182, 211 Bannon, Steve, 54, 146 Barkley, Alben, 185, 186, 194 Barr, William, 104, 127 Bay of Pigs invasion, 93–94 Beard, Charles and Mary, 120 Beck, Glenn, 63 Berlin Wall, fall of, 125, 126, 142

229

230 Index Bernstein, Carl, 42 Berra, Yogi, 175 Biddle, Nicholas, 35 Biden, Hunter, 105, 107, 108 Biden, Joseph: McChrystal staff on, 157; Trump pressing Ukraine investigation of, 105, 107, 108; Trump’s personal attacks on, 63; as vice president, 45, 157, 194 Bill of Rights, 19, 29, 181 Bingham, John, 92 Black, Charles, 99, 110 Black Americans. See race/racism Blum, John Morton, 61 Bobbitt, Phillip, 109 Boot, Max, 103 Booth, John Wilkes, 56 Boskin, Michael, 127 Bradlee, Ben, 139 Breckinridge, John, 182 Brexit, 146, 148, 150 Breyer, Stephen, 130, 131 bribery or treason, impeachment for, 4, 88–89, 108 Brock, W. R., 92 Brownell, Roy E., II, 175 Brownlow, Louis D., and Brownlow Committee, 39–40 Bryan, William Jennings, 38, 59, 185, 197n29 Brzezinski, Mika, 63, 64, 70n45 Buchanan, James, 36, 70n43 bully pulpit. See rhetorical presidency Burbage, Richard, 30 Bureau of the Budget, 40 Burger, Warren, 130 Burisma Holdings, 105 Burr, Aaron, 29, 178, 179, 181, 197n29 Bush, George H. W.: assassination attempt on Reagan and, 114n78; civil-­military relationship and, 161; polarization/partisanship and, 74, 75, 76f; postwar return to normalcy and, 125–28, 134n15; as vice president, 114n78, 193–94 Bush, George W.: aggressive exercise of administrative power by, 6, 200, 201, 223; approval ratings, 76f, 77f; bailout of automotive industry by, 15; civil-­ military relations and, 165; inspiration from predecessors, 202; lack of support for Trump, 74; September 11, 2001, and

postwar return to normalcy, 76, 120, 135n44; term limits on, 30; on Trump’s inaugural speech, 73; Twenty-­fifth Amendment invoked by, 100; vice presidency under, 194; war-­footing of America since 9/11 and, 132; Washington experience, lack of, 44 Byrd, Robert, 98 Calhoun, John C., 181, 182, 184, 196n26, 213 Cambodia, Nixon’s bombing of, 43, 95 campaigns, presidential: active campaigning by candidates, beginning of, 38; William Jennings Bryan, influence of, 38, 59; Founders’ views on, 52; of Andrew Jackson, 55–56; of Nixon, 93, 139; nominating process and McGovern-­Fraser Commission, 40–42; primaries, use of, 41–42; of Trump, 72–73, 103, 115n91, 144–45, 222; vice-­presidential selection process and debate, 194; Woodrow Wilson and post-­ WWI return to normalcy, 123–24 Card, Andrew, 67n3 Cardozo, Benjamin, 128 Carter, Ash, 163, 164 Carter, Jimmy: approval ratings, 76f; communication problems of, 141–42; Reagan defining himself against, 71n53, 141–42; vice presidency under, 5–6, 44–45, 46, 192–94, 195; Washington experience, lack of, 44–45 Catherine the Great (tsar), 203 Cato (Anti-­federalist), 87 CBS News, 102 censures, presidential, 23, 97, 113n58 Center for American Progress, 148 Central Intelligence Agency (CIA), 42–43, 93–94, 95, 189 checks and balances: American preference for, 132–33; Congress and constitutional presidency, as counterweights, 8, 23–24; Founders’ use of, 150; political parties weakening, 20–21. See also postwar return to normalcy Cheney, Richard, 45, 126, 127, 194 Chevron deference, 15 Chicago Tribune, 214 Churchill, Winston, 138 “Churchill Parallel” memo (1991), 128

Index 231 Cincinnatus, 118 civil-­military problematique, 159 civil-­military relations, 5, 154–71; aggrievement, military sense of, 167–69; all-­volunteer military, 168, 169, 171n6; between citizens and soldiers, 156–57, 166–71, 171n6; civic virtue and, 167, 168; civilian interests, predominance of, 155, 156, 157, 158, 167, 170; Congress and, 10, 160, 168, 172n24, 172n32; coup, low likelihood of, 5, 157, 158, 171n8; Dover Air Force Base, “dignified transfer” at, 154– 55, 168, 170; between entrepreneurs and acquisitions officers, 156, 162–66, 170, 173n42; evolving nature of, 157; increasing complexity of military affairs, 155, 161; increasingly civilian nature of presidency and, 155; military experience/ expertise of presidents, 154, 155, 170, 172n32; monitoring of military activity, 162; National Security Strategies, U.S., changes in, 161, 164–65, 172n26; political orientation of military and, 166–67, 173–74n62; between presidents and generals, 156, 157–62, 170; trends and tensions in, 154–55, 170–71; urban-­to-­rural shift in military makeup, 166. See also commander-­in-­chief, president as Civil Service Commission, 40 Civil War, U.S.: Andrew Johnson and postwar return to normalcy, 121–23; Lincoln’s presidential prerogative during, 36–38, 120, 121; Lincoln’s presidential refounding and, 213–19; midterms following, 129 Clay, Henry, 35, 54, 211 Cleveland, Grover, 61, 134n24 Clinton, Bill: aggressive exercise of administrative power by, 223; approval ratings, 76–77, 76f, 77f, 97, 98; impeachment of, 4, 43, 96–98, 103, 129–32, 135n46; midterm elections (1994, 1998), 96, 97, 98, 129; polarization and partisanship in 1992 election of, 75t; post-­Gulf/Cold War return to normalcy and, 128–32, 135n46; postwar return to normalcy and, 5; term limits on, 30; Washington experience, lack of, 44; Whitewater investigation, 96, 135n46; womanizing of, 43, 96–97, 129–32

Clinton, George, 181, 182, 197n28 Clinton, Hillary, 63, 73–75, 75t, 96, 104, 143, 144, 200 Clinton v. Jones (1997), 5, 113n55, 129–32 CNN, 140 Cohen, Michael, 103 Cold War, 125–32, 161, 187, 189, 222, 223 Colfax, Schuyler, 197n29 Collins, Doug, 107 Collins, Susan, 79, 98 Comey, James, 102–3 commander-­in-­chief, president as: accretion of powers over time, 12–13; civil-­ military relations between presidents and generals, 156, 157–62, 170; Constitutional limitations on, 10; Washington’s resignation of commission (1783), 118–19 Commerce Clause, 14, 23, 210 Committee of Eleven, 176, 177 Commonwealth Club address (FDR), 219, 220, 222 communication, presidential, 5, 137–50; Carter’s problems with, 141–42; demagogues and demagoguery, 5, 137–39, 141, 143–47, 150; historical development of, 137–41, 187; of JFK, 139–40, 142; of Lincoln, 147; priest/prophet model of, 146–47; of Reagan, 140–42; of FDR, 138–39, 140, 141, 204; of symbolic aspects of presidency, 140–44; ten lessons of, 141–42; Trump’s overall effect on, 83, 144–45, 150, 204; Trump’s rhetoric, European populism and Euroskepticism compared to, 145–50; Trump’s success at, explaining, 144–47; Trump’s use of Twitter and other social media, 63–64, 132, 143–44, 150, 204; of George Washington, 146; of Woodrow Wilson, 137, 138. See also rhetorical presidency Compromise of 1877, 218–19 Congress: bureaucracy, need to increase, 24; civil-­military relations and, 10, 160, 168, 172n24, 172n32; constitutional matters, willingness to express views on, 23; constitutional presidency, as counterweight to, 8, 23–24; contempt of, in impeachment efforts against Nixon, 43; delegations of power by, 15–16, 24; DW-­NOMINATE scores (1973–2016),

232 Index Congress (continued) 80–81, 81f; funding of presidential offices and departments by, 21–22; information, power to secure, 110, 117n116; Andrew Johnson charged with disrespect of, 122– 23; legislative powers reserved for, 10, 15; under Lincoln, 218; Neutrality Proclamation and, 200–201; partisan support of president by, 78–82, 79f–81f, 82t; party unity scores (1973–2016), 79–80, 80f; power of the purse, 110; power to constrain presidential behavior apart from impeachment, 109–10; removal power, First Congress on, 32–33; restraints on presidential power, 10–11; in Twenty-­ fifth Amendment, 100; unity of executive branch versus, 18; vice presidential replacement, role in choice of, 191; war powers act proposal, 23–24; wars, presidential authority to start, 12–13. See also impeachment; postwar return to normalcy; Senate; specific committees congressional-­executive agreement, 14 Congressional Quarterly (CQ), 78, 80, 127 “conservative revolutionary,” concept of, 204, 206, 217 Constitution, French, 133n9 Constitution, U.S.: amendment process (Article V), 11, 28–30, 47n3; congressional willingness to address matters of import to, 23; Declaration of Independence compared, 9; informal presidential amendments to, 12, 16–17 (see also extraconstitutional landmarks); Lincoln’s call for joining principles of Declaration of Independence with, 204, 213–14, 218; “living Constitution,” concept of, 12, 22, 23, 204; popular will and demagoguery, checks on, 137–38, 150; Preamble, ambition stated in, 201; presidential oath to, 11, 30, 31; small-­c versus Capital-­C constitution, 2–3, 30, 31, 34, 38, 39, 40, 43, 45, 46, 155, 167; Washington’s presidency and, 206. See also Article II; specific amendments and clauses Constitutional Convention (1787): amendment process set by, 28–29; constitutional presidency, establishment of, 1–2, 7–8, 18; on impeachment, 4, 86–90, 109;

Jefferson not attending, 33; presidential refoundings and, 6; on vice presidency, 44, 46 constitutional dictatorships, in wartime, 120, 133, 134n15, 216 Constitutional Government in the United States (Woodrow Wilson), 62 constitutional presidency, 1–6, 7–24; accretion of powers over time, 12–17, 22, 108–9, 222–24 (see also postwar return to normalcy); Congress, as counterweight to, 8, 23–24; congressional funding of offices and departments, 20–21; fixes for “bug” of living presidency, 23–24; Founders’ vision of, 138–38, 150; immediate predecessor, new presidents defining presidencies in opposition to, 71n53; informal amendments to, 12, 16–17 (see also extraconstitutional landmarks); interpretive possibilities of Article II and, 18–19 (see also Article II); judicial review of executive action, limits of, 19; “living presidency,” concept of, 1–2, 7, 22–23; monarchical cast of original presidency, 8–9, 11–12, 18; political parties affecting, 20–21; popular mandate and, 19–20 (see also popular mandate); presidential greatness polls, 69–70n42; reform-­minded presidents, fate of, 24; restraints on, 9–11; types or phases of, 137; unity of executive branch, consequences of, 17–18. See also civil-­military relations; communication and the personal presidency; impeachment; polarization and partisanship; refoundings, presidential; (un)presidential behavior; vice presidency constitutions, state, 8, 19, 47n3 Coolidge, Calvin, 185–86 Coons, Chris, 154 coronavirus. See COVID-­19 pandemic Coughlin, Charles, 138–39 coups: civil-­military relations and, 5, 157, 158, 171n8; presidential disability and, 101, 102, 114n78 COVID-­19 pandemic, 66, 132, 144 Craig, Mae, 139–40 Creek Indians, treaty with, 31 Criminal Division, Justice Department, 42

Index 233 Crowdstrike, 105 C-­Span, 70n42, 140 Curtis, Charles, 186, 197n51 Dallas, George, 197n29 Daniels, Stormy, 63, 65 Darman, Dick, 114n78 Davie, William, 111n12 Davis, Jefferson, 57, 58, 225n33 Dawes, Charles G., 186 Dean, John, 42, 94, 113n49 Deaver, Michael, 141, 142 Declaration of Independence: Constitutional Convention, debate over presidency at, 86–87; Constitution compared, 9; Lincoln’s call for joining principles of Constitution with, 204, 213–14, 218; presidential refoundings and, 6, 204, 208, 213–14, 218, 220, 221 Defense Department: civilian entrepreneurs and, 163, 164; competing/joint interests within, 172n24; post-­Cold War defense budget under George H. W. Bush, 125–28; Trump impeachment and, 107 delegations of power: in civil-­military relations, 159; by Congress, 15–16, 24 Dellinger, Walter, 131 demagogues and demagoguery: Founders’ fear of, 137–38, 143, 150; presidential communication and, 5, 137–39, 141, 143–47, 150; presidential refounding versus, 204, 206; of Trump, 143–47; (un)presidential behavior and, 58, 59, 63, 70n51 Democratic Party: Bryan’s “Cross of Gold” speech at 1896 convention, 59; Hillary Clinton, unpopularity of, 74; founding of, 210, 212; Jackson and, 55, 211; Lincoln/Johnson Republican ticket and, 56; nominating controversy at 1968 Convention, 40–41; opposing emancipation after Civil War, 217; origins in Democratic-­Republican Party, 207–8; presidential vote choice by party affiliation (1980–2016), 75t; FDR/New Deal and, 220–21; Trump impeachment and, 102, 103–4, 105 Democratic-­Republican Party, 34, 35, 179, 207–8, 209, 210, 211

departments. See executive offices and departments; specific departments Dershowitz, Alan, 109, 117n113 DeWees, Bradley R., 5, 154, 227 Dickinson, John, 46, 99–100 “dignified transfer” at Dover Air Force Base, 154–55, 168, 170 disability, presidential: Article II on, 46, 99–100, 113–14n69; coups, fear of, 101, 102, 114n78; of Eisenhower, 100–101, 189–90; issues of, before Twenty-­fifth Amendment, 46, 100–101, 113n67, 184, 185, 189–90; problem of president’s inability to recognize, 100–101; Trump suspected of, 101–2, 114n82; Twenty-­fifth Amendment on, 2, 29, 30, 46, 87, 99–102, 113–14n69, 114n78, 190–92; of Woodrow Wilson, 46, 101, 124, 138, 185, 187 disruption. See refoundings, presidential Donaldson, Sam, 141 Donovan, Robert, 124 Douglas, Stephen A., 36, 57 Douglass, Frederick, 91, 225n33 Douthat, Ross, 101 Dover Air Force Base, “dignified transfer” at, 154–55, 168, 170 DW-­NOMINATE scores (1973–2016), 80–81, 81f economy and Trump’s rise to power, 147–48 Ehrlichman, John, 94, 113n50 Eisenhower, Dwight D.: approval ratings, 76f; civil-­military relations and, 165; number of Americans with TV set at election of, 139; presidential disability of, 100–101, 189–90; term limits on, 30; vice presidency under, 100–101, 187–88, 192 election campaigns. See campaigns, presidential elective monarchies, 9 electoral college: popular mandate versus, 19–20, 137, 143; Twelfth Amendment (separate vote for vice-­president), 2, 29; vice presidency as means of shoring up, 46, 176–78 Ellis, Richard J., 3, 49, 227 Ellsberg, Daniel, 43, 94 Emancipation Proclamation (1863), 37, 120, 204, 214, 216–17, 225n33

234 Index emoluments clauses, 102, 115n85 English Bill of Rights, 10, 19 Erdogan, Recep Tayyip, 146 Ervin, Sam, and Ervin committee, 42, 113n53, 114n69 Europe, populist movements in, 145–48 Euroskepticism, 147–50 Executive Office of the President (EOP): accretion of presidential power and, 21–22; FDR’s establishment of, 39–40, 222 executive offices and departments: advice and consent role of Senate and, 24; congressional approval required for, 10–11; congressional funding of, 21–22; removal power, 32–33; significance of, 21; Tenure of Office Act, 4, 33, 92, 122; in Twenty-­ fifth Amendment, 100. See also specific departments Executive Order 8248, 40 executive privilege, 95, 110 Executive Reorganization Act (1939), 222 extraconstitutional landmarks, 2–3, 28–46; as accretion of presidential power, 12, 16–17; amendment process (Article V) versus, 11, 28–30; Framers’ intentions and, 45–46; “high crimes and misdemeanors,” impeachment for, 42–43; historical/practical establishment of, 16–17; inauguration of George Washington, 30–32; legal versus political offense, impeachment viewed as, 43–44; McGovern-­Fraser Commission and reformed nominating process, 40–42; presidential prerogative, Lincoln establishing, 36–38; removal power set by First Congress, 32–33; rhetorical presidency, Theodore Roosevelt’s use of, 3, 38–39; small-­c versus Capital-­C constitution, 2–3, 30, 31, 34, 38, 39, 40, 43, 45, 46, 155, 167; two-­term tradition set by Jefferson, 33–34; veto, Andrew Jackson’s use of, 34–36; “White House vice presidency,” Carter/Mondale and creation of, 44–45, 46 Fairbanks, Charles, 186 Farage, Nigel, 150 Farewell Address (George Washington), 207

Feaver, Peter, 172n20 Federal Bureau of Investigation (FBI), 42–43, 93–94, 95, 102–3 Federalist Papers, 200–201; No. 1, 151n4; No. 10, 153n40; No .37, 111n3; No. 51, 27n46, 152n39; No. 65, 43, 48n34, 87, 89; No. 68, 177, 183, 195n6, 196n14, 197n34; No. 69, 25n13; No. 70, 26n36, 111n4; No. 71, 224n8; No. 72, 224n6; No. 77, 33, 47n13 Federalist Party, 34, 35, 52, 179–80, 208, 209, 210 Fessenden, William, 92 Fielding, Lewis, 43 Fifteenth Amendment, 47n5, 218–19 Fillmore, Millard, 184 fireside chats of FDR, 138, 204 “first one hundred days,” 39 First World War. See World War I Fiske, Robert, 96 FiveThirtyEight, 68n18, 172n32 Ford, Gerald R., 30, 76f, 89–90, 188–89, 191–93 foreign affairs: accretion of presidential power regarding, 13–14; Four Freedoms speech (FDR) and, 222; polarization and partisanship in, 77; Treaty Clause, 10, 13–14; Trump’s personal attacks on foreign leaders, 63. See also State Department; specific countries Four Freedoms speech (FDR), 221 Fourteenth Amendment, 218–19 Fox News, 67n3 France: Constitution, on emergency powers, 133n9; Neutrality Proclamation and, 200–201, 206, 207; Quasi-­War with, 13 Frankfort Commonwealth, 37 Frankfurter, Felix, 204 Fraser, Donald, 41 Frederick the Great (Holy Roman Emperor), 203 freedom. See liberty Freeman, Joanne, 31 Friedman, Uri, 146 Gallup Polls, 97, 98 Garfield, James A., 46, 99, 101, 182, 184, 185, 195 Garner, John Nance, 44, 186, 197n51 “garrison United States,” 164–65

Index 235 Georgakis Abbott, Stefanie, 5, 137, 227 George III (king of England), 9, 118, 206 George Washington: The Making of an American Symbol (Schwarz), 118–19 Gerras, Stephen, 167 Gerry, Ellbridge, 181, 182, 184, 197n28 Gettysburg Address, 38, 213–14, 217 Gingrich, Newt, 97 Giuliani, Rudy, 106 global capitalism and neoliberalism, disappointments of, 147–48 Goldstein, Joel K., 5–6, 175, 227–28 Goldwater, Barry, 140 Goodwin, Doris Kearns, 216 Google, 163, 164–65, 173n44 Gorbachev, Mikhail, 142 Gore, Al, 45, 194 Graham, Lindsey, 102, 172 Grant, Ulysses S., 57, 58, 91–92, 112n41, 182, 198n59 Great Depression, 39, 138–39, 186–87, 219, 220 greatness, democratic fear of, 200–204 Great Recession, 15, 202 Great Society, 205 Greenwood, Lee, 49 Gulf of Tonkin resolution (1964), 95 Gulf War, 127–28 habeas corpus, Lincoln’s suspension of, 203, 214–15 Haig, Al, 114n78 Haldeman, H. R., 93–94 Halliburton, 194 Hamilton, Alexander: John Quincy Adams and, 211; commander-­in-­chief, on limitations on presidential power as, 10; on demagoguery, 138, 204; on ill-­executed government, 86; on impeachment/ impeachable offenses, 43, 87, 89, 99; improper speculation charges against, 89; Jefferson and, 207; on Neutrality Proclamation, 206; on removal power, 33; on scope of executive power, 200– 201, 202, 206, 208; on unity of executive branch, 17; on vice presidency, 176–78, 180, 183. See also Federalist Papers Hamlin, Hannibal, 197n29 Hanna, Mark, 60

Hardball (TV show), 72 Harding, Warren G., 99, 121, 124, 185–86, 187 Harrison, Benjamin, 58–59 Harrison, William Henry, 90, 183, 194 Hayden, Michael, 150 Hayes, Rutherford B., 59, 182 health care: ACA (Affordable Care Act), Trump’s efforts to dismantle, 15–16; Clinton’s efforts to change federal policy, 128–29; Truman’s 1946 failure to nationalize, 129 Heclo, Hugh, 223 Hendricks, Thomas, 184, 197n28 Henry, Patrick, 9 Hepburn Act, 38–39, 62 Hibbing, John R., 145 Higgs, Robert, 134n16 “high crimes and misdemeanors,” impeachment for, 4, 28, 42–43, 87, 89–90, 95, 99, 108 Hinckley, Barbara, 140 Hobart, Garret A., 182, 184, 197n28 Hodges, Albert G., 37, 215 Hollywood and the presidency, 139, 140, 142, 143 Homestead Act, 218 Hone, Philip, 55 Hooker, Richard, 111n6 Hoover, Herbert, 186, 188, 219, 221 House Intelligence Committee, and Trump impeachment, 106 House Judiciary Committee: in Clinton impeachment, 97, 98; Trump impeachment and, 103; Watergate and impeachment efforts against Nixon, 42, 43, 98, 103 Howe, Daniel Walker, 214 Humphrey, Hubert H., 40–42, 45, 188, 189, 192, 193 Hungary, populism in, 146 Huntington, Samuel, 159–60, 172n20 Hurricane Maria, 144 Hussein, Saddam, 127 impeachment, 4, 86–110; John Adams, calls for impeachment of, 90; censure versus, 23; of Bill Clinton, 4, 43, 96–98, 103, 129–32, 135n46; collective action disadvantage of Congress in, 18; congressional

236 Index impeachment (continued) power to constrain presidential behavior apart from, 109–10; Constitutional Convention (1787) on, 4, 86–90, 109; expansion of presidential powers and, 109–10; for “high crimes and misdemeanors,” 4, 28, 42–43, 87, 89–90, 95, 99, 108; Jefferson, failed impeachment vote against, 90, 112n26; of Andrew Johnson, 4, 38, 43, 58, 59, 65, 91–93, 112n41, 122–23; limited use of, in American history, 87; Nixon’s voluntary retirement in lieu of, 4, 42–43, 87, 93–96, 103, 191–92; polarization/partisanship and, 43–44, 88, 98, 108–9, 116n102; as political versus legal/ judicial process, 43–44, 87, 89–90, 92–93, 98–99, 109; in practice, 90–99; public opinion and, 97, 98, 103, 108–9; removal from office by means other than, 99–102; removal from office subsequent to, 65, 88, 90, 98, 112n41; term lengths and, 88; for treason or bribery, 4, 88–89, 108; Trump’s first impeachment, 4, 43–44, 87, 102–10, 116n102; Trump’s second impeachment, 110–11; John Tyler, defeat of impeachment resolution against, 90, 91; validity in later Congress when voted on by previous Congress, 113n59; George Washington, calls for impeachment of, 90 Impoundment Control Act, 107 inaugurations: of William Henry Harrison, 99; of Andrew Jackson, 53, 67n12; Jefferson, first inaugural address of, 202; Jefferson’s second inaugural address on Louisiana Purchase, 208–9; of Trump, 73; Twentieth Amendment on, 2, 29–30; of George Washington, 30–32 Independent Counsel Act, 96 Internal Revenue Service (IRS), 42, 43, 94, 95 Iran-­contra, 223 Iraq War, 157, 169 Iredell, James, 89 Irving, Washington, 68n20 Italy, populism in, 146 Jackson, Andrew: approval ratings, 65; censure of, 23; impeachment of, 4; inauguration of, 53, 67n12; Jefferson compared,

209, 210–12; Lincoln compared, 213, 214; Nullification Crisis and, 56, 68n16, 182, 211, 212, 213; as “Old Hickory,” 54; political and personal bearing and behavior of, 55–56, 68n20; popular mandate, claiming, 20, 54, 55; in presidential greatness polls, 69–70n42; presidential refounding under, 6, 202, 203, 204, 205, 210–12; proslavery and Native American policies, 70n42, 202, 210, 213; Theodore Roosevelt compared, 60, 61, 63; Trump and, 54–55, 63, 64, 65, 202; unpresidential behavior, accused of, 3, 50–51, 53–56, 63; on vetos, 2–3, 34–36, 54, 211; vice presidency and, 181, 182, 196n26; George Washington compared, 55, 210 Janowitz, Morris, 172n20 Japan and Russia, Theodore Roosevelt brokering peace between, 61 Japanese Americans, FDR’s internment of, 203 Jay Treaty (1795), 90 Jefferson, Thomas: Adams, correspondence with, 33, 34; Constitutional Convention not attended by, 33; Declaration of Independence, as author of, 208, 214; as democrat, 208; failed impeachment vote against, 90, 112n26; first inaugural address of, 202; Hamilton and, 207; on impeachment process, 108; Andrew Jackson compared, 210–11; Kentucky Resolutions and, 211; Lincoln compared, 209, 213, 214; Louisiana Purchase and, 208–9, 211; on monarchical powers of constitutional presidency, 9, 11–12, 25n5; on Neutrality Proclamation, 201–2, 206, 207; political parties and presidential election of, 179–82; presidential refounding under, 6, 203, 204, 205, 207–9; rhetorical presidency, use of, 209; FDR compared, 220; on scope of executive power, 200, 201–2, 207; second inaugural address of, 208–9; Tocqueville on, 202; Twelfth Amendment and, 29; two-­term tradition set by, 33–34; unpresidential behavior, accused of, 3, 50, 52, 208; as vice president, 178, 181; Washington and Lincoln compared, 209; Washington’s resignation of commission as commander-­in-­chief (1783) and, 119

Index 237 Jim Crow, 205, 218–19 Johnson, Andrew: African Americans, animus against, 56, 57, 91, 218–19; impeachment of, 4, 38, 43, 58, 59, 65, 91–93, 112n41, 122–23; Lincoln’s presidential refounding limited by, 218–19; as Lincoln’s vice president, 56, 65, 91, 184; post–Civil War return to normalcy and, 121–23; in presidential greatness polls, 70n42; Theodore Roosevelt compared, 61, 62, 63; speaking tour of, 38, 56–58, 132; statutory efforts to constrain, 110; Tenure of Office Act and, 4, 33; Trump and, 64, 65, 66; unpresidential behavior of, 3, 50–51, 56–59 Johnson, Lyndon B., 40, 41, 76f, 188, 189, 192, 223 Johnson, Richard Mentor, 197n29 Jones, Paula Corbin, 96–97, 129–32, 135n46 judiciary: executive action, limits of judicial review of, 19; presidents required to honor judgments of, 11. See also Supreme Court, U.S. Julius Caesar, 203, 223 Justice Department: Criminal Division, Watergate, and Nixon impeachment efforts, 42; Office of Legal Council, 17, 21; regulations preventing criminal indictment against president, 104, 109; on vice presidency, 188 Kaltwasser, Cristobal, 145 Kelly, John, 167–69 Kennedy, Caroline, 140 Kennedy, David, 221 Kennedy, Edward (Ted), 94 Kennedy, Jackie, 140 Kennedy, John, Jr., 140 Kennedy, John F. ( JFK): approval ratings, 76f; assassination of, 99, 140, 189; communication style and ability, 139–40, 142; primary strategy used by, 41; Profiles in Courage, 92; vice presidency under, 188 Kennedy, Joseph, 139, 140 Kennedy, Pat, 140 Kennedy, Robert F., 40–41 Kentucky Resolutions, 211 Kim Jong-­un, 63 King, Angus, 79 King, William R., 184, 197n28

Klein, Ezra, 87 Kleindienst, Richard, 109 Knut Rockne: All American (film), 142 Korean War, 12–13, 109 Krock, Arthur, 125, 139 Kushner, Jared, 103 Kuwait, invasion of, and Gulf War, 127–28 land grant colleges, 218 Landon, Alf, 221 Lane, Charles, 63 Langston, Thomas S., 146 Lasswell, Harold, 164 Lawford, Peter, 140 Lawless, Jennifer L., 3, 72, 228 Lawrence, Bill, 139 League of Nations, 62, 124 leaks and leaking, 94, 97, 141, 142 “Leave” campaign, Brexit vote, 146, 148 Lee, Mike, 81 legislative powers: accretion of presidential powers regarding, 14–16; reserved for Congress, 10 (see also Congress); vice presidency’s early association with legislative branch, 178–79, 188 Lemon, Don, 63 Le Pen, Marine, 148 Lewinsky, Monica, 43, 96–97, 125, 129, 131–32, 135n46 liberty: Constitution, Lincoln’s call for joining principles of Declaration of Independence with, 204, 213–14, 218; in Declaration of Independence, 6, 9, 86–87, 204, 208, 213–14, 218, 220, 221; FDR’s Four Freedoms speech, 221, 222 Life magazine, 139 Lincoln (film), 216 Lincoln, Abraham: assassination of, 56, 57, 91, 99, 184, 216, 218; communication style and ability of, 147; on emancipation after Civil War, 217–18, 225n33; Emancipation Proclamation (1863), 37, 120, 204, 214, 216–17; Gettysburg Address, 38, 213–14, 217; habeas corpus, suspension of, 203, 214–15; Andrew Jackson compared, 213, 214; Jefferson compared, 209, 213; Andrew Johnson as vice president of, 56, 65, 91, 218; military tribunals established by, 203, 215; as paradigm of presidency, 17;

238 Index Lincoln, Abraham (continued) postwar return to normalcy and, 123; in presidential greatness polls, 70n42; presidential prerogative in Civil War exercised by, 36–38, 120, 121; presidential refounding under, 6, 202, 203, 204, 205, 213–19; on presidential vetos, 218, 225n36; successors seeking inspiration from, 202; Thirteenth Amendment and, 217–18; Trump on, 49, 66; unpresidential behavior, accused of, 3, 50; Wade-­Davis Bill, pocket veto of, 121–22, 217 “living Constitution,” concept of, 12, 22, 23, 204 “living presidency,” concept of, 1–2, 7, 22–23 Locke, John, 37 London Morning Post, 61 Long, Huey, 138 Lott, Trent, 98 Louisiana Purchase, 208–9, 211 Lowi, Theodore, 137 Lowry, Rich, 63 Maclay, William, 52 Madison, James: on balance of powers, 20; on broad reading of executive powers, 11; Clinton as vice president under, 181, 182; at Constitutional Convention, 7, 8; Democratic-­Republican Party and, 211; on impeachment, 86, 89; as president in War of 1812, 209, 210; on removal power, 32–33; on scope of executive power, 200–201, 203, 207; on state executives, 8; on vice presidency, 176; on George Washington, 206. See also Federalist Papers “Make America Great Again” (MAGA) slogan, 64, 148 Mandate for Change (McGovern-­Fraser Commission, 1971), 41 Manhattan Project, 187 Manigault Newman, Omarosa, 63 Maples, Marla, 72 Marshall, Thomas R., 44, 101, 185, 186, 197n51 Martin, Joseph, 125 Martin, Luther, 8 Martineau, Harriet, 68n20 Mason, George, 8, 9, 86, 87, 88, 89, 90

Matthews, Chris, 72 Mattis, James, 163 Maysville Road, 210 McCabe, Andrew, 102 McCarthy, Eugene, 40–41 McChrystal, Stanley, 157–58 McClellan, George, 217 McConnell, Mitch, 73, 108 McCulloch v. Maryland (1819), 35 McGahn, Donald, 104 McGovern, George, 41 McKinley, William, 38, 59–60, 99, 182, 187, 198n59 McKitrick, Eric I., 121 Meacham, Jon, 65, 91 Mexico border wall, 72, 133n10, 144 Microsoft, 165 Mifflin, Thomas, 119 military: congressional regulation of army and navy, 10; Emancipation ­Proclamation allowing African Americans to join, 217; Reagan, deficit spending and defense build-­up under, 125. See also civil-­military relations; commander-­in-­chief, president as; Defense Department; postwar return to normalcy; war military tribunals established by Lincoln, 203, 215 Milkis, Sidney, 6, 200, 228 Miller Center, University of Virginia, 1, 126 Miroff, Bruce, 71n53 mixed monarchies, 9 monarchical cast of original presidency, 8–9 Mondale, Walter F., 5–6, 44–45, 46, 75t, 192–94, 195 monopsony, in military acquisitions, 163 Monroe, James, 181, 182, 211 Montesquieu, Baron de, 7, 9 Morris, Edmund, 61 Morris, Gouverneur, 7, 86, 87, 88, 176 Morton, Levi, 197n29 Moskos, Charles, 172n20 Mount Rushmore, 61 Moynihan, Daniel Patrick, 127–28 MSNBC, 72 Mudde, Cas, 145

Index 239 Mueller, Robert, and Mueller report, 102–3, 104, 115n91 Mulvaney, Mick, 106 Nadler, Jerrold, 103–4 Napoleon, 61, 211 National Archives, Nixon’s donation of vice-­ presidential papers to, 95 National Bank, 3, 34–35, 54, 182, 211 National Emergencies Act, 133n10 National Front, 148 National Republican Party. See Whigs National Security Agency (NSA), 94, 95 National Security Council, 187 National Security Strategies, U.S., changes in, 161, 164–65, 172n26 Native Americans, 70n42, 202, 210 nativism, 147, 148, 149 NATO, 130 NBC News, 64 Nelson, Michael, 1, 2–3, 28, 100, 102, 196n24, 227 neoliberalism and global capitalism, disappointments of, 147–48 Neustadt, Richard, 28 Neutrality Act (1794), 206 Neutrality Proclamation (1793), 200–201, 206, 207 “Never Trump” movement, 74 New Deal, 40, 205, 219–23 New Freedom (Woodrow Wilson), 220 New Orleans, Battle of, 210 Newsweek, 139 New York City draft riots (1863), 215 New York Times, 58, 101–2, 124, 125, 139 New York World, 60 Niger, U.S. military in, 168, 169 9/11. See September 11, 2001 Nineteenth Amendment, 47n5 Nixon, Richard: approval ratings, 76f; Cambodia, bombing of, 43, 95; election campaigns of, 93, 139, 193; impeachment, voluntary retirement in lieu of, 4, 42–43, 87, 93–96, 103, 191–92; photographers evaded by, 114n72; primary strategy used by, 41; resurgence regime and, 110, 136n51; tax evasion charges, 95; Twenty-­ fifth Amendment and, 30; U.S. v. Nixon

(1974), 95, 109; vice presidency under, 188–89, 191; as vice president, 100–101, 186, 187–88, 192, 193; Watergate, 30, 42, 93–95, 103, 110 Nixon v. Fitzgerald (1982), 130–31 Nofzinger, Lyn, 142 nominating process and McGovern-­Fraser Commission, 40–42 norms and norm violation. See Jackson, Andrew; postwar return to normalcy; Trump, Donald J.; (un)presidential behavior Nullification Crisis, 56, 68n16, 182, 211, 212, 213 Nye, Joseph S., Jr., 127 Obama, Barack: ACA, funding of, 16; aggressive exercise of administrative power by, 6, 200, 201, 223; approval ratings, 76f, 77f; civil-­military relations and, 157–58, 165; Hillary Clinton’s popularity versus, 74; congressional party unity scores under, 80f; dress code under, Card’s complaints about, 67n3; inspiration from predecessors, 202; term limits on, 30; Trump’s birtherism attacks on, 146; Ukraine and, 107; vice presidency under, 194; war-­footing of America since 9/11 and, 132; Washington experience, lack of, 45 obstruction of Congress: refusal to cooperate with House impeachment inquiry, Clinton and Nixon charged with, 95, 97; as Trump impeachment charge, 4, 44, 106, 107, 116n102, 117n105 obstruction of justice: as Nixon/Clinton/ Trump impeachment charge, 95, 97, 98, 99, 104; pardon power as means of, 99 Odell, Joseph H., 133–34n12 Office of Legal Council, Justice Department, 17, 21 Orban, Victor, 146 Owens, William “Ryan,” 154–55, 170 Panama Congress, 182 pardon power, 8, 91, 99, 207, 217 partisanship. See polarization and partisanship

240 Index Pataki, George, 74 Pelosi, Nancy, 103, 104, 106, 107, 108 Pence, Mike, 45, 60, 194 Pentagon Papers, 94 Pericles, 203 perjury: Clinton impeachment charge of, 43, 97, 98, 99, 113n57; Nixon impeachment charge of, 42; Trump accused of suborning, 103 Perry, Barbara A., 5, 137, 227 Perry, Rick, 172 personal presidency, concept of, 5, 137, 140, 144 Peter the Great (tsar), 203 Petraeus, David, 158 Pew Research Center, 64 Phillips, Wendell, 57, 58 Pierce, Franklin, 66 Pinckney, Charles Cotesworth, 34, 179, 181 Plumer, William, 52 polarization and partisanship, 3, 72–83; approval ratings and, 76–77, 76f, 77f; in Clinton impeachment charge, 97; in Congress during Trump presidency, 78–82, 79f–81f, 82t; congressional party unity scores (1973–2016), 79–80, 80f; congressional presidential support by party affiliation (1973–2016), 79f; in election results, Trump versus Hillary Clinton, 74–75, 75t; in foreign affairs, 77; impeachment process and, 43–44, 88, 98, 108–9, 116n102; overall effects of Trump presidency on, 3, 73–74, 81–83, 82t; possible courses of, 78; presidential campaign of Trump and, 72–73; presidential vote choice by party affiliation (1980–2016), 75t political parties: Founders’ views on, 52, 207, 211; increasing presidential powers, 20–21; presidential refoundings and, 204–5; spoils system and, 212; vice presidency and development of, 29, 179–82, 185; weakening interbranch competition, 20. See also specific parties Polk, James, censure of, 23 popular mandate: constitutional presidency and, 19–20; historical development of, 137–41; Jackson claiming, 20, 54, 55;

of JFK, 139–40; personal presidency and, 5, 137, 140, 144; of FDR, 138–39; Trump claiming, 55, 64–65, 68n18, 70n48, 143–50. See also demagogues and demagoguery populist movements, 145–50, 205, 210–12 postwar return to normalcy, 4–5, 118–33; as “American regicide,” 4–5, 120–21, 125; George H. W. Bush after Cold War/Gulf War and, 125–28, 134n15; George W. Bush after September 11, 2001, and, 76, 120, 135n44; Bill Clinton after Cold War/Gulf War and, 128–32, 135n46; constitutional dictatorships in wartime versus, 120, 133, 134n15; extraordinary presidential powers during war, 119–20; Andrew Johnson after Civil War, 121–23; Lincoln likely to have faced, 123; ratchet thesis and, 134n16; Harry Truman after WWII, 121, 124–25; Trump presidency and, 132–33; war-­footing of America since 9/11 and, 132; Washington’s resignation of commission as commander-­in-­chief (1783) and, 118–19, 120–21; Woodrow Wilson after WWI, 121, 123–24, 133–34n12 Powell, Jody, 141 Powell, Lewis, 130–31 power of the purse, 110 Prakash, Saikrishna Bangalore, 1–2, 7, 229 preference alignment, 160–61 prerogative, presidential, 36–38, 120, 121, 200 presidency, constitutional. See constitutional presidency presidential behavior. See (un)presidential behavior presidential campaigns. See campaigns, presidential presidential disability. See disability, presidential presidential greatness polls, 69–70n42 presidential refoundings. See refoundings, presidential Presidential Succession and Inability Clause, 183–85, 194–95 Priebus, Reince, 104 primaries, use of, 41–42 principle-­agent dilemma, 159, 160 Profiles in Courage ( John F. Kennedy), 92

Index 241 Progressive Party, 205, 219, 220 Project Maven, 163, 165, 173n44 Putin, Vladimir, 77 Quasi-­War with France, 13 Quayle, Dan, 194 Quincy, Josiah, 112n26 race/racism: armed forces, Emancipation Proclamation allowing African Americans to join, 217; Euroskepticism and, 147–50; Fifteenth Amendment, 47n5, 218–19; Fourteenth Amendment, 218–19; Jackson’s proslavery and Native American policies, 70n42, 202, 210; Jim Crow, 205, 218–19; Andrew Johnson and, 56, 57, 91, 218–19; Mexico border wall, Trump pushing for, 72, 133n10, 144; populist movements and, 145–50; Reagan and, 141; Reconstruction, 57, 91, 121–22, 217, 218–19; FDR and Democratic Party, African Americans attracted to, 221; segregation, dismantling, 205, 223. See also slaves and slavery Radical Republicans, 57, 91 Rafshoon, Gerald, 141 Randolph, Edmund, 8–9, 18 ratchet thesis, 134n16 rational actor theory, 160 Reagan, Ronald: approval ratings, 76f; assassination attempt against, 114n78; Carter, defining himself against, 71n53, 141–42; communication style and ability of, 140–42; deficit spending and defense build-­up under, 125; end of Cold War and, 223; on executive offices and departments, 21; Iran-­contra and, 223; “Make America Great Again” slogan, 64, 148; FDR compared, 140, 141; term limits on, 30; Trump compared, 143; Twenty-­ fifth Amendment invoked by, 100; vice presidency under, 193; Washington experience, lack of, 44 Reconstruction, 57, 91, 121–22, 217, 218–19 reform-­minded presidents, fate of, 24 refoundings, presidential, 6, 200–224; Americans’ 2016 choice of disruption over continuity, 150; common features

of presidential “immortals,” 202–4; “conservative revolutionary,” concept of, 204, 206, 217; defined, 204; greatness, democratic fear of, 200–204; Andrew Jackson and, 6, 202, 203, 204, 205, 210–12; Jefferson and, 6, 203, 204, 205, 207–9; leadership and disruption, connections between, 50; Lincoln and, 6, 202, 203, 204, 205, 213–19; political parties and, 204–5, 222; FDR and, 6, 202, 203, 204, 205, 219–23; scope of executive power and, 200–202, 205; Washington and, 202, 203, 204, 205–7 Rehnquist, William, 131 removal from office: by death, 99; impeachment, subsequent to, 65, 88, 90, 98, 112n41; presidential removal power, 32–33; Tenure of Office Act and, 4, 33, 92, 122; Twenty-­fifth Amendment, 2, 29, 30, 46, 87, 99–102 Reno, Janet, 135n46 Republican Party: civil-­military relations and, 167, 172n32; emancipation after Civil War and, 217; Lincoln and formation of, 36, 216, 217, 218; Lincoln/Johnson ticket and, 56, 65, 91; midterm elections of 1994/1998 and Clinton impeachment, 96, 97, 98; in New Deal era, 221; origins in Democratic-­Republican Party, 207–8; presidential vote choice by party affiliation (1980–2016), 75t; Trump and, 55, 65, 70n48, 74–77, 75t, 76f, 77f, 107, 108; Woodrow Wilson and post-­W WI return to normalcy, 123 resurgence regime, 110, 136n51 Revolutionary War, 8, 119, 168, 206 “Revolution of 1800,” 207–9 rhetorical presidency: Jefferson’s use of, 209; Andrew Johnson’s speaking tour, 38, 56–58, 132; Theodore Roosevelt’s use of, 3, 38–39, 60, 62, 204; Trump’s use of, 132, 146; of Woodrow Wilson, 137, 138, 150 Ridge, Tom, 74 Ridings-­McIver presidential greatness poll (1996), 70n42 Riley, Russell L., 4–5, 118, 228 Robinson, Charles D., 225n33 Rockefeller, Nelson A., 189, 192

242 Index Rolling Stone, 157 Romney, Mitt, 74, 117n105 Roosevelt, Alice, 60 Roosevelt, Franklin Delano (FDR): Commonwealth Club address, 219, 220, 221; communication style and ability of, 138–39, 140, 141, 204; death in office, 99, 187; EOP (Executive Office of the President), establishment of, 39–40, 222; Four Freedoms speech, 221, 222; in Great Depression, 39, 138–39, 219, 220; Japanese Americans, internment of, 203; Jefferson compared, 220; on living Constitution, 23; New Deal, 40, 205, 219–23; poor health in last term, 99, 113n67; in presidential greatness polls, 70n42; presidential refounding under, 6, 202, 203, 204, 205, 219–23; Reagan compared, 140, 141; Theodore Roo­se­ velt and, 204, 220; successors seeking inspiration from, 202; Supreme Court, attempt to pack, 40, 203; Treaty Clause marginalized by, 13–14; Twenty-­second Amendment and term limits, 2, 34, 46, 189; on vice presidency, 185; vice presidents under, 44, 187, 197n51; in WWII, 99, 120, 138–39 Roosevelt, Theodore: approval ratings, 65; on executive power, 205; on Hepburn Act, 38–39, 62; nonsequential third-­term campaign of, 198n59; in presidential greatness polls, 69–70n42; as Progressive, 205, 219; rhetorical presidency, use of, 3, 38–39, 60, 62, 204; FDR and, 204, 220; Trump and, 60, 64, 65; unpresidential behavior, accused of, 3, 50, 51, 60–63; vice presidency under, 186; as vice president, 185, 186 Rosenstein, Rod, 102 Ross, Donald, 131 Ross, Edward, 92 Rossiter, Clinton, 120, 133, 216 Rudalevige, Andrew, 4, 86, 136n51, 228 “rugged individualism,” 219, 221 Russia: polarization and partisanship over views of, 77; Theodore Roosevelt brokering peace between Japan and, 61; Trump and, 77, 102–5, 115n91 Ryan, Paul, 73

Salinger, Pierre, 140 Sanders, Bernie, 74, 78, 150 Sasser, James, 127 “Saturday Night Massacre,” 95 Scalia, Antonin, 130 Schiff, Adam, 106 Schlesinger, Arthur, Jr., 132, 209 Schlesinger, Arthur M., 69–70n42 Schurz, Carl, 218 Schwartz, Barry, 118–19 secession, right of, 36 Second Treatise of Government (Locke), 37 Second World War. See World War II segregation, dismantling of, 205, 223 Selective Service Act, 171n6 Senate: advice and consent role of, 24, 31–32; impeachment requiring two-­ thirds majority of, 18, 98; treaties, ratification of, 13–14; vice president as president of, 177, 178–79, 180, 182, 185, 187, 194 Senate Select Committee on Intelligence, 115n91 September 11, 2001, 76, 120, 132, 136n51, 161 Sherman, James, 186, 197n28, 197n51 Sherman, Roger, 32, 177, 196n9 Short, William, 25n6 Sidey, Hugh, 139 Signer, Michael, 150 Silvini, Matteo, 146 Sinatra, Frank, and “Rat Pack,” 140 Skowronek, Stephen, 50 slaves and slavery: Emancipation Proclamation (1863), 37, 120, 204, 214, 216–17, 225n33; Jackson’s proslavery policies, 70n42, 202, 210, 213; Lincoln on emancipation after Civil War and, 217–18, 225n33; Lincoln’s opposition to extension of, 36; Lincoln’s speeches redefining American liberty and, 213–14 small-­c versus Capital-­C constitution, 2–3, 30, 31, 34, 38, 39, 40, 43, 45, 46, 155, 167. See also extraconstitutional landmarks Smith, Margaret Bayard, 53 Smith, William, 32–33 social media, Trump’s use of, 63–64, 132, 143–44, 150, 204 Social Security and Social Security Act (1935), 220, 221

Index 243 Soldier and the State, The (Huntington, 1957), 159–60, 172n20 Sondland, Gordon, 106 Sorauf, Frank, 41 Sorensen, Ted, 139 Spirit of the Laws (Montesquieu), 7, 9 spoils system, 212 Stampp, Kenneth, 56 Stanton, Edwin, 92, 122 Starr, Kenneth, 96–97, 135n46 state constitutions, 8, 19, 47n3 State Department: creation of, 10, 32–33; Ukraine, objections to delay of military aid for, 106 states’ rights, 56, 141, 209, 211, 213 Steeper, Fred, 128 Stein, Lawrence, 98 Stern, Howard, 72 Stevens, Thad, 57, 58 Stevenson, Adlai, 197n29 Stewart, Chris, 65 Strategic Studies Institute, 167 Sumner, Charles, 91 Sunstein, Cass, 101, 102 Supreme Court, U.S.: Chevron deference, 15; Clinton v. Jones (1997), 5, 113n55, 129–32; on congressional power to secure information, 110, 117n116; on executive privilege, in Nixon impeachment, 95; impeachment and, 4, 89; McCulloch v. Maryland (1819), 35; national bank, on constitutionality of, 35; Nixon v. Fitzgerald (1982), 130–31; postwar return to normalcy and, 5; FDR’s attempt to pack, 40, 203; Trump v. Mazars (2020), 117n116; unity of executive branch versus, 18; U.S. v. Nixon (1974), 95, 109 symbolic aspects of presidency, 140, 141, 142 Taft, William Howard, 39, 188 Taylor, Zachary, 99, 183, 184 Team of Rivals (Goodwin), 216 Tenure of Office Act, 4, 33, 92, 122 term lengths and impeachment, 88 term limits: Jefferson, two-­term tradition set by, 33–34; Twenty-­second Amendment on, 2, 29, 30, 34, 46, 189; Washington, retirement of, 34, 207 terror, war against, 202

Theiss-­Morse, Elizabeth, 145 Theriault, Sean M., 3, 72, 228 Thirteenth Amendment, 217–18 ticket-­balancing, 91, 181–82, 185, 196n24 Tillerson, Rex, 63 Tillman, “Pitchfork Ben,” 62 Time magazine, 139 Tocqueville, Alexis de, 202 Tompkins, Daniel D., 181, 182 treason or bribery, impeachment for, 4, 88–89, 108 Treasury Department: Bureau of the Budget, 40; creation of, 10, 32 Treaty Clause, 10, 13–14 Tribe, Laurence, 87 Trollope, Fanny, 68n20 Truman, Harry: approval ratings, 68n18, 76f, 148–49; civil-­military relations and, 165, 168; health care, failure to nationalize, 129; on health of FDR, 113n67; Korean War and, 12, 109; post-­W WII return to normalcy and, 121, 124–25; as vice president, 185, 186, 187 Trumbull, John, 118 Trump, Donald J.: ACA, efforts to dismantle, 15–16; acceptance of Republican presidential nomination, 222; aggressive exercise of administrative power by, 200, 201, 222, 223; approval ratings, 55, 68n18, 76–77, 76f, 77f; The Art of the Deal, 73; civil-­military relations and, 154, 170; communication style, overall effects of, 83, 144–45, 150, 204; constitutional context for presidency of, 1; as demagogue, 143–47; economy and, 147–48; European populism and Euroskepticism compared to rhetoric of, 145–50; explaining success of, 144–47; first impeachment of, 4, 43–44, 87, 102–10, 116n102; inaugural speech of, 73; Andrew Jackson and, 54–55, 63, 64, 65, 202; Andrew Johnson and, 64, 65, 66; as liar, 143, 146; on Lincoln, 49, 66; “Make America Great Again” (MAGA) slogan, 64, 148; Mexico border wall, 72, 133n10, 144; Mexico border wall, invocation of National Emergencies Act to build, 133n10; “Never Trump” movement, 74; Obama, birtherism attacks on, 146;

244 Index Trump, Donald J. (continued) as polarizing figure (see polarization and partisanship); popular mandate claimed by, 55, 64–65, 68n18, 70n48, 143–50; possible influence on presidency, 65–66, 71n53; postwar return to normalcy and, 132–33; presidential campaign of, 72–73, 103, 115n91, 144–45; presidential disability and Twenty-­fifth Amendment considerations, 101–2, 114n82; Reagan compared, 143; rhetorical presidency used by, 132, 146; Theodore Roosevelt and, 60, 63, 64, 65; second impeachment of, 110–11; Twitter and other social media, use of, 63–64, 132, 143–44, 150, 204; tyrannical dictators, consorting with and praising, 63, 77, 149; underestimation of, 144; unilateral actions by, 6; (un)presidential behavior, efforts to rewrite, 3, 49–51, 63–66; vice presidency under, 194; as “war president,” 132; Washington experience, lack of, 45; women and sexuality, problematic relationship with, 63, 65, 71, 72, 75, 103, 104 Trump, Ivanka, 72, 154 Trump, Melania, 73 Trump v. Mazars (2020), 117n116 Tulis, Jeffrey, 38, 43, 52, 137, 144 Turkey, populism in, 146 Twelfth Amendment, 2, 29, 180–83, 194 Twentieth Amendment, 2, 29–30 Twenty-­fifth Amendment, 2, 29, 30, 46, 87, 99–102, 113–14n69, 114n78, 190–92 Twenty-­second Amendment, 2, 29, 30, 34, 46, 189 Twenty-­sixth Amendment, 47n5 Twenty-­third Amendment, 47n5 Twitter and other social media, Trump’s use of, 63–64, 132, 143–44, 150, 204 Tyler, John, 90, 91, 113–14n69, 181, 183–85, 190, 194–95 Ukraine and Trump impeachment, 44, 105–8 unit rule, 41 unity of executive branch, consequences of, 17–18 (un)presidential behavior, 3, 49–66; backlash against, 58–59, 65–66;

Bryan-­McKinley campaign, 59–60; changing views of, 52–53; Andrew Jackson accused of, 3, 50–51, 53–56; Jefferson accused of, 3, 50, 52, 208; of Andrew Johnson, 3, 50–51, 56–59; Obama White House, Card’s complaints about dress code at, 67n3; Theodore Roosevelt accused of, 3, 50, 51, 60–63; Trump’s efforts to rewrite, 3, 49–51, 63–66; George Washington and Founders on, 51–53, 208 U.S. v. Nixon (1974), 95, 109 Van Buren, Martin, 56, 181, 182, 193, 210–12 Varon, Elizabeth, 121 Versailles Treaty, 138 Vesting Clause, 18 vetos, presidential: impeachment not subject to, 18; Andrew Jackson on, 2–3, 34–36, 54, 210, 211; Lincoln on, 218, 225n36; Second Bank of United States, Jackson’s veto of charter of, 3, 34–35, 54, 210, 211; Wade-­Davis Bill, Lincoln’s pocket veto of, 121–22, 217, 218; George Washington on, 2, 32, 35, 45 vice presidency, 5–6, 175–95; in Article II, 114n69, 177–78, 184; cabinet meetings, attendance at, 185–86, 187; campaign debates, 194; Committee of Eleven on, 176, 177; Constitutional Convention on, 44, 46, 176–77; deaths of presidents in office and, 183–85; deaths of vice presidents while in office, 182, 184; electoral college, as means of shoring up, 46, 176– 78; evolving nature of, 175–76, 186–87, 194–95; executive and administrative roles for, 185–88, 192; executive branch, move to, 186, 187–89, 191, 192; legislative branch, early association with, 178–79, 188; political parties, development of, 29, 179–82, 185; presidential disability before Twenty-­fifth Amendment and, 100–101, 184, 185, 189–90; as presidential springboard, 182–83, 189, 192, 193–94; Presidential Succession and Inability Clause, interpretation of, 183–85, 194–95; ridicule of, 44, 183; as runner-­up in presidential elections (1787–1804), 176–80; selection process,

Index 245 185, 187, 191, 194; Senate, vice president as president of, 177, 178–79, 180, 182, 185, 187, 194; serving more than one term as, 186, 188, 194, 197n51; split tickets and political differences between president and vice president, 179–80, 182; ticket-­ balancing and, 91, 181–82, 185, 196n24; Twelfth Amendment and, 2, 29, 180–83, 194; in Twentieth Amendment, 29; in Twenty-­fifth Amendment, 2, 29, 30, 100, 113–14n69, 190–92; Twenty-­second Amendment and, 189; vacancy and replacement provisions, 177–78, 184–85, 190–91; “White House vice presidency,” Carter/Mondale and creation of, 5–6, 44–45, 46, 192–94. See also specific vice presidents Vietnam War, 40, 43, 95, 110, 129, 169, 192, 223 Vox, 74 Wade, Ben, 112n41 Wade-­Davis Bill, Lincoln’s pocket veto of, 121–22, 217, 218 Wallace, Henry, 186, 187, 188, 197n51 Wall Street Journal, 64, 70n42 war: authority to start, 12–13; constitutional dictatorships in, 120, 133, 134n15, 216; 9/11, war-­footing of America since, 132; war powers act proposal, 23–24. See also civil-­military relations; commander-­ in-­chief, president as; Defense Department; military; postwar return to normalcy; specific wars Ward, John William, 54 War Department, creation of, 10, 32 War of 1812, 209, 210 Warren, Elizabeth, 81 Washington, George: advice and consent role of Senate and, 31–32; calls for impeachment of, 90; communication style and ability of, 146; Farewell Address, 207; inauguration of, 30–32; Andrew Jackson compared, 55, 210; Jefferson compared, 209, 210–12; Madison on national executive to, 7; monarchical powers of presidency and, 8, 11; Neutrality Proclamation and, 200–201, 206, 207; Newburgh Address, 168; as paradigm of presidency, 17; presidential

behavior, views on, 51–53, 208; in presidential greatness polls, 70n42; presidential “refounding” under, 202, 203, 204, 205–7; in Quasi-­War with France, 13; on removal power, 33; as republican, 208; resignation of commission as commander-­in-­chief (1783), 118–19, 120–21; two-­term limit of, 34, 207; on vetos, 2, 32, 35, 45; vice presidency and, 177, 179; weekly levees held by, 51–52; Whiskey Rebellion (1794), suppression of, 206–7 Washington Nationals (baseball team), 166 Washington Post, 42, 64, 103, 143 Watergate, 30, 42, 93–95, 103, 110 Webster, Daniel, 20, 56, 183 Wehner, Peter, 143 Wheeler, William, 197n29 Whigs, 20, 45, 90, 210, 211, 216, 218 Whiskey Rebellion (1794), 206–7 White, Theodore, 139 White House Counsel’s Office, 21 “White House vice presidency,” Carter/ Mondale and creation of, 5–6, 44–45, 46, 192–94 Whitewater investigation, 96, 135n46 Whitman, Christie Todd, 74 Whittington, Keith, 87 Wilderness Road, 210 Williamson, Hugh, 111n12, 177 Wilson, Henry, 182, 184, 197n28 Wilson, James, 7, 46, 86 Wilson, Woodrow: “Appeal for a Democratic Congress,” 123; Constitutional Government in the United States, 62; on “New Freedom,” 220; post-­W WI return to normalcy and, 121, 123–24, 133–34n12; presidential disability of, 46, 101, 124, 138, 185, 187; as Progressive, 219; rhetorical presidency of, 137, 138, 150; Theodore Roosevelt influencing, 62; on vice presidency, 184–85; vice president under, 44; WWI, presidential powers during, 120 women: Bill Clinton’s womanizing, 43, 96–97, 129–32; Nineteenth Amendment, 47n5; Trump’s problematic relationship with, 63, 65, 71, 72, 75, 103, 104 Wong, Leonard, 167

246 Index Woodward, Bob, 42 World War I: Harding leading return to normalcy after, 121, 124; Versailles Treaty, 138; Woodrow Wilson and postwar return to normalcy, 121, 123–24, 133– 34n12; Woodrow Wilson’s presidential powers during, 120 World War II: “Churchill Parallel” with George H. W. Bush, 128; congressional declaration of war in, 12; Four Freedoms

speech and, 221, 222; FDR in, 99, 120, 138–39, 221, 222; Harry Truman and postwar return to normalcy, 121, 124–25; vice presidency and, 187 Yates, Richard, 90–91 Yemen, U.S. military in, 154, 155 Yglesias, Matthew, 74 Zelensky, Volodymr, 105–7

Miller Center Studies on the Presidency Michael Nelson and Barbara Perry, editors The Presidency: Facing Constitutional Crossroads Michael Nelson Trump: The First Two Years William J. Antholis and Larry J. Sabato, editors Broken Government: Bridging the Partisan Divide Douglas A. Blackmon, editor Race: The American Cauldron Nicole Hemmer, editor Communication: Getting the Message Across Guian McKee and Cristina Lopez-­Gottardi Chao, editors American Dreams: Opportunity and Upward Mobility Sidney M. Milkis and David Leblang, editors Immigration: Struggling over Borders Michael Nelson, Jeffrey L. Chidester, and Stefanie Georgakis Abbott, editors Crucible: The President’s First Year William I. Hitchcock and Melvyn P. Leffler, editors The Dangerous First Year: National Security at the Start of a New Presidency George C. Herring The War Bells Have Rung: The LBJ Tapes and the Americanization of the Vietnam War