Reason Magazine - Contributors

The Cult of the Presidency

info@reason.com (Gene Healy) — Mon, 12 May 2008 12:00:00 EDT

“I ain’t running for preacher,” Republican presidential candidate Phil Gramm snarled to religious right activists in 1995 when they urged him to run a campaign stressing moral themes. Several months later, despite Gramm’s fund raising prowess, the Texas conservative finished a desultory fifth place in the Iowa caucuses and quickly dropped out of the race. Since then, few candidates have made Gramm’s mistake. Serious contenders for the office recognize that the role and scope of the modern presidency cannot be so narrowly confined. Today’s candidates are running enthusiastically for national preacher—and much else besides.

In the revival tent atmosphere of Barack Obama’s campaign, the preferred hosanna of hope is “Yes we can!” We can, the Democratic front-runner promises, not only create “a new kind of politics” but “transform this country,” “change the world,” and even “create a Kingdom right here on earth.” With the presidency, all things are possible.

Even though Republican nominee John McCain tends to eschew rainbows and uplift in favor of the grim satisfaction that comes from serving a “cause greater than self-interest,” he too sees the presidency as a font of miracles and the wellspring of national redemption. A president who wants to achieve greatness, McCain suggests, should emulate Teddy Roosevelt, who “liberally interpreted the constitutional authority of the office” and “nourished the soul of a great nation.” President George W. Bush, when passing the GOP torch to his former rival in March, declared that the Arizona senator “will bring determination to defeat an enemy and a heart big enough to love those who hurt.” Hillary Clinton, meanwhile, suggests she is “ready on Day 1 to be commander in chief of our economy.”

The chief executive of the United States is no longer a mere constitutional officer charged with faithful execution of the laws. He is a soul nourisher, a hope giver, a living American talisman against hurricanes, terrorism, economic downturns, and spiritual malaise. He—or she—is the one who answers the phone at 3 a.m. to keep our children safe from harm. The modern president is America’s shrink, a social worker, our very own national talk show host. He’s also the Supreme Warlord of the Earth.

This messianic campaign rhetoric merely reflects what the office has evolved into after decades of public clamoring. The vision of the president as national guardian and spiritual redeemer is so ubiquitous it goes virtually unnoticed. Americans, left, right, and other, think of the “commander in chief” as a superhero, responsible for swooping to the rescue when danger strikes. And with great responsibility comes great power.

It’s difficult for 21st-century Americans to imagine things any other way. The United States appears stuck with an imperial presidency, an office that concentrates enormous power in the hands of whichever professional politician manages to claw his way to the top. Americans appear deeply ambivalent about the results, alternately cursing the king and pining for Camelot. But executive power will continue to grow, and threats to civil liberties increase, until citizens reconsider the incentives we have given to a post that started out so humble.

Minimum Leader
It wasn’t supposed to be this way. The modern vision of the presidency couldn’t be further from the Framers’ view of the chief executive’s role. In an age long before distrust of power was condemned as cynicism, the Founding Fathers designed a presidency of modest authority and limited responsibilities. The Constitution’s architects never conceived of the president as the man in charge of national destiny. They worked amid the living memory of monarchy, and for them the very notion of “national leadership” raised the possibility of authoritarian rule by a demagogue ready to create an atmosphere of crisis in order to enhance his power.

The constitutional office they designed gave the president an important role, but he’d have “no particle of spiritual jurisdiction,” the 69th essay of The Federalist Papers tells us. In Federalist No. 48, James Madison assured Americans that under the proposed Constitution the “executive magistracy is carefully limited, both in the extent and the duration of its powers.” Indeed, the very pseudonym the Federalist’s authors chose, “Publius,” says something about how hostile Founding-generation Americans were to the idea of one-man rule. Publius Valerius Poplicola, a hero of the Roman revolution in the 5th century B.C., was famous in part for passing a law providing that anyone suspected of seeking kingship could be summarily executed.

Never were constitutional limitations more essential than when it came to using military power. Early Americans were no strangers to national security threats; in 1787 the U.S. was a small frontier republic on the edge of a continent occupied by periodically hostile great powers and Indian marauders. Yet the Constitution limited emergency powers and sharply rejected the idea that the president was above the law. “In no part of the Constitution,” Madison wrote in 1793, “is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department.” In any other arrangement, “the trust and the temptation would be too great for any one man.” That sentiment crossed party lines. As Chief Justice John Marshall wrote in 1801, “the whole powers of war being by the Constitution of the United States vested in Congress, the acts of that body can alone be resorted to as our guides.”

Today Americans expect their president to pound Teddy Roosevelt’s “bully pulpit,” whipping the electorate into a frenzy to harness power against perceived threats. But the Framers viewed that sort of behavior as fundamentally illegitimate. In fact, the president wasn’t even supposed to be a popular leader. As presidential scholar Jeffrey K. Tulis has pointed out, in the Federalist the term leader is nearly always used pejoratively; the essays by Madison, Alexander Hamilton, and John Jay in defense of the Constitution begin and end with warnings about the perils of populist leadership. The first Federalist warns of “men who have overturned the liberties of republics” by “paying obsequious court to the people, commencing demagogues and ending tyrants,” and the last Federalist raises the specter of a “military despotism” orchestrated by “a victorious demagogue.”

Instead of stoking public demands for action, the chief magistrate was expected to resist “the transient impulses of the people” and use his veto to keep Congress within its constitutional bounds. That role didn’t require much speechifying. Early presidents rarely spoke directly to the public; from George Washington through Andrew Jackson, they averaged little more than three speeches per year, with those mostly confined to ceremonial addresses. In his first year in office, by comparison, President Clinton delivered 600.

In the early State of the Union addresses to Congress, presidents knew better than to adopt an imperious tone. After his third SOTU, Washington wrote that “motives of delicacy” had deterred him from “introducing any topic which relates to legislative matters, lest it should be suspected that [I] wished to influence the question” before Congress. Yet the deference shown by Washington and his successor John Adams didn’t go quite far enough for our third president, Thomas Jefferson, who thought their practice of speaking before the legislature in person smacked of the British king’s “Speech From the Throne.” Jefferson instead inaugurated a new tradition of delivering the annual message in writing. For 112 years, that Jeffersonian tradition held sway, until the power-hungry Woodrow Wilson delivered his first State of the Union in person.

The 19th century did see presidents occasionally taking independent action of enormous consequences: Jefferson purchased Louisiana without congressional approval, Madison seized West Florida in 1810, Andrew Jackson governed as an irritable populist, and Abraham Lincoln expanded presidential power dramatically throughout the course of the cataclysmic Civil War. Yet taken as a whole, the 19th-century presidency was a pale shadow of the plebiscitary office we know today.

In a 2002 study tracking word usage through two centuries of SOTUs and inaugural addresses, political scientist Elvin T. Lim noted that in the first decades under the Constitution presidents rarely mentioned poverty, and the word help did not even appear until 1859. Nor did early presidents subscribe to the modern notion that it’s all “about the children”; they rarely even mentioned the little buggers. But Lim found that “Presidents Carter, Reagan, Bush, and Clinton made 260 of the 508 references to children in the entire speech database, invoking the government’s responsibility to and concern for children in practically every public policy area.”

George Washington did mention kids in his seventh annual message, lamenting “the frequent destruction of innocent women and children” by Indian raiders. But that was a far cry from Bill Clinton in 1997, who declared in the State of the Union that “we must also protect our children by standing firm in our determination to ban the advertising and marketing of cigarettes that endanger their lives.”

Wail to the Chief
A little-remembered vignette from the 1992 presidential race underscores how far we’ve traveled from the Framers’ unassuming “chief magistrate”—and how infantile our politics have become along the way. The scene was the campaign’s second televised debate, held in Richmond, Virginia; the format, a horrid Oprah-style arrangement in which a hand-picked audience of allegedly normal Americans got to lob questions at the candidates, who were perched on stools, trying to look warm and approachable. Up from the crowd popped a ponytailed social worker named Denton Walthall, who demanded to know what George H.W. Bush, Bill Clinton, and H. Ross Perot were going to do for us.

“The focus of my work as a domestic mediator is meeting the needs of the children that I work with…and not the wants of their parents,” Walthall said. “And I ask the three of you, how can we, as symbolically the children of the future president, expect the three of you to meet our needs, the needs in housing and in crime and you name it.”

One wonders how some of the more irascible presidents of old would have reacted at the sight of a grown man burbling about childish necessities to the prospective national father. Yet under the hot lights of the 1992 campaign, Ross Perot said he’d cross his heart and take Walthall’s pledge to meet America’s infantile needs, whatever those were. Bill Clinton, being Bill Clinton, pandered. And Bush 41 spluttered through his answer thusly:

“I mean I—I think, in general, let’s talk about these—let’s talk about these issues; let’s talk about the programs, but in the presidency a lot goes into it. Caring is…that’s not particularly specific; strength goes into it, that’s not specific; standing up against aggression, that’s not specific in terms of a program. So I, in principle, I’ll take your point and think we ought to discuss child care—or whatever else it is.” That wasn’t just an example of the Bush family’s famous locution problems; it’s hard not to stammer when faced with the limitless and bewildering demands the public places on the presidency.

How did we go from a reticent constitutional officer to the modern commander in chief, a figure who continually shifts back and forth between gushing empathy and military bluster, often within the same speech? As Tony Soprano might have put it, whatever happened to Calvin Coolidge, the strong, silent type?

There is no single explanation for the presidency’s growth. New communication technologies such as radio and television played a role, as did growing material progress, which made Americans less willing to suffer inconveniences and more receptive to the belief that public problems could be solved with collective action. Yet in each key period of the presidency’s growth, we see a familiar pattern: expansionist ideology meeting practical opportunity in the form of successive national crises.

The 100-Year Emergency
Much of what’s wrong with American government today can be traced to the Progressive Era, that period of reformist backlash against the Industrial Revolution that dominated the decades surrounding the turn of the 20th century. As the Progressives saw it, if the Constitution stood in the way of necessary reforms, then too bad for the Constitution. “We are the first Americans,” a young scholar named Woodrow Wilson wrote in 1885, “to hear our own countrymen ask whether the Constitution is still adapted to serve the purposes for which it was intended; the first to entertain any serious doubts about the superiority of our institutions as compared with the systems of Europe.”

The Progressives were “the nearest to presidential absolutists of any theorists and practitioners of the presidency,” wrote Raymond Tatalovich and Thomas S. Engeman in their 2003 book The Presidency and Political Science: Two Hundred Years of Intellectual Debate. For the new century’s reformers, power wielded for national greatness was benign, checks on such power perverse. The Progressives had no use for the restrained oratorical traditions of the 19th century; it was the president’s job to move the masses, unifying them behind calls for bold executive action.

Their model and embodiment was Teddy Roosevelt, whom the Progressive journalist and New Republic founder Herbert Croly described as a “sledgehammer in the cause of national righteousness.” When T.R. took the stage at the 1912 Progressive Party convention, he foreshadowed Obama’s quasi-religious fervor and McCain’s bellicosity, barking, “To you who strive in a spirit of brotherhood for the betterment of our Nation, to you who gird yourselves for this great new fight in the never-ending warfare for the good of humankind, I say in closing.…We stand at Armageddon, and we battle for the Lord!”

The most astute among the Progressives recognized that, given the American public’s congenital resistance to centralized rule, a sustained atmosphere of crisis would be necessary to sell the expansion of White House power. Two world wars and one Great Depression did the trick nicely. T.R.’s activist, celebrity presidency heralded the coming of a new sort of chief executive, one who would evermore be the center of national attention, the motive force behind American government. With his expanded power, Roosevelt busted trusts, carried a big stick throughout the Americas with a newly imperial U.S. Navy, and issued nearly as many executive orders as all of his predecessors combined. Woodrow Wilson then proved what Progressives had long hypothesized: that soaring rhetoric combined with the panicked atmosphere of war could concentrate massive social power in the hands of one person. Over the course of his presidency he helped create the Federal Reserve, nationalized railroads, and used the Espionage and Sedition Acts (along with more than 150,000 vigilantes) to carry out the most brutal campaign against dissent in U.S. history.

But it took FDR to eliminate the last remaining vestiges of the modest presidency. Roosevelt used Wilson’s Trading With the Enemy Act to shut down all U.S. banks in 1933, grabbed the power to approve or prescribe wages and prices for all trades and industries, and authorized the FBI to spy on suspected subversives. He changed the Supreme Court from a bulwark against presidential overreach to an enabler. By the end of his 12-year reign, FDR had firmly established the president as national protector and nurturer, one whose performance would be judged in terms of what political scientist Theodore Lowi has identified as the modern test of executive legitimacy: “service delivery.” In his 11th State of the Union address, FDR conjured up a second Bill of Rights, one whose guarantees would include “a useful and renumerative job” and the “right of every farmer to…a decent living.” Depression-era economic controls and war-driven centralization had turned the American system of government, in Lowi’s words, into “an inverted pyramid, with everything coming to rest on a presidential pinpoint.”

War was the health of the presidency during the long twilight struggle against the Soviet Union as well. “The worse matters get,” Harry Truman’s adviser Clark Clifford told him in 1948, “the more is there a sense of crisis. In times of crisis, the American citizen tends to back up his president.” During the Cold War, presidents used the all-purpose rationale of national security to justify spying on their political enemies. Richard Nixon might have been the most notorious abuser, with a series of dirty tricks and flagrant offenses that led to his downfall, but his predecessors also wielded the presidential bludgeon with gusto. When American steel companies raised prices in 1962, John F. Kennedy declared privately that “they fucked us, and now we’ve got to fuck them,” then (along with his attorney general, brother Bobby) ordered up wiretaps, Internal Revenue Service audits and early-morning raids on steel executives’ homes. During the 1964 presidential race, Lyndon Johnson used the CIA to obtain advance copies of Barry Goldwater’s campaign speeches, and the FBI to bug Goldwater’s plane.

In the pre-Watergate age of the heroic presidency, public trust in government was at its height, and mainstream scholars lauded the presidency as an earthly manifestation of the living God. As political scientist Herman Finer put it in 1960, the office was “the incarnation of the American people in a sacrament resembling that in which the wafer and the wine are seen to be the body and blood of Christ.” The president, Finer said, was “the offspring of a titan and Minerva husbanded by Mars.”

I Hate You; Don’t Leave Me
After Vietnam and Watergate, America’s intoxication with the imperial presidency ended with a crushing hangover. A newly aggressive press and assertive Congress produced serial revelations of the executive abuses that blind trust had enabled. In the bicentennial year of 1976, Idaho Sen. Frank Church’s Committee to Study Governmental Operations With Respect to Intelligence Activities summed up the damage:

“For decades Congress and the courts as well as the press and the public have accepted the notion that the control of intelligence activities was the exclusive prerogative of the Chief Executive and his surrogates. The exercise of this power was not questioned or even inquired into by outsiders. Indeed, at times the power was seen as flowing not from the law, but as inherent, in the Presidency. Whatever the theory, the fact was that intelligence activities were essentially exempted from the normal system of checks and balances. Such executive power, not founded in law or checked by Congress or the courts, contained the seeds of abuse and its growth was to be expected.”

During the Eisenhower 1950s and the JFK/LBJ 1960s, the newly ascendant conservative movement coalescing around Barry Goldwater and William F. Buckley’s National Review was the most potent source of criticism of the imperial presidency. “Others hail the display of presidential strength…simply because they approve of the result reached by the use of power,” Goldwater wrote in his 1964 campaign manifesto. “This is nothing less than the totalitarian philosophy that the end justifies the means.”

But enticed by the long-awaited prospect of an “emerging Republican majority” and turned off by the journalistic and congressional attacks on Nixon, conservatives learned to stop worrying and love the executive branch. During the post-Watergate reform era, two senior Gerald Ford White House aides named Dick Cheney and Donald Rumsfeld fought tooth and nail against what they felt were dangerous shackles on the executive branch, supported by a conservative commentariat that refocused its ire on the Democratic Congress and the left-leaning press. “I didn’t like Nixon until Watergate,” National Review stalwart M. Stanton Evans once quipped.

Although Americans finally recovered their native skepticism toward power after Vietnam, Watergate, and the revelations of the Church committee, we never reduced our demands on the executive branch. The lesson we seemed to have learned from the legacy of abuses was to trust less, ask more. In 1998 the Pew Research Center noted that “public desire for government services and activism has remained nearly steady over the past 30 years.” Two years later, a report on a survey by NPR, the Kaiser Family Foundation, and Harvard’s John F. Kennedy School of Government put it pithily: “Americans distrust government, but want it to do more.” The spirit of Denton Walthall lived on in the years leading up to the terrorist attacks of September 11, 2001.

Superman Returns
The Bush administration’s extraconstitutional innovations in response to those attacks are by now all too familiar. John Yoo, David Addington, and other members of the president’s legal team constructed an alternative version of the national charter, a “neoconstitution” in which the president has unlimited power to launch war, wiretap without judicial scrutiny, and even seize American citizens on American soil and hold them for the duration of the War on Terror—in other words, indefinitely—without ever having to answer to a judge.

Conventional accounts of the post-9/11 imperial presidency emphasize the role of dedicated ideologues within the administration, men and women who had long believed that post-Watergate America had swung the pendulum too far back, jeopardizing national security. There’s good reason for that emphasis, but the “cabal of neocons” narrative risks obscuring the role that public demands have played in driving the centralization of power.

In his 2007 book The Terror Presidency, Jack Goldsmith, the former head of the president’s Office of Legal Counsel, describes the prevailing atmosphere within the executive branch after 9/11, one where the president’s men were acutely aware that all eyes were on the commander in chief. What is he doing to keep us safe? What more is he prepared to do?

Goldsmith, a dissenter from the Bush administration’s absolutist theories of executive power, often clashed with Dick Cheney’s deputy David Addington, the hardest-driving supporter of those theories. But Goldsmith understood why Addington was so unrelenting: “He believed presidential power was coextensive with presidential responsibility. Since the president would be blamed for the next homeland attack, he must have the power under the Constitution to do what he deemed necessary to stop it, regardless of what Congress said.”

That dynamic can lead to enhanced presidential power even in areas far removed from the War on Terror, as was demonstrated in the aftermath of Hurricane Katrina. In business or in government, responsibility without authority is every executive’s worst nightmare. That was the political reality facing the Bush administration in late summer 2005, when New Orleans was under water and desperate for assistance. As Colby Cosh of Canada’s National Post put it at the time, “the 49 percent of Americans who have been complaining for five years about George W. Bush being a dictator are now vexed to the point of utter incoherence because for the last fortnight he has failed to do a sufficiently convincing impression of a dictator.”

To be sure, the administration deserved plenty of blame for bungling the disaster relief tasks it had the power to carry out. But it soon became clear that the public held the Bush team responsible for performing feats above and beyond its legal authority. One almost had to feel sorry for Michael “Heckuva Job” Brown(ie), the disgraced former Federal Emergency Management Agency head, when he was obliged on Capitol Hill a month after the hurricane to inform an irate Rep. Chris Shays (R-Conn.) that in our federalist system, the FEMA chief has no power to order mandatory evacuations, or to become “this superhero that is going to step in there and suddenly take everybody out of New Orleans.” “That is just talk,” Shays responded. “Were you in contact with the military?”

For a president beleaguered by public demands, seizing new powers can be an adaptive response. Small wonder, then, that the Bush administration promptly sought enhanced authority for domestic use of the military. Although few in the media noted the historical moment, the president received that authority. On October 17, 2006, the same day he signed the Military Commissions Act denying centuries-old habeas corpus rights to “enemy combatants,” the president also signed a defense authorization bill that contained gaping new exceptions to the Posse Comitatus Act of 1878, the federal law that restricts the president’s power to use the standing army to enforce order at home.

The new exceptions to the act gave the president power to use U.S. armed forces to “restore public order and enforce the laws” when confronted with “natural disasters,” “public health emergencies,” and “other…incidents”—a catchall phrase that radically expands the president’s ability to use troops against his own citizens. Under it, the president can, if he chooses, fight a federal War on Hurricanes, declaring himself supreme military commander in any state where he thinks conditions warrant it. That’s the kind of executive power grab that happens when the public demands that the president protect Americans from the hazards of cyclical bad weather.

2009 and Beyond
To understand is not to excuse: No president should have the powers President Bush has sought and seized during the last seven years. But after 9/11 and Katrina, what rationally self-interested chief executive would hesitate to centralize power in anticipation of crisis? That pressure would be hard to resist, even for a president devoted to the Constitution and respectful of the limited role the office was supposed to play in our system of government.

In the current presidential race, none of the major-party candidates comes close to fitting that description. Aside from the issue of torture, there’s very little daylight between John McCain and George W. Bush on matters of executive power. For her part, Hillary Clinton claims she played a key role in her husband’s undeclared war against Serbia in 1999. “I urged him to bomb,” she told Talk magazine that year. In 2003 she told ABC’s George Stephanopoulos: “I’m a strong believer in executive authority. I wish that, when my husband was president, people in Congress had been more willing to recognize presidential authority.”

Barack Obama has done more than any candidate in memory to boost expectations for the office, which were extraordinarily high to begin with. Obama’s stated positions on civil liberties may be preferable to McCain’s, but would it matter? If and when a car bomb goes off somewhere in America, would a President Obama be able to resist resorting to warrantless wiretapping, undeclared wars, and the Bush theory of unrestrained executive power? As a Democrat without military experience, publicly perceived as weak on national security, he’d have much more to prove.

As Jack Goldsmith put it in his 2007 book, “For generations the Terror Presidency will be characterized by an unremitting fear of attack, an obsession with preventing the attack, and a proclivity to act aggressively and preemptively to do so.…If anything, the next Democratic President—having digested a few threat matrices, and acutely aware that he or she alone will be wholly responsible when thousands of Americans are killed in the next attack—will be even more anxious than the current President to thwart the threat.”

Law professors Jack Balkin of Yale and Sanford Levinson of the University of Texas at Austin are both Democrats and civil libertarians, so they take no pleasure in their prediction that “the next Democratic President will likely retain significant aspects of what the Bush administration has done.” Indeed, they write in a 2006 Fordham Law Review article, future Democratic presidents “may find that they enjoy the discretion and lack of accountability created by Bush’s unilateral gambits.”

Throughout the 20th century more and more Americans looked to the central government to deal with highly visible public problems, from labor disputes to crime waves to natural disasters. And as responsibility flowed to the center, power accrued with it. If that trend continues, responses to matters of great public concern will be increasingly federal, increasingly executive, and increasingly military.

In the years to come, many Americans will find that the results of executive action are not to their liking. And if history is any guide, they’ll respond by vilifying the officeholder and looking for another man on horseback to set things right again.

In The Road to Serfdom, economist and political philosopher F.A. Hayek chastised the “socialists of all parties” for their belief that “it is not the system we need fear, but the danger it might be run by bad men.” Today’s “presidentialists of all parties”—a phrase that describes the overwhelming majority of American voters—suffer from a similar delusion. Our system, with its unhealthy, unconstitutional concentration of power, feeds on the atavistic tendency to see the chief magistrate as our national father or mother, responsible for our economic well-being, our physical safety, and even our sense of belonging. Relimiting the presidency depends on freeing ourselves from a mind-set one century in the making. One hopes that it won’t take another Watergate and Vietnam for us to break loose from the spellbinding cult of the presidency.

Gene Healy, a senior editor at the Cato Institute, is the author of The Cult of the Presidency: America’s Dangerous Devotion to Executive Power (Cato), from which this essay was adapted.

A Presidency Worth Celebrating

info@reason.com (Gene Healy) — Mon, 18 Feb 2008 12:00:00 EST

Presidents Day: It's become so commercialized. But should we celebrate something other than 20 percent markdowns on clothes and furniture? However much Americans may revile individual presidents, many of us believe that the presidency itself gives us much to be thankful for.

Conservative historian Forrest McDonald expressed a common view when he wrote in 1994 that "the presidency has been responsible for less harm and more good, in the nation and the world, than perhaps any other secular institution in the world."

It's not hard to think of other institutions that better justify McDonald's praise. The independent judiciary? Market capitalism? The family? Casual Fridays? But more to the point, is the presidency still a "secular institution"?

If it is, that's hard to discern by listening to our current front-runners in the 2008 race, who talk as if they're running for a job that's a combination of guardian angel, shaman, and Supreme Warlord of the Earth.

John McCain has invoked Teddy Roosevelt as a role model, noting that the Trustbuster "liberally interpreted the constitutional authority of the office" and "nourished the soul of a great nation." Barack Obama sees soul-nourishing as part of the president's job too. As his 2004 keynote address to the Democratic Convention made clear, the "Audacity of Hope" signifies the eternal promise of redemption through presidential politics. (Is "audacity" really the right word for that kind of hope?).

Both men also see the president's corporeal responsibilities as boundless—ranging from providing liberty the world over to establishing a "Credit Card Bill of Rights" that would ban certain charges and ensure "prompt and fair crediting of cardholder payments."

Our first president had a far narrower view of the office's powers and responsibilities. And since the holiday we're enjoying is still officially known as "Washington's Birthday," perhaps there's something to be learned from his comparatively restrained view of the office.

It's common these days, especially after 9/11, to hear people call the president "our commander in chief"—as if he's the leader of society as a whole, rather than just the head of the U.S. military. But Washington didn't go around calling himself everybody's commander in chief. Most often he referred to himself as merely the "chief magistrate."

And contrary to our contemporary George W., Washington didn't think his authority as commander in chief meant he could break any law that he thought impinged on his ability to protect national security. Washington even doubted his "inherent power" to launch offensive action against hostile Indian tribes. As he put it in 1793, "The constitution vests the power of declaring war in Congress; therefore no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject and authorized such a measure."

Nor did Washington believe that it was the chief magistrate's role to serve as "Tribune of the People," promising great works, and demanding the power to carry them out. Like other early presidents, Washington averaged only a handful of public speeches a year. The modern presidency--an office charged with providing seamless protection from physical harm or spiritual decay—is a different creature entirely.

But if we worry about the increasing concentration of power in the executive branch, we shouldn't kid ourselves that the Imperial Presidency can be blamed solely on a cabal of neoconservative ideologues and a stack of hanging chads. Our outsized conception of presidential responsibility has driven the growth of presidential power. Only by reducing those demands can we restore the presidency to its proper constitutional place: a modest office with modest powers.

That sort of restoration would be something worth celebrating.

Gene Healy is senior editor at the Cato Institute and author of the forthcoming The Cult of the Presidency: America's Dangerous Devotion to Executive Power.

Discuss this article at reason's blog, Hit & Run.

Rant: Learning to Love the Imperial Presidency

info@reason.com (Gene Healy) — Wed, 12 Sep 2007 12:34:00 EDT

“I took an oath, and I take that oath to the president very seriously,” former White House aide Sara Taylor told the Senate Judiciary Committee during the summer hearings on the U.S. attorneys purge. Taylor’s statement prompted an indignant clarification from Sen. Patrick Leahy (D–Vt.): “No, the oath says that you take an oath to uphold and protect the Constitution of the United States!”

Leahy was right, of course. But it’s not surprising that the 32-year-old Taylor, born the month after Nixon’s resignation, had some trouble locating the object of her sworn fealty. For as long as she’s been alive, the conservative movement has prioritized the expansion of presidential power, often at the expense of the Constitution.

It wasn’t always that way. Almost to a man, the conservatives who coalesced around William F. Buckley’s National Review in 1955 associated executive power with liberal activism and viewed Congress as the conservative branch. In 1967 the right-wing intellectuals Russell Kirk and James McClellan praised the late Ohio Sen. Robert Taft, “Mr. Conservative,” for warning that an overly aggressive foreign policy threatened to “make the American President a virtual dictator.” During his 1964 presidential bid, Barry Goldwater called the celebration of presidential power “a philosophy of government totally at war with that of the Founding Fathers.”

Yet Goldwater’s distrust of presidential power fit uneasily with his embrace of a hyper-aggressive posture in the struggle against the Soviet Union. When conservatives did support the expansion of presidential power, it was almost always in the context of foreign policy. Even so, postwar, pre-Watergate conservatives in Congress voted against the expansion of presidential power more consistently than did liberals.

That began to change with Nixon. Prominent conservatives began to see the executive as the conservative branch and set to work developing a conservative case for the imperial presidency. Right-wing ressentiment over Nixon’s downfall helped drive the shift. As the right-wing writer M. Stanton Evans quipped, “I didn’t like Nixon until Watergate.”

Conservatives started to consistently vote for major expansions of presidential strength, even when those expansions contradicted traditionally conservative positions. By the Reagan era, prominent Republicans were calling for a repeal of the 22nd Amendment, which limits presidents to two terms. In the ’90s, then-Speaker Newt Gingrich led an unsuccessful effort to repeal the War Powers Act, even though that would have increased the powers of President Clinton. “I want to strengthen the current Democratic president,” Gingrich explained, “because he’s the president of the United States.”

Trying to strengthen the powers of the presidency when the office is occupied by a political enemy shows principle of a sort. But it’s not a recognizably conservative principle. Conservatism as its best has recognized man’s weakness for power. As Kirk put it in 1993, “The conservative endeavors to so limit and balance political power that anarchy or tyranny may not arise. In every age, nevertheless, men and women are tempted to overthrow the limitations upon power, for the sake of some fancied temporary advantage.”

Modern conservatives, by contrast, spent much of the ’90s trying to convince the nation that its highest office had been seized by an unscrupulous, venal man who would stop at nothing to retain power. They’ve spent much of this decade trying to tear down checks on that office’s power, all the while with another Clinton warming up in the on-deck circle.

The Heritage Foundation, the leading conservative think tank in D.C., still offers a Russell Kirk lecture series. The speaker at the Kirk Lecture of February 2006 was John C. Yoo—an architect of the PATRIOT Act, coauthor of White House legal memos asserting that the president could unilaterally suspend the Geneva Conventions, and the legal academy’s most prominent advocate of unbridled executive power.

You’ve come a long way, baby.

Gene Healy, senior editor at the Cato Institute, is writing a book called The Cult of the Presidency, to be published next year.

Geena Davis Is Not My President

info@reason.com (Gene Healy) — Sun, 01 Jan 2006 00:00:00 EST

Stay What Course?

info@reason.com (Gene Healy) jlogan@cato.org (Justin Logan) — Wed, 02 Nov 2005 00:00:00 EST

At the start of the Iraq War two and a half years ago, President Bush declared that American troops would stay in Iraq "as long as necessary, and not a day more." How long that would be wasn't clear then, and it isn't any clearer today. During recent congressional testimony, Secretary of State Condoleezza Rice was asked, "Do you think five years from now some American forces will have come out?" She replied, "I don't want to speculate." Then a softer version of the same question: "What about 10 years from now?" After some brief wrangling, Rice replied, "I don't know how to speculate about what will happen 10 years from now."

That's not good enough. The president and other proponents of the current "stay the course" strategy have noted that withdrawal from Iraq could bring with it serious costs in terms of American credibility and Iraqi lives. They're right. But they've been silent on what price America should be willing to pay to avoid those costs. Any serious conversation about what to do in Iraq cannot focus simply on the costs of exit; it must consider the costs of staying. How long will it take? How many soldiers is the mission worth sacrificing? And can the mission be accomplished?

On October 2, Gen. John Abizaid, CENTCOM commander, noted that the insurgency is "certainly alive and well." And what little hard data is available paints a bleak picture: From May until August, the number of daily attacks by insurgents hovered near the all-time high, then skyrocketed to a new high in September. Even so, President Bush warns that "we can expect there to be increasing violence" over the coming months.

Gen. Richard Myers, former chairman of the Joint Chiefs of Staff, has said insurgencies like the one we face in Iraq generally require 7 to 12 years of fighting. The Defense Science Board, the Pentagon's research agency, is even more pessimistic: Remaking "disordered societies, with ambitious goals involving lasting cultural change, may require 20 troops per 1,000 indigenous people" for five to eight years. Twenty troops per 1,000 people in Iraq comes out to around half a million U.S. troops—about 350,000 more than we have available. Even staying the current course at current troop levels, according to the Congressional Research Service, could cost $570 billion by 2010.

More important by far are the human costs of a protracted occupation. Thus far 2,000 American soldiers have been killed and many more grievously wounded. At current casualty rates, even five more years in Iraq translates to nearly 4,000 more dead Americans. Is that a price we're willing to pay to "stay the course"?

Understandably, the current situation has placed great strains on recruitment. In the fiscal year that just ended in September, the Army National Guard and Army Reserve fell short by more than 17,000 recruits combined. The active duty Army experienced its worst recruiting shortfall since 1979. It responded by doubling the number of recruits it accepts who scored extremely poorly on mental aptitude tests. In congressional testimony earlier this year, assistant secretary of the army Richard A. Cody said "what keeps me awake at night is what will this all-volunteer force look like in 2007?" This summer, retired Gen. Barry McCaffrey predicted a "meltdown of the Army National Guard and Army Reserve in the coming 36 months." Is that a price we're willing to pay to "stay the course"?

Opponents of leaving Iraq point out that we have a moral obligation to Iraq: We broke it, and now we've bought it. This point is compelling, and difficult to face. It is indeed awful that so many Iraqis are suffering as a result of the war, and might suffer more if we left. But is there a ceiling on the costs we should be willing to pay to fulfill that obligation?

More importantly, can we fulfill it? Muddling through is simply not a policy-especially when it brings with it serious risks that five or ten years from now, we'll be in the same position we're in now, with several thousand more Americans dead. Attempting to press the fractious groups in Iraq toward enduring national reconciliation has yielded few dividends thus far, and American servicemen should not be asked to take fire indefinitely while waiting for that reconciliation to happen. Our troops are volunteers, yes, but that does not excuse their bearing the brunt of ill-defined goals and failed political leadership. It does a grave disservice to our men and women in uniform to command them to risk their lives, day in and day out, in service of a plan that amounts to "keep hope alive."

If the administration has a strategy for going forward, it needs to convey to the American people—with numbers and measurable goals—how to define victory, and what we intend to change to help us get there. It needs to show that there is a plan, and that we are not simply engaged in a slow bleed, with little hope of success.

Based on the administration's public statements, they have no realistic plan for victory in Iraq. And without a victory strategy, there is only one alternative: an exit strategy. It is past time we develop one.

Gene Healy is senior editor and Justin Logan a foreign policy analyst at the Cato Institute.

Geena Davis Is Not My President

info@reason.com (Gene Healy) — Tue, 18 Oct 2005 00:00:00 EDT

Geena Davis has been president for about three days now in TV time, and she's already rearranged the Sixth Fleet and ordered U.S. troops into action twice. ABC's new hit drama Commander in Chief (which airs tonight at 9/8c) focuses on the personal and political challenges faced by our fictional first female chief executive, Davis' Mackenzie Allen. But what's interesting about the show isn't the idea of a woman president, and it certainly isn't the hackneyed dialogue. If C in C is worth watching at all, it's for what it tells us about modern, popular views of the presidency. Judging by the first three episodes, and the show's popularity, the romance of presidential power transcends left and right.

C in C is the brainchild of Rod Lurie, whose previous foray into political drama was The Contender (2000). In that film, Joan Allen played a scandal-tarred Senator Laine Hanson, fighting for confirmation as the nation's first female vice-president. Lurie's politics can be seen in Senator Hanson's confirmation speech before the Senate, where she calls for taking "every gun out of every home, period" and "making the selling of cigarettes to our youth a federal offense," before descending into unvarnished state-worship and dubbing Congress her "church."

Lurie has toned the leftish rhetoric down somewhat for the small screen. Geena Davis' Mac Allen is an independent, and if her politics are thus far difficult to discern, it may be because they consist of convictions shared by both parties, such as dedication to a militarized drug war and a hyper-Wilsonianism that sees all the world's quarrels as our own.

In episode one, just after ascending to office, President Allen meets with the chairman of the Joint Chiefs of Staff to decide what to do about a woman in Nigeria who's about to be executed under Shariah law for adultery. The answer: Send in the Marines. After a threat to its ambassador, the Nigerian government relents and we see the prisoner running to the rescue helicopter flanked by American soldiers, as President Allen delivers the line "I will always defend the Constitution." (A commentator at National Review approves, giving Mac's decision a "You go, girl.")

Leave it to Lurie to make Republicans—fictional ones, at least—look good again. In episode three, as Mackenzie Allen gets ready to launch her second military action in as many days, she makes a courtesy call on her nemesis, GOP Speaker of the House Nathan Templeton, played with charmless creepiness by Donald Sutherland. She tells Templeton of her plan to capture Noriega-clone "General Sanchez," the dictator of "San Pascuale," who has been complicit in the deaths of six American DEA agents. Templeton complains about the frequency of post-Cold War military campaigns and pointedly asks how many of them have been worth "spilling American blood." And he notes that Allen's plan to spray defoliant on San Pascuale's coca fields will ruin a lot of poor farmers who have no other option for feeding their families. Much more of this and I'll be tempted to get a "Donald Sutherland is my President" bumper sticker for my car.

Perhaps it's a mistake to try to glean political messages from prime-time television, but Geena Davis's turn as a distaff Richard Nixon suggests that if there's anything the left and the right can agree on, it's the glory of the Imperial Presidency.

There was a time when liberals worried about excessive concentration of power in the executive branch. Indeed, Arthur Schlesinger, Jr., warned in 1973's The Imperial Presidency that the American political system was threatened by "a conception of presidential power so spacious and peremptory as to imply a radical transformation of the traditional polity." The Cold War had transformed the Framers' energetic but constitutionally constrained chief executive into a sort of elected emperor with virtually unchecked authority in the international arena, and increasingly the domestic sphere as well.

But as political scientist Michael Nelson has noted, even the post-Watergate backlash among presidential scholars was a sort of "lover's quarrel with the presidency." Liberals disillusioned by the lies and abuses of LBJ and Nixon grumbled about presidential power while secretly pining for the restoration of Camelot. The Clinton scandals found Schlesinger greatly exaggerating the demise of the Imperial Presidency, and complaining that Ken Starr had left the executive branch "harried and enfeebled."

Not long after Schlesinger wrote those words, President Clinton began bombing Iraq on the eve of his impeachment, and a few months later he carried out a war in Serbia in the face of Congress's refusal to authorize it. Today, with George Bush claiming the authority to designate American citizens enemy combatants and lock them up for the duration of the war on terror without trial, there can be no doubt that the Imperial Presidency is alive and well.

And most Americans, liberal or conservative, can't imagine it any other way. The public is no longer content to accept a mere chief magistrate, charged with faithful execution of the laws; instead, over the 20th century, the president has been transformed into a national Father-Protector, who is supposed to keep us safe from everything from economic dislocation to bad weather. As the National Post's Colby Cosh put it two weeks after the Katrina debacle, "the 49 percent of Americans who have been complaining for five years about George W. Bush being a dictator are now vexed to the point of utter incoherence because for the last fortnight he has failed to do a sufficiently convincing impression of a dictator."

But the office cannot bear the weight of the expectations placed upon it, nor, in most cases, can the officeholder. It's little wonder we want most presidents' shows cancelled by their sixth season, at the latest.

Perhaps instead of looking for a statuesque World Saver to fill the job, Americans ought to be willing to accept something less glamorous. You could hardly get less glamorous than our 27th president, William Howard Taft—who, since he did not start any major wars or offer any New Deals, is now best known for being shaped like a zeppelin. But Taft saw clearly where grandiose visions of presidential power would take the country, and fought against them with all his enormous bulk. In a series of lectures delivered at Columbia University in 1915 and 1916, Taft criticized the view of executive power offered by Teddy Roosevelt, his predecessor, a view that both Mackenzie Allen and George W. Bush embrace. Per Taft:

[The] mainspring of such a view is that the executive is charged with responsibility for the welfare of all the people in a general way, that he is to play the part of a universal Providence and set all things right, and that anything that in his judgment will help the people he ought to do, unless he is expressly forbidden not to do it. The wide field of action that this would give to the executive, one can hardly limit.

Geena Davis looks terrific, but we might do better with an awkward fat man. And perhaps the Republic will have regained its health when the presidency is no longer fodder for TV drama, but has instead been relegated to its proper place: the sit-com.

Gene Healy is senior editor at the Cato Institute

Nuclear Brinksmanship

info@reason.com (Gene Healy) — Wed, 27 Apr 2005 00:00:00 EDT

The fight over judicial nominations is moving past the posturing stage. On Friday, Vice President Dick Cheney removed any remaining doubt about whether he'd help G.O.P. senators use the so-called nuclear option in their quest to end judicial filibusters. With the nominations of Janice Rogers Brown and Priscilla Owen ready to come to the floor of the Senate, and Democrats determined to block them yet again, the Senate Republicans, with Cheney's help, have threatened to end judicial filibusters by a mere 51 votes, instead of 60 votes.

There are two possible outcomes to this game of nuclear brinksmanship. One sounds like fun. The other should give limited government advocates pause. The first outcome has Democrats retaliating by refusing cooperation on most of the ordinary business of the Senate. As former Democratic leader Tom Daschle explained to The New Yorker's Jeffrey Toobin recently, "The Senate runs on 'unanimous consent'...It takes unanimous consent to stop the reading of bills, the reading of every amendment. On any given day, there are fifteen or twenty nominations and a half-dozen bills that have been signed off for unanimous consent. The vast work of the Senate is done that way. But any individual senator can insist that every bill be read, every vote be taken, and bring the whole place to a stop."

Bringing the Senate to a crashing halt will hardly scare those of us who believe that no man's property is safe while Congress is in session. In fact, there would be something perversely entertaining about C-SPAN programming dominated by the monotonous recitation of 700-page agriculture bills. If only the senators could be forced to sit and listen. The Intelligence Reform Bill of 2004 is 236 pages long, and it's a safe bet few senators read it in its entirety. McCain-Feingold clocked in at a mere 36 pages, yet in February 2003 The New York Times reported that the Democratic and Republican party organizations had to hire high-priced lawyers and consultants to run seminars teaching senators and congressmen about the requirements of the law they had just passed. "I didn't realize what all was in it," Rep. Robert Matsui (D-Calif.) said. A breakdown in Senate cooperation would lead to a period of blissful inactivity, and could help educate the public about the increasingly incomprehensible statutes Congress calls "laws."

But the second possible endgame to the filibuster battle should worry you, unless you think too little legislation is a major problem in American life. There's a chance that the G.O.P.'s nuclear gambit could eventually lead to the death of the filibuster as a whole.

That would be disastrous. The theory underlying the Constitution is that, in political life as opposed to economic, transaction costs are good. As James Madison explained in Federalist 62, the Senate itself was designed in part to curb "the facility and excess of lawmaking." The filibuster isn't part of the Constitution, but it helps augment some of the Constitution's checks on promiscuous legislating. Since many of the constitutional checks on legislative overreach have eroded over the years, the filibuster is even more important today.

As the minority party in the first two years of the Clinton administration, Republicans used filibuster threats to hold up a porkbarrel economic stimulus package, campaign finance restrictions, health care "reform," and a bill banning permanent replacements for striking workers. The historical record in that period and others shows that the filibuster is an essentially conservative instrument.

Smart liberals in the commentariat, like Slate's Tim Noah and The American Prospect's Matt Yglesias, are starting to recognize this. As Yglesias noted in a recent column for the Prospect, Americans are congenitally suspicious of new "'big government' schemes,"

but once such schemes are put into place, they prove quite popular... The liberal difficulty is what it always has been—getting new stuff passed into law... it's very hard to think of any major conservative legislation that's ever been stopped by a filibuster.

It is, by contrast, very easy to think of liberal initiatives that filibusters have blocked. Indeed, as conservative activist Jim Boulet Jr. has wisely argued in a memo to his comrades, the filibuster is crucial to conservatism. By his account, without it, majorities would exist to raise the minimum wage; reform labor law to make new union organizing easier; ban discrimination against gays and lesbians in employment; reduce greenhouse-gas emissions; and close the "gun-show loophole."

(The Boulet memo can be found here.)

To Yglesias and Noah, the answer is obvious: ditch the legislative filibuster. Doing so might lead to some short-term victories for conservatives, but the long-term game favors liberals, who, without the filibuster, will be far better positioned to pass measures like universal health care.

During the judicial nomination fights of the George W. Bush administration, Republicans have floated convenient constitutional theories with the creativity of a Ninth Circuit liberal, such as the theory that giving a Catholic nominee a hard time for his views on abortion amounts to an unconstitutional "religious test for office."

But at least one of the GOP's constitutional arguments is quite strong. That's the "dead hand" argument against current Senate rules, which require a two-thirds majority to change the filibuster rules. That requirement entrenches the preferences of a past Senate and denies the present Senate its constitutional authority to make its own rules. But note that the argument against filibuster entrenchment applies to legislative filibusters as well as judicial ones. By invoking the "dead hand" argument, a future Democratic majority might be able to get rid of the legislative filibuster through a procedural gambit similar to what the Republicans like to call their "constitutional option."

And that move will be far easier to sell politically if Republicans get rid of the judicial filibuster by a simple majority vote. Senate majority leader Bill Frist (R-TN) and other supporters of the rules change make much of the claim that they are only aiming to end the filibuster for judicial nominations, not legislation. But a principled distinction—if there is one—between judicial and legislative filibusters will be mighty hard for the GOP to articulate when faced with the soundbite "you did it first."

What ought to happen instead is a return to real filibusters. The Jimmy Stewart–style filibuster became a rarity in the 1970s when then–majority leader Mike Mansfield ushered in a two-track system whereby the Senate could move on to other business when a credible threat to filibuster was presented. In the modern era, real filibusters only occur when the majority sees political advantage in the spectacle. In 1988, for example, in the midst of a filibuster fight over campaign-finance legislation, then–majority leader Robert Byrd ordered the arrest of Republican senators boycotting a quorum vote. Three Capitol policemen forced their way into Sen. Bob Packwood's office, grabbed Packwood by his ankles and both arms, and carried him feet first onto the Senate floor. "The knock on the door and the forced entry smack of Nazi Germany, smack of communist Russia," wailed Senator Arlen Specter. "I rather enjoyed it," said Packwood.

Washington needs more of this sort of thing. If the Democrats really think Janice Rogers Brown is a threat to the Republic, they ought to be willing to get hoarse-voiced and incoherent keeping her off the D.C. Circuit. And if Republicans are committed to these judges, they ought to be willing to sleep on cots in cloakrooms. For their salaries, perks, and power, the least they can do is give us a show.

Making A Federal Case Out of Almost Everything

info@reason.com (Gene Healy) — Fri, 17 Dec 2004 00:00:00 EST

"Don't make a federal case out of it," we used to tell people who blew things out of proportion. But that phrase is quickly losing its bite as the federal government expands its jurisdiction to every area of American life.

Responding to the Barry Bonds-Jason Giambi steroid scandal, Senator John McCain (R-AZ) recently threatened to bring the federal hammer down on Major League Baseball: "Major-league baseball players and owners should meet immediately to enact the standards that apply to the minor leagues, and if they don't, I will have to introduce legislation that says professional sports will have minimum standards for testing," McCain said on December 3rd. (Up next, perhaps, legislation to revoke the American League's designated hitter rule.)

The week before McCain issued his threat, the Justice Department fought in the Supreme Court to maintain the right to jail sick people taking marijuana on the advice of their doctors and with the approval of their state government. On November 29, the Supreme Court heard oral argument in Ashcroft v. Raich, a case involving two desperately ill women who use marijuana and seek protection from prosecution under federal drug laws. Acting solicitor general Paul Clement told the Court that medicine grown in one's own backyard for home consumption was a national matter, subject to Congress's power to regulate interstate commerce—despite the fact that there is nothing remotely commercial or interstate about the conduct at issue.

Those are just two recent examples of a federal government that views its jurisdiction as limitless. That's a view quite at odds with the one held by the Constitution's Framers. The document they drafted envisioned a federal government focused on national issues, such as "war, peace, negotiation, and foreign commerce," in Madison's words. Even the most devoted advocate of national power, Alexander Hamilton, agreed, explaining in Federalist 17 that under the Constitution, "the ordinary administration of criminal and civil justice" would be left to the states.

We've drifted far from that understanding. Congress's power to "regulate Commerce...among the states," which was designed to eliminate state-level trade barriers, has become a limitless font of federal power, used to regulate or criminalize behavior better left to the states or the civil law.

With commerce clause limits eviscerated, almost anything can be a federal crime. We've gone from a Constitution that mentions only three federal crimes (treason, piracy, and counterfeiting) to a federal criminal code with over 4,000 separate offenses, some of them stunningly trivial. In 2002, President Bush signed legislation making it a federal crime to move birds across state lines to engage in fights. The ban on cockfighting joined such notable federal crimes as interstate transport of unlicensed dentures (punishable by up to a year in prison), tampering with an odometer (up to three years), and pretending to be a member of the 4-H Club (up to six months). These and other offenses larded throughout the U.S. code could make for an interesting conversation with one's cellmate: "What are you in for, kid?"

But out-of-control federalization is only rarely amusing. It brings serious costs. In addition to the trivial crimes mentioned above, Congress has federalized a host of ordinary street crimes already covered by state criminal codes, crimes like arson, carjacking, and gun possession by felons. Shunting these cases into federal court causes huge delays to civil litigants and unsustainable pressure on the federal courts. Chief Justice Rehnquist has characterized the result as "a crisis in workload." Forcing the federal courts to handle workaday criminal matters crowds out civil suits and leads to huge delays for civil litigants because criminal defendants have a constitutional right to a speedy trial and everyone else has to wait in line.

Moreover, a federal government focused on everything from cockfighting to steroid use is a federal government that's not focused on truly national issues. Case in point: In the months leading up to the September 11 attacks the FBI was engaged in an 18-month-long sting operation at a brothel in New Orleans that netted 12 prostitutes. September 11 should have concentrated the mind wonderfully as to proper federal priorities, yet federal law enforcement to this day continues to behave like the local vice squad.

But the most important costs of overfederalization are the costs to the rule of law. A federal criminal code that covers everything essentially delegates to prosecutors and police the power to pick targets they think they should get rather than offenses that need to be prosecuted—leaving everyone at risk. That is unacceptable in a country that still considers itself a government of laws and not of men. It's well past time we rediscovered the wisdom of constitutional limits.