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Power Grab

Last week an American Research Group poll discovered remarkable support for impeaching the president or the vice president. It would be a warranted response to the vice president's contemptuous contention that laws affecting the executive branch don't apply to him, coupled with the president's contemptible commutation of Scooter Libby's sentence and his current stonewalling of Congress. But it would not--even in the unlikely event of its success--solve the real problem, which is not just the president but the presidency he holds. George W. Bush and Dick Cheney's views of the executive branch are closer to recent reality than the civics lessons the rest of us remember. And if Congress were to enact institutional reforms, rather than embark on impeachment, it might return us our republic.

The New Deal provided a preface to our modern presidency, when, in the early days of his first term, Franklin Roosevelt received broad grants of authority from Congress to resolve the crisis of the Great Depression. The substantial failures, unpopularity, and-- the Supreme Court decided--unconstitutionality of these generous delegations of discretion forced the administration to develop a different strategy, seeking to ensure that groups of Americans--like, for example, labor unions--could strike better bargains for themselves instead of relying on the state. "[W]e intend to rely upon democratic self-help by industry and labor instead of courting the pitfalls of an arbitrary or totalitarian state," as Senator Robert Wagner said.

But soon afterward, war would justify what the Depression had not--the substantial growth of an increasingly arbitrary, if not quite totalitarian, state. Under the Reorganization Act of 1939, Roosevelt created the Executive Office of the President, which grew like a weed during World War II and the cold war to become what the political scientist Nelson Polsby would call the "presidential branch" of the U.S. government, distinct from and increasingly at odds with the executive branch as outlined in the Constitution.

In Article II the framers anticipated an executive branch embracing departments like State and Treasury. Their secretaries would be men tasked with important functions, and presidents would appoint them with the advice and consent of the Senate. They would tender reports to Congress.

By contrast, the "presidential branch" enrolls special assistants to the president, people responsible to the White House. In short, it includes the kind of people who showed up on "The West Wing"--the Donnas and Joshes, who report to the Leos, who are loyal to the man in the Oval Office. And there are a lot more of them than "The West Wing" would lead you to believe. At the start of the current administration, one study found that there were around 5,900 people working in the White House staff community. This was around half again the number at the end of the Reagan administration; after Bill Clinton kept his promise to reduce the size of his staff by 25 percent, it grew right back. And they're not as cute as the "West Wing"-ers in either appearance or behavior.

As John Kennedy noted in 1962, when he was asking for discretionary authority over the budget, the presidential branch grew to address problems that "relate not to basic clashes of philosophy or ideology, but to ways and means of reaching common goals." The Employment Act of 1946 created the Council of Economic Advisors and tasked the president with preserving widespread prosperity. The National Security Act of 1947 created the National Security Council and tasked the president with integrating domestic and foreign policy for national security. Everyone likes prosperity and security. But the presidential branch grew almost immediately to incorporate more sinister stuff.

While many of the thousands of presidential staffers tend to the superficially monarchical aspects of the presidency--keeping the White House's flowers fresh, its trim painted, its vehicular fleet running and waxed to a high shine--others keep up the essentially monarchical aspects of the office. Like proper kings, presidents keep about them a coterie of able people, each specialized in his own area, tuned to the executive temper and often willing, if necessary, to treat a rhetorical question like an order, as Shakespeare understood; Henry IV has only to ask the air, "Have I no friend will rid me of this living fear?" and a "king's friend" will do what needed doing. In less poetic but substantially similar language, a National Security Council directive of 1948 acknowledged that people reporting to the President might have to do certain dark deeds, "so planned and executed that any US Government responsibility for them is not evident ... and that if uncovered the US Government can plausibly disclaim any responsibility for them."

Plausible deniability and unsupervised authority appealed to administrations adopting the attitude that Congress was merely an annoying "committee of 535," as Ronald Reagan said, and that power properly belonged at 1600 Pennsylvania Avenue. And the presidential branch reached its apotheosis under a Republican, just after the Iran-Contra affair. It was bad enough that members of Reagan's staff, against his publicly stated policy if in keeping with his private wishes, sold weapons to Iran and used the proceeds, against U.S. law, to fund guerrillas in Nicaragua. But the final innovation in elevating the presidential branch came when George H. W. Bush pardoned convicted Iran-Contra participants, letting them to return to private life and even to government. Now the President's men can act without explicit authorization knowing that even the law will not touch them--a lesson in corruption borne out by the Libby commutation.

What Congress has done, it can undo, and now is the perfect time. A Democratic Congress would have trouble cutting back a Democrat's White House, but it should have no problem restraining a Republican president, and particularly this one, so many of whose policies run against the evident wishes of the American people. Hearings into the presidential branch's recent activities might provide grounds for impeachment, which, though gratifying, could scarcely succeed, and would lend credence to the idea that only public disapproval limits presidential action. Better to use such hearings as the basis for restoring rule of law and pruning the presidency back to its proper scope.

By Eric Rauchway