10. Executive Tyranny
10.1 Freedom and the Executive Branch
At the federal level, the functions of the executive branch pertain to both domestic and foreign policy. I have already explained how I think government in general should be greatly decentralized stateside with a focus on County rights first, then States, then a very limited federal instrument—in other words, true federalism. For this reason, we need not really discuss how we were once free in these regards, for we have already largely described it in so many ways. We have also already covered most of the fall into tyranny in this regard—particularly with welfare, taxation, and the military—so we will reserve comments in this regard to the two most dangerous stateside issues: the abuses of executive orders and administrative law. These will appear in the next section.
Domestic and foreign policy are separate areas, but hardly have separable consequences in many ways. In this regard we will discuss the loss of freedom in regard to the President’s enumerated power to sign treaties—a power which is checked only partially by the legislative branch. To this power, Americans have always have been, and remain, vulnerable to tyranny by foreign entanglements. This will also appear in the next section.
Lord Acton is credited with the famous saying, “Power corrupts, and absolute power corrupts absolutely.” A corollary to this is to say the closer you get to absolute power, the more the potentials and temptations of corruption increase as well. Solutions to the various problems of society appear more within reach when viewed through the scope of a comprehensively armed and funded coercive apparatus. Thus, the larger and more centralized the Executive institution becomes, the more tempting it becomes to bypass clumsy Congress and a lumbering Judiciary and instead administer as extensively as possible via Executive decree alone. And as soon as the Executive tastes the efficiency of government by decree, like sharks with blood, it goes crazy for more.
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For these reasons, along with their colonial experiences of abuse, Americans were especially wary of a strong executive power too much like a monarch. In fact, among those many grievances we have highlighted in the Declaration of Independence, all are charges against King George—the Executive—who had trampled the colonies’ rights in all other areas of legislation and courts. He had abused his executive power with the colonies and was refusing them the rights of representation and due process promised them as citizens under English common law. The precursor to the Declaration of Independence, the Declaration of Rights of 1774, complained of being governed by “unconstitutional powers.” This in particular was in reference to Parliament, but the point was that Britain and her colonies were supposed to be governed by laws. And the laws should apply equally to the rulers as to the people. Laws stand over the government, not the government over the laws. It is this principle which is broken the moment the Executive power is defined too broadly or given too much power otherwise.
Such a powerful central Executive was one of the many points of controversy during the Constitutional debates. Opponents feared the figure would be no different, essentially, than the monarch from whose tyranny they had just fought to free themselves. America already had some history of dealing with corrupt and autocratic State governors—like Dinwiddie in Virginia—and these were often bad enough. Now, the Constitution threatened to create just such an office at the national level.
At the Constitutional Convention in Philadelphia, Edmund Randolph (Governor of Virginia and later Secretary of State for a year and a half under Washington) argued that executive power should not be vested in one man but rather at least three. He—along with many others—criticized a unity in the executive as too close to creating a king. Responding to those whom he thought desired to mimic the British government, he called the presidency “the foetus of monarchy.”1
This was a major theme throughout the antifederalist writings during the ratification era. “An Old Whig” expressed the feelings of those who feared the great centralization of power to be vested in a single person in the Executive:
In the first place the office of President of the United States appears to me to be clothed with such powers as are dangerous. To be the fountain of all honors in the United States, commander in chief of the army, navy and militia, with the power of making treaties and of granting pardons, and to be vested with an authority to put a negative upon all laws, unless two thirds of both houses shall persist in enacting it, and put their names down upon calling the yeas and nays for that purpose, is in reality to be a KING as much a King as the King of Great Britain.
Such power, Old Whig continued, would be a great temptation to corruption—even to the point of seizing indefinite power and refusing to relinquish it. All that would stand in the way of such corruption is the want of unprecedented character:
It will cost a man many struggles to resign such eminent powers, and ere long, we shall find, some one who will be very unwilling to part with them. . . . So far is it from its being improbable that the man who shall hereafter be in a situation to make the attempt to perpetuate his own power, should want the virtues of General Washington; that it is perhaps a chance of one hundred millions to one that the next age will not furnish an example of so disinterested a use of great power.2
As we have seen, not even Washington was so “disinterested” as the Old Whig here assumes. And while no such refusal to leave the office has yet occurred, it is safe to say that the abuse of the great power for self-interest and party-interest is abundantly enough documented as to make the Old Whig’s prediction too accurate.
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One of the chief proponents of the one-man Executive view was James Wilson of Pennsylvania, a prominent and influential lawyer who later served as one of the original Supreme Court Justices. His arguments hold some merit as far as they would have been applicable; he thought a single-person Executive would force transparency and accountability:
The executive power is better to be trusted when it has no screen. Sir, we have a responsibility in the person of our President; he cannot act improperly, and hide either his negligence or inattention; he cannot roll upon any other person the weight of his criminality; no appointment can take place without his nomination; and he is responsible for every nomination he makes.3
This might have been great had the Executive ever truly been designed and run with literally only one person. But some of Washington’s earliest presidential deeds were to create cabinet positions with delegated responsibility. These provided the very “screens” of which Wilson warned (yet Wilson, a strong nationalist, never decried them after the fact). Hamilton was a notable screen for whose agenda, as we have seen, Washington was often largely a front. And this was within one year of Wilson’s persuasions. Today, the executive branch has dozens of levels of bureaucracy, cabinet positions, etc., and literally millions of employees—all of whom can and do provide screens for irresponsibility, corruption, waste, etc., throughout their many different levels.
Another antifederalist warned about what has turned out to be a real danger of the President: his actual job description for executing the law. This appears in Article 2, Section 3 of the Constitution and is left extremely broad (not an uncommon feature in our Constitution): “he shall stake Care that the Laws be faithfully executed.” In a letter to Captain Peter Osgood Massachusetts, William Symmes described the problem:
Can we exactly say how far a faithful execution of the laws may extend? or what may be called or comprehended in a faithful execution? If the President be guilty of a misdemeanor, will he not take care to have this excuse? And should it turn against him, may he not plead a mistake! or is he bound to understand the laws, or their operation? Should a Federal law happen to be as generally expressed as the President’s authority; must he not interpret the Act! For in many cases he must execute the laws independent of any judicial decision. And should the legislature direct the mode of executing the laws, or any particular law, is he obliged to comply, if he does not think it will amount to a faithful execution?4
In other words, the Constitution defines the President’s power so broadly that he can essentially create new laws by interpreting undefined areas of existing law according to his own agenda, interpreting how to implement existing laws, or he can perhaps even ignore specific laws of Congress if he deems them to infringe upon the broad interpretations he comes up with. In this way, the President has great latitude under the guise of his “care” to faithfully execute the laws.
Compare this recipe for confusion and tyranny with the biblical function of the executive power. Here the famous Romans 13 passage is very helpful in its simplicity. Concerning the magistrate:
he is God’s servant for your good. But if you do wrong, be afraid, for he does not bear the sword in vain. For he is the servant of God, an avenger who carries out God’s wrath on the wrongdoer (Rom. 13:4).
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The executive power’s function is simply to punish those who disobey the law. His job is not to make the laws, nor to interpret the laws, nor to judge cases at law, but rather to apply punishments and enforce the laws. And note two things: first, the making of laws must be already established before enforcement can legitimately be done. There must never be a time in which the Executive feels free to create laws itself and then enforce those laws; if such a new law needs to be created, it must go through the legislative process. In the meantime, the sword must not be used to enforce such a dubious law. Second, in a society governed by laws, the punishments themselves must be prescribed by law. The use of the “sword” itself must be predictable. Only that which the Bible says is punishable should be punished, and that which is punished should only be punished according to the principles laid down in Scripture.
Both of these reasons taken together derive from the principle that the executive power is itself subject to the law—both in what it enforces and in how it enforces it. The executive at every level of government is “a man under authority,” and must be made to behave accordingly. This is why the laws for kings which we reviewed earlier (Deut. 17) state that the King must make himself a copy of the Law and read in it daily. He must know exactly what he is empowered to do, what he is not empowered to do, and what he is explicitly forbidden to do. The law itself, in other words, should restrict the Executive’s “care that the laws be faithfully executed.”
In the biblical system, the supreme Executive is obvious: He is God. The “powers that be” in whatever executive systems we enlist on earth must all rule in God’s service, according to God’s laws, according to God’s facts, and must punish only according to God’s revealed standards of punishment and restitution. In fact, God must be the head of all our branches of government, “For the LORD is our judge; the LORD is our lawgiver; the LORD is our king; he will save us” (Isa. 33:22). The biblical Executive is a ministry accountable to God, not a demigod which has the people accountable to it.
As we shall see, the executive of the United States of today is a long way from this simple biblical model. In the next section we will see several ways in which the president has abused his care and other powers.
- Quoted in The Founders’ Constitution, ed. by Philip B. Kurland and Ralph Lerner, 5 vols. (Chicago and London: The University of Chicago Press, 1987), 3:491.(↩)
- Storing, 3:37–8; quoted in The Founders’ Constitution, 3:501.(↩)
- Quoted in The Founders’ Constitution, 3:501.(↩)
- Quoted in The Founders’ Constitution, 4:126; cf. Storing, 4:60.(↩)