Anti-Federalist Concerns

A country still wrought with polarization and disagreement was unsurprisingly born out a similar form of disagreement. This dispute arose from contemplation over the makeup of the executive branch. On one side, stood the Federalists–in support of a unitary executive. Yet, the opposite side, the Anti-federalists, were adamant supporters of a multilateral executive. Today, the arguments of the later group expressed by George Clinton in “Cato 4” would depict a very accurate picture of the democracy we live in today–one were the executive is becoming increasingly stronger. Clinton [1], along with his colleagues, argued that this single seated executive branch is bound towards corruption and an overstepping of authority. Obviously, a seemingly unmatched executive branch raised concerns due to the particular circumstances of the time. Today, eerily similar concerns over the power of the executive and its effects on democracy have surfaced.

Subtle encroachment of powers by the executive

Varol in “Stealth Authoritarianism”[2] makes the argument that today democratic regimes are increasingly using their seemingly democratic institutions to impose a new form authoritarianism. It is through the constitution that they “veneer legitimacy” and ultimately erode the democratic system in which they rule under. Any form of authoritarianism be it through violence or constitutional means would be admittedly opposed by both Federalists and Anti-Federalist alike. However, the ambiguities of the constitution– specifically the “take care clause”[3] found in Article II– and the collective action problem in Congress have led to an overly powerful executive branch in the United States that yields to this form of Stealth Authoritarianism.

This form of authoritarianism in the United States is not as new as Varol states. In fact, it tends to be a common characteristic of presidents that come in during a reconstructive political time as defined by Skowronek. This period is characterized by expansive presidential authority and little to no prior commitments to party.[4] An interesting example of this stealth authoritarianism during a reconstructive era can be found within Franklin D. Roosevelt’s presidency. FDR had met great opposition for his New Deal policies from both the Courts and Congress. However, FDR quickly sought to pass legislation that increased the size of the Courts. This would provide him with leverage to pass legislation that supported his new deal legislation. It was achievable due to the 5-1 majority he held in Senate and the 4-1 majority held in the House. Suddenly, the court’s opinion changed and they began to deem social and economic legislation that was part of  New Deal agenda as constitutional. It is still disputed why this change happened so drastically, but FDR ability to coerce the courts resulted in a drastic increase in his general power. While the prior example does not reach the same extent of judicial consolidation that Varol points out through Turkey’s use of military court packing, it highlights the power the president holds to strengthen his own powers. FDR was able to leverage his position to pass legislation that was previously voted down. Furthermore, he did so within the same constitutional means that are provided to him by the ambiguities in Article 2. Subsequently, in 1939, FDR was also able to reorganize the Bureau of the Budget. This put the BOB in the executive office allowing for even greater presidential budgetary power.

The Ineffectiveness of the War Powers and Resolution Act

Collective action issues in Congress have also had a severe effect on the ability of Congress to disrupt presidential encroachment on the checks and balances that the Founders developed. One such case is that of the Wars Powers and Resolution Act. [5] The law was meant to curtail the president’s power as commander in chief by notifying Congress within 48 hours of placing troops in a foreign country. It also gives the President only 60 days with a 30 day redrawal period if Congress does not authorize the troops to be there. However, examples such as Reagan’s invasion of El Salvador, Clinton’s bombing of Kosovo, and Obama’s military action in Libya point to Congress’ inability to curtail presidential wartime powers. Each time the president failed to comply with different aspects of the Act, but the presidents saw no legal repercussions for this. Ultimately, the constitutionality of these acts goes to the court, and with split Congressional opinion, the Courts [6] have yet to turn down presidential decision in these cases. This act was supposed to limit the president’s power as commander and chief. However, it has done very little to dampen his power.

Fears may have come true…

The institution of the presidency has expanded to new levels in recent years allowing for a very powerful executive branch. In an era of extreme polarization, a strong executive is able to dominate the political realm as his limits are lessened. Consequently, the fears of many of the Founding Fathers seem to have come true. Interestingly, nearly 250 years after the writing of the constitution, their view that this president may become a unbound monarch has yet to surface. Yet, the power of the executive today goes much beyond what the Founders expected. Varol’s idea of stealth authoritarianism is complex and interesting, and it has been seen in American politics for many years. The extent to which the executive branch increase in power will spillover into more undemocratic or authoritarian practices has yet to be seen. However, the fears of the Anti-federalist may be coming to fruition as the centralization of power under one leader seems to place limits on democracy and make the prospects of an authoritarian-like regime more possible.

Academic Sources:

[1] Clinton, George. 1787. Letters of Cato: IV & V. New York Journal.

[2] Varol, Ozan. 2015. Stealth Authoritarianism. Iowa Law Review. 100(4): pp. 1673- 1742. Parts I, II and III.

[3] U.S. Constitution. Amend. 2, III.

[4] Skowronek, Stephen. 1994. The Presidents in Political Time. Cambridge University Press.

[5] 2007. War Powers. The Library of Congress.

[6] Greenblatt, Alan. 2011. Why the War Powers Act Doesn’t Work. National Public Radio.

Photo by Bruce Plante. Trump the King. Creative Commons Zero License.