RISE OF EMPIRE: THE ANCIENT DESIGN: II
The first requisite of Empire is:
The executive power of government shall be dominant.
It may be dominant originally, as in the days of hereditary kingship, or it may come to be dominant by change, as when the Roman republic passed under the rule of the Caesars.
As now we use the word executive it means much more than the Constitution intended. What the Constitution created was a government of three coequal powers, namely (1) the Congress to make the laws (2) a President to execute the laws, and (3) a Supreme Court to construe the laws according to the Constitution. The Constitution was the supreme law, binding alike the Congress, the President and the Supreme Court itself. Each of these three powers could check the other two. This arrangement came to be called the American system of checks and balances.
The function of the Congress was legislative, the function of the President was executive and the function of the Supreme Court was judicial.
The President might veto a law enacted by the Congress, but by a two-thirds vote the Congress could pass it again over his veto and then it stood unless the Supreme Court said it was unconstitutional.
You will ask how that could work. If three coequal powers could annul one another's work, what would save the government from coming to an impasse?
What you are asking is, "Where in that triad was the sovereign power that could say the final word?" The answer is, "Nowhere." Then you may ask, "Is not sovereignty a vital attribute of government?" It certainly is. Unless somewhere there is the sovereign power to say the final word no government can long endure.
The founders gave more thought to that one problem than to all the others combined. They had to put sovereignty somewhere and they wished to make it safe, that is, safe beyond seizure. They thought it would not be safe in the hands of the President, nor in the hands of the Congress alone, and naturally it did not belong to the Supreme Court, for that was a judicial body. The solution was to put it in the hands of the people.
Only the people could say the last word. If they really wanted a law which the Supreme Court said was unconstitutional they could have it by changing the Constitution, and that they could do by a peaceable procedure set forth in the Constitution itself. For example, the Supreme Court said an income-tax law that had been enacted by Congress and signed by the President was unconstitutional. But the people wanted that law. They amended the Constitution. Then the Congress enacted another income-tax law and the Supreme Court was obliged to say it was Constitutional. To amend the Constitution takes time; but that also was intended, the idea being to make people reflect on what they are doing.
So it worked, and worked extremely well, for the Republic. It would not work for Empire, because what Empire needs above all in government is an executive power that can make immediate decisions, such as a decision in the middle of the night by the President to declare war on the aggressor in Korea, or, on the opposite side, a decision by the Politburo in the Kremlin, perhaps also in the middle of the night, to move a piece on the chess board of cold war.
For a century and a half the system of checks and balances worked like a self-correcting mechanism. Among the three coequal powers there was never a perfect balance; but any imbalance soon corrected itself. At one time there would be a very strong Supreme Court, as in the days of John Marshall; then again there would be a strong President and a weak Congress, or a strong Congress and a weak President.
The Federal income-tax law of 1914 gave the government unlimited access to wealth and, moreover, power for the first time to levy taxes not for revenue only but for social purposes, in case there should arise a popular demand for redistribution of the national wealth. World War I immediately followed. Looking backward we can see that these two events marked the beginning of a great rise in the executive power of government. It was slow at first, an imbalance such as had corrected itself before and might do so again. Indeed, during the 1920's it did seem to be correcting itself. Then came in rapid succession (1) the Great Depression (2) the revolutionary Roosevelt regime, and (3) World War II, all within an arc of twenty years.
In those twenty years the sphere of Executive Government increased with a kind of explosive force. Congress received from the White House laws that were marked "must." Its principal function was to enact and engross them. The part of the Supreme Court was to make everything square with the Constitution by a liberal reinterpretation of its language. The word executive came to have its new connotation. For all the years before when you spoke of the executive power of government you meant only the power to execute and administer the laws. Henceforth it would mean the power to govern.
A further very subtle change was taking place. Only a few years ago if you had asked such a question as, "Who speaks for the people?" or "What organ of government utters their sovereign will?" the answer would have been "The Congress of the United States." Certainly. That was what the Congress was for.
Now it is the President, standing at the head of the Executive Government, who says: "I speak for the people," or "I have a mandate from the people." Thus the man who happens to be the embodiment of the executive principle stands between the Congress and the people and assumes the right to express their will. There is more to this. Now much more than Congress the President acts directly upon the emotions and passions of the people to influence their thinking. As he controls Executive Government, so he controls the largest propaganda machine in the world, unless it be the Russian machine; and this machine is the exclusive possession of Executive Government. The Congress has no propaganda apparatus at all and continually finds itself under pressure from the people who have been moved for or against something by the ideas and thought material broadcast in the land by the administrative bureaus in Washington. Besides the use they make of the Government Printing Office, these bureaus maintain 133 printing plants and 256 duplicating plants of their own. A further very subtle technique of propaganda is the intimate and confidential briefing of editors, writers, educators and selected social groups on the government's point of view.
One of the task forces of the Hoover Commission looked at the government's propaganda machine and said:
"Every agency of government maintains its public relations staff. . . . Congress has been alert for several years to the organized pressure-group activities which are sponsored, supported and stimulated by the administrative agencies themselves. After fifteen months' work, Congressman Harness summarized his conclusions on government pressure-groups in these words: 'Everyone in Congress is keenly conscious of the tremendous power of this government propaganda machine, for he comes in direct contact with it every day. . . . Whether the immediate purpose of government propaganda is good or bad, the fact remains that individual liberty and free institutions cannot long survive when the vast powers of government may be marshalled against the people to perpetuate a given policy or a particular group of office holders. Nor can freedom survive if all government policies and programs are sustained by an overwhelming government propaganda.' "
On "Our Most Dangerous Lobby," Representative Christian A. Herter wrote: "Our Federal bureaucracy fought, bureau by bureau, every Congressional move to curb its innate urge to expand. Backed by its vast tax-supported propaganda machine and working through jobholders, supported also by well-meaning but misinformed citizens, it mustered almost overwhelming pressure for its continued growth. As weapons, it used distortion, misrepresentation and outright chicanery."
Senator Douglas recently said there were three parties in Washington—a Democratic party, a Republican party and a Government party representing the departments, agencies and bureaus of Executive Government, and added that no pressure group was "more persistent and skilled in the technique of getting what it wants."
It was not only that as Executive Government proliferated the authority and prestige of Congress declined; a time came when Congress realized that a fourth entity called Government, with a solitary capital "G," was acting in a dimension of its own with a force, a freedom and a momentum beyond any control of the law-making power. Moreover, it was a thing so totally vast, so innumerable in its parts and so apparently shapeless that there was nowhere a mind able to comprehend it. That was when, in 1947, the Congress asked former President Hoover to organize a commission to study it scientifically and make it intelligible.
Such was the origin of the Commission on Organization of the Executive Branch of Government, Herbert Hoover chairman, now commonly referred to as the Hoover Commission. It created twenty-four task forces, each with a personnel suited to its special task, altogether three hundred men and women. They spent sixteen months exploring and charting the domain of Executive Government. Some of it was jungle, some of it was lawless, here and there were little bureaucratic monarchies that seemed to have grown up by themselves; and yet every part of it was very much alive and exercised powers of government, touching the lives of the people.
The full report of the Hoover Commission was never published; its bulk was too repellent. You may find it all in the archives. A summary of it—hardly more than a description of the bare bones of Executive Government together with anatomical suggestions for a better articulation of them—just that, made a book of more than 250 pages.
The Commission said: "The executive branch is a chaos of bureaus and subdivisions.
"The gigantic and sudden growth of the executive branch has produced great confusion within the departments and agencies as well as in their relations to the President and to each other.
"At the present time there are sixty-five departments, administrations, agencies, boards and commissions engaged in executive work, all of which report to the President—if they report to anyone. This number does not include the independent agencies in their quasi-judicial and quasi-legislative functions.
"Some of these departments are larger than the whole government was twenty years ago.”
The Commission found in the domain of Executive Government more than thirty agencies engaged in lending money and public credit. (This number did not include social security and pension agencies.) In those more than thirty lending agencies the government had invested twelve and one-half billion dollars, and was obligated to invest nine billion more. Besides all that, the government was insuring more than eighty billion dollars of bank deposits, and had underwritten more than forty billion dollars of life insurance.
The Commission found that under the program called Grants-in-Aid the Federal government was paying two-fifths of the total cost of local government throughout the country and nearly one-sixth of the total cost of state government. "This/' said the Commission, "has enlarged the executive branch, requiring great expansion in many departments and the establishment of new administrative agencies. It has increased national taxes. And it has been responsible to some extent for the rapid development of that fourth area of government known as the regional area, serviced in large part by Federal regional agencies."
Few realize in how many ways these activities of Executive Government touch our everyday business of living. Recently a writer on Time Magazine was doing an article on influence-peddling at Washington, and it occurred to him to drop into the middle of it the following paragraph:
"A big department store, for example, has to deal with some twenty Federal agencies (not to mention a score of state and municipal ones). The Bureau of Internal Revenue checks its taxes, the alcohol tax unit approves its whiskey labels, the Bureau of Customs stamps its imports, the Department of Labor's wages and hours division inspects its working conditions, the National Labor Relations Board hears its labor disputes, the Social Security Administration collects unemployment insurance, the Federal Reserve System administers credit regulations, the National Production authority doles out scarce goods, the Securities and Exchange Commission patrols stock issues, the Federal Trade Commission scouts for mislabeling or deceptive advertising, the Post Office rules on parcel deliveries, the Selective Service Board makes passes at store executives and employees, the Interstate Commerce Commission rules on freight shipments, and if the store is hard up for capital the Reconstruction Finance Corporation has money to lend. In most of these departments, government agents have to make yes or no decisions on their own. The decisions often means hundreds of thousands of dollars to the government, to a corporation or to an industry. If one has a few friends in the right places, who could
ever draw the line between a legal and illegal favor?"
The Hoover Commission said: "Thousands of Federal programs cannot be directed personally by the President." Obviously not.
The result is Bureau Government, administered by bureaucrats who are not elected by the people.
In The Grandeur that was Rome, Stobart says that for a long time after the Republic had become an Empire a stout republican could still believe that he was governed by the Senate; yet little by little as a complete imperial bureaucracy was evolved the Senate sank into insignificance. It was really the bureaucracy of the imperial palace that governed the Roman world and strangled it with good intentions. The growth of the bureaucracy was both symptom and cause of the increasing power of the executive principle. The triumph of the system was the Edict of Prices, issued by Diocletian, fixing prices for every kind of commodity and wages for every kind of work.
The sad fact about the work of the Hoover Commission was that the necessity for Executive Government in all this new magnitude had to be assumed. That is to say, the Commission had no mandate to criticise the extensions of Executive Government in principle or to suggest that any of its activities might be discontinued. The limit of its assignment was to say how they might be organized for greater efficiency. More efficient government; not less government. An efficient bureaucracy, although it may cost less, is of course more dangerous to liberty than a bungling bureaucracy; and you may suppose that any bureaucracy, give it time and experience, will tend to become more efficient.
Aggrandizement of the executive principle of government takes place in several ways, mainly these:
(1) By delegation. That is when the Congress delegates one or more of its Constitutional powers to the President and authorizes him to exercise them. That procedure touched a very high point during the long Roosevelt regime, when an obliging Congress delegated to the President, among other powers, the crucial one of all, namely, power over the public purse, which until then had belonged exclusively to the House of Representatives, where the Constitution put it.
(2) By reinterpretation of the language of the Constitution. That is done by a sympathetic Supreme Court.
(3) By innovation. That is when, in this changing world, the President does things that are not specifically forbidden by the Constitution because the founders never thought of them.
(4) By the appearance in the sphere of Executive Government of what are called administrative agencies, with power to issue rules and regulations that have the force of law. This procedure also touched a high point in the Roosevelt regime. What it spells out is a direct delegation of legislative power by the Congress. These agencies have built up a large body of administrative law which people are obliged to obey. And not only do they make their own laws; they enforce their own laws, acting as prosecutor, jury and judge; and appeal from their decisions to the regular courts is difficult because the regular courts are obliged to take their findings of fact as final. Thus the Constitutional separation of the three governmental powers, namely, the legislative, the executive and the judicial, is entirely lost.
(5) By usurpation. That is when the President wilfully confronts Congress with what in statescraft is called the fait accompli—a thing already done—which Congress cannot repudiate without exposing the American government to the ridicule of nations. It might be, for example, an executive agreement with foreign countries creating an international body to govern trade, in place of the International Trade Organization Treaty which the Senate would probably not have approved. This use of executive agreements, which take effect when the President signs them, in place of treaties, which require a two-thirds vote of the Senate, is a way of by-passing the Senate. It raises a number of fine legal questions which have never been settled. The point is that the Constitution does not specifically forbid the President to enter into executive agreements with foreign nations; it provides only for treaties. In any case, when an executive agreement has been signed the Congress is very loath to humiliate the President before the world by repudiating his signature. Or again, it may be such a thing as going to war in Korea by agreement with the United Nations, without the consent of Congress, or sending troops to join an international army in Europe, by agreement with the North Atlantic Treaty Organization.
(6) Lastly, the powers of Executive Government are bound to increase as the country becomes more and more involved in foreign affairs. This is true because, both traditionally and by the terms of the Constitution, the province of foreign affairs is one that belongs in a very special sense to the President. There he acts with great freedom. It is only the President who can receive foreign ambassadors; it is only the President who can negotiate treaties. The limitations are two. The first one is that when he has signed a treaty it must be approved by a two-thirds vote of the Senate. This obstacle, as we have seen, may sometimes be avoided by signing with foreign countries executive agreements in place of treaties. The second limitation is that when the President appoints ambassadors to foreign countries they must be approved by the Senate; he may and does, nevertheless, send personal representatives on foreign errands. The restraining force of these two limitations is important only in the hands of a strong and hostile Congress. The controlling fact is that both the treaty-making power and the responsibility for conducting the country's foreign relations belong exclusively to the President; besides which, in both peace and war, he is the Commander-in-Chief of the Armed Forces of the United States. The point of putting that in the Constitution was to make civil authority supreme over the military power.
So much for the rise in the executive power of government to a colossal dimension, all in our own time. It is no longer a coequal power; it is the dominant power in the land, as Empire requires.
RISE OF EMPIRE: PROPERTIES OF EMPIRE: II
RISE OF EMPIRE: THE ANCIENT DESIGN: II