The Runaway PresidencyNext on the Ervin agenda stands the restoration of congressional control over something it has thought it had anyway—the power of the purse. This means a solution of the problem of presidential impoundment. Impoundment existed before Nixon, but no previous President used it to overturn statutes and abolish programs against congressional will. For Nixon, impoundment is a means of taking from Congress the determination of national priorities. The courts have been more willing to grasp the nettle of impoundment than they were, at least at the start, in the case of executive privilege. In decision after decision this year, judges have declared one aspect after another of the impoundment policy illegal. No judge has accepted Nixon's claim that he has a "constitutional right" not to spend money voted by Congress. One judge calls his use of impoundment "a flagrant abuse of executive discretion." "It is not within the discretion of the Executive," says another, "to refuse to execute laws passed by Congress but with which the Executive presently disagrees." The decisions are, however, as they should be, constructions of specific statutes and stop short of proposing a general solution to the impoundment controversy. Though the courts have rallied splendidly, it is not really very satisfactory to have to sue the executive branch in every case in order to make it carry out programs duly enacted by Congress. But Congress itself has found it hard to make a stand on the Constitution. For Nixon has changed the issue with some success from a constitutional to a budgetary question. Impoundment, in other words, is alleged as the only answer a fiscally responsible President can make to insensate congressional extravagance. Sam Ervin derides this proposition. "Congress," he says, "is not composed of wild-eyed spenders, nor is the President the embattled crusader against wasteful spending that he would have you believe." The figures bear Ervin out. Congress, for example, cut more than $20 billion from Administration appropriation requests in Nixon's first term. Congress and the presidency roughly agree on the amount of money government should spend but disagree, as Ervin puts it, "over spending priorities and [the President's] authority to pick and choose what programs he will fund." Impoundment, says Ervin, has to do not with the budget but with the separation of powers. It is a political fact, fully recognized by Ervin, that anti-impoundment legislation will have to be accompanied by new evidences of congressional self-control in spending. Ervin is personally a budget-balancer anyway. So his impoundment bill includes a spending ceiling. The bill, as passed by the Senate in 1973, also has certain eccentricities for a constitutional fundamentalist. After a clear statement in Section 1 that impoundment is unconstitutional, subsequent sections say that nevertheless the President is authorized to commit this unconstitutional act for periods up to seventy days. Thereafter impoundments not covered by the anti-deficiency acts (which permit the executive to impound funds not required to achieve the purpose of a statute) must cease unless Congress specifically approves them by concurrent resolution. The House, on the other hand, is quite willing to let impoundments stand unless specifically disapproved by one house of Congress. Both bills legitimize impoundment; but, where the House would place the burden on Congress in each case to stop impoundment, Ervin would place the burden on the President in each case to justify impoundment. VI In one area after another, with the concealed passion and will of a deceptively relaxed personality, Ervin is moving to restore the balance of the Constitution by cutting the presidency down to constitutional size. However, his is the Constitution not of Abraham Lincoln but of ex parte Milligan. "What the framers intended," he says, "was that the President...should be merely the executor of a power of decision that rests elsewhere; that is, in the Congress. This was the balance of power between the President and Congress intended by the Constitution." The "ultimate power," Ervin says, is "legislative." It is hard to know how literally to take the Ervin scheme. If it sounds at times like an effort to replace presidential government by congressional government, it must be remembered that the Ervin proposals have been provoked by an attempt to alter the nature of the system. Ervin and his colleagues are fighting to protect Congress from the plebiscitary presidency, not to frustrate the leadership of a President who recognizes his accountability to Congress and the Constitution. Yet, if taken literally, the Ervin scheme is a scheme of presidential subordination. Where presidential abuse of particular powers has harmed the country, those powers are now to be vested in Congress. Pursued to the end, the Ervin scheme could produce a national polity which would be almost as overbalanced in the direction of congressional supremacy as the Nixon scheme is in the direction of presidential supremacy. The Ervin counterattack thus runs the risk of creating a generation of weak Presidents in an age when the turbulence of race, poverty, inflation, crime, and urban decay is straining the delicate bonds of national cohesion and demanding, quite as much as in the 1930s, a strong domestic presidency to hold the country together. For Sam Ervin is of the pure Jeffersonian school, like the old Tertium Quids who felt that Jefferson and Madison, in building up the presidency and seeing the national government as an instrument of the general welfare, had deserted the true faith. The pure Jeffersonian doctrine was a witness rather than a policy, which is why Jefferson and Madison themselves abandoned it. The pure Jeffersonian idea of decentralized power receded in the course of American history because local government simply did not offer the means to attain Jeffersonian ends. In practice, pure Jeffersonianism meant a system under which the strongest local interests, whether planters, landlords, merchants, bankers, or industrialists, consolidated their control and oppressed the rest; it meant all power to the neighborhood oligarchs. Theodore Roosevelt explained at the start of the twentieth century why Hamiltonian means had become necessary to achieve Jeffersonian ends, how national authority was the only effective means of correcting injustice in a national society. "If Jefferson were living in our day," said Wilson in 1912, "he would see what we see: that the individual is caught in a great confused nexus of complicated circumstances, that . . . without the watchful interference and of the government there can be no fair play." And, for the first Roosevelt and for Wilson, as for their joint heir, the second Roosevelt, national authority was embodied in the presidency. This has not been a bad thing for the republic. It is presidential leadership, after all, that brought the country into the twentieth century, that civilized American industry, secured the rights of labor organization, defended the livelihood of the farmer. It is presidential leadership that has protected the Bill of Rights against local vigilantism and natural resources against local greed. It is presidential leadership, spurred on by the Supreme Court, that has sought to vindicate racial justice against local bigotry. Congress would have done few of these things on its own; local government even fewer. It. would be a mistake to cripple the presidency at home because of presidential excesses abroad. History has shown the presidency to be the most effective instrumentality of government for justice and progress. Even Calvin Coolidge, hardly one of the more assertive of Presidents, said, "It is because in their hours of timidity the Congress becomes subservient to the importunities of organized minorities that the President comes more and more to stand as the champion of the rights of the whole country." The scheme of presidential subordination can easily be pressed to the point of national folly. But it is important to contend not for a strong presidency in general, but for a strong presidency within the Constitution. The presidency deserves to be defended on serious and not on stupid points. Watergate has produced flurries of near hysteria about the life expectancy of the institution. Thus Charles L. Black, Jr., Luce Professor of Jurisprudence at the Yale Law School, argues that, if Nixon turned over his White House tapes to Congress or the courts, it would mean the "danger of degrading or even destroying the Presidency" and constitute a betrayal of his "successors for all time to come." The republic, Black says, cannot even risk diluting the "symbolism" of the office lest that disturb "in the most dangerous way the balance of the best government yet devised on earth"; and it almost seems that he would rather suppress the truth than jeopardize the symbolism. Executive privilege is not the issue. No Presidents cherished the presidency more than, say, Jackson or Polk; but both readily conceded to Congress the right in cases of malversation to penetrate into the most secret recesses of the executive department. Nor, in the longer run, does either Ervin's hope of presidential subordination or Black's fantasy of presidential collapse have real substance. For the presidency, though its wings can be clipped for a time, is an exceedingly tough institution. Its primacy is founded in the necessities the American political order. It has endured many challenges and survived many vicissitudes. It is nonsense to suppose that its fate as an institution is bound up with the fate of the particular man who happens to be President at any given time. In the end power in the American order is bound to flow back to the presidency. Congress has a marvelous, if generally unfulfilled, capacity for oversight, for advice, for constraint, for chastening the presidency and informing the people. When it really wants to say no to a president, it has ample means of doing so; and in due course the President will have no choice but to acquiesce. But it is inherently incapable of conducting government and providing national leadership. Its fragmentation, its chronic fear of responsibility, its habitual dependence on the executive for ideas, information, and favors—this is life insurance for the presidency. Both Nixon and Ervin are wrong in supposing that the matter can be settled by shifting the balance of power in a decisive way to one branch or the other. The answer lies rather in preserving fluidity and re-establishing comity. Indeed, for most people—here Ervin is a distinguished exception—the constitutional and institutional issues are make-believe. It is largely a matter, as Averell Harriman says, "of whose ox is getting gored: who is in or out of power, and what actions either side may want." When Nixon was in the opposition, there was no more earnest critic of presidential presumption. Each side dresses its arguments in grand constitutional and institutional terms, but their contention is like that of the two drunken men described long ago by Lincoln who got into a fight with their greatcoats on until each fought himself out of his own coat and into the coat of the other." VII What is required is, in Herbert Wechsler's ase, a set of neutral principles—principles, that is, that are not shaped in response to a particular situation but work all the time, transcending any particular result involved. The supreme neutral principle, as vital in domestic policy as in foreign policy, is that all great decisions of the government must be shared decisions. The subsidiary principle is that if the presidency tries to transform what the Constitution sees as concurrent into exclusive authority, it must be stopped; and if Congress tries to transform concurrent into exclusive authority, it must be stopped too. If either the presidency or Congress turns against the complex balance of constitutional powers that has left room over many generations for mutual accommodation, then the ensuing collision will harm both branches of government and the republic as well. Even together, Congress and the presidency are by no means infallible; but their decisions, wise or foolish, at least meet the standards of democracy. And, taken together, the decisions are more likely to be wise than foolish. All Presidents affect a belief in common counsel, but most after a time prefer to make other arrangements. Still, the idea is right, and the process of accountability has to begin inside the President himself. A constitutional President can do many things, but he has to believe in the discipline of consent. It is not enough that he personally thinks the country is in trouble and genuinely believes he alone knows how to save it. In all but the most extreme cases, action has to be accompanied by public explanation and tested by public acceptance. A constitutional President has to be aware of what Whitman called "the never-ending audacity of elected persons" and has to understand the legitimacy of challenges to his own judgment and authority. He has to be sensitive directly to the diversity of concern and conviction in the nation, sensitive prospectively to the verdict of history, sensitive always to the decent respect pledged in the Declaration of Independence to the opinions of mankind.
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