Executive & Legislative

By Hugh Sidey

Washington used to get a good chuckle from a gag about life in the White House with Dick and Pat Nixon. On a typical evening in the mansion, the phone rings and the caller asks the President what he is doing. Answers Nixon: "I'm just sitting here reading the Constitution, and Pat is knitting an American flag."

It is doubtful that Pat Nixon ever knit the flag, but the pervasive involvement of every modern President in interpreting the powers granted by the U.S. Constitution is now a hard and often bruising fact of life. If a President does not actually curl up by the fire at night to ponder his copy of the Constitution, in all likelihood he has read some of its phrases during the day and confronted its words in the rush of events.

Presidential leadership has always required the use of a good deal of energy in defining actual separation of powers and contending for rights at the boundaries of authority. When the nation was developing in abundance and isolation, arguments over power were almost always overshadowed by the great progressive surges of the people. Now, with society more crowded and complex, contention over the authority to act often cramps creative leadership.

"It is said that powers are separated to preserve liberties. But separation can also destroy liberties," writes Louis Fisher, a specialist in American national government in the Library of Congress. "The framers of the American Constitution did not want a political system so fragmented in structure, so divided in authority, that Government could not function."

The major arguments have always taken place between Congress and the White House, but now special interests also use the courts to nibble at Executive power. Environmentalists filed suit in 1971 to prevent Nixon from conducting an underground nuclear test on Alaska's Amchitka Island. The Supreme Court ruled 4 to 3 in the President's favor, but the battle left a bitter residue. Patrick Buchanan, then a White House aide, recalls asking Nixon what he would have done had the court gone against him. The President's angry response: "I was going to fire it anyway." That, perhaps, was a signal of troubles to come in Watergate, of Nixon's dark impulses to force the system to bend to his will.

The media add another dimension to the struggle. Their questions about presidential actions, particularly in intelligence areas, frequently trigger a constitutional debate about power. No matter what the truth of the accusations, the man in the Oval Office must always take time out to answer them. The imperatives of media politics have required Chief Executives to yield more ground than they considered wise or necessary.

The size of today's Government has become a problem in itself. There are 20,000 people now serving the Congress, virtually a separate government, which simply by political weight intrudes more and more into Executive matters. The White House, responding to that gauntlet, has 1,600 people on its roster. The thing they all do best these days is accuse one another and then argue.

Griffin Bell, Attorney General for Carter, once trudged to the Hill to try to talk House Speaker Thomas O'Neill into discouraging the mushrooming use of the legislative veto. Bell considered this proviso unconstitutional, as the Supreme Court subsequently ruled, but at the time, Capitol Hill Democrats led by O'Neill seemed more eager to fight than be right. "They almost wanted to be co-President," Bell recalled the other day. "If a President is faithful to his oath, he must resist."

A moment when a satisfactory balance existed between the presidency and the forces outside that seek to diminish it has rarely if ever occurred. Thomas Jefferson was worried about the "tyranny of the legislature." By 1861, Executive Branch power was at a peak in the hands of Abraham Lincoln, only to slip from the grasp of indifferent and incompetent Presidents until Scholar Woodrow Wilson could suggest in 1885 that Congress had become the dominant part of Government. By the time Wilson won the White House, though, the U.S. was assuming international responsibilities that gave new importance to the presidency. That power was enlarged by Franklin Roosevelt in the Great Depression and World War II.

Lyndon Johnson, who reached political maturity under Roosevelt, was very much attuned to constitutional battles. The supreme legislator of this century as a Senator, L.B.J. noticeably changed his tack when he got in the White House. "I'm not going to leave this job weaker than when I came in," he told his counsel, Harry McPherson. But for all his muscle flexing, Johnson chose to retire rather than run for re-election in the teeth of the Viet Nam protests. Six years later, Nixon would resign, swept from power by public disapproval and Congress's instigation of impeachment proceedings. The Executive arrogance and excess in Viet Nam and Watergate spawned legitimate concerns throughout Washington, producing a city that remains inordinately devoted to scrutinizing and humbling strong leaders.

Ronald Reagan is no constitutional scholar. But he is a creation of the conservatism of the 1950s, which was founded on a new constitutional argument: that liberalism had gone beyond written authority, and the courts had allowed it. Reagan read a lot from The Federalist in those years and developed a special fondness for many of the Constitution's tenets. Speechwriter Tony Dolan once remarked to the President that federalism "promotes" creativity in a society. "No," Reagan cautioned him, "federalism permits creativity."

Reagan the activist surprised his adversaries in his first years, and he extended the reach of the Commander in Chief throughout the world, only to run afoul of something called the Boland amendment in the Iran-contra affair. Through the summer the constitutional issue of just how much war a President can make without congressional approval will be argued and reargued.

The tragedy is that in the contentious climate of Washington, the struggle becomes the end in itself, the media relishing the daily bombast, the Congress determined to trim the presidential wings, the President dedicated to preserving his rights of passage. Important issues get slighted.

To Roger Porter, who served as a White House aide in the Ford and Reagan Administrations, the point was brought home in Reagan's first term when Secretary of Energy Donald Hodel told the Cabinet he would like to reduce the Office of Fossil Energy to 591 people but was stymied because Congress had decreed the office could not be shrunk below 754. "The efforts by Congress to micromanage the Executive business are most unfortunate," says Porter, who now teaches a course on the presidency at Harvard. It makes for good theater in the electronic age but, in Porter's view, the natural power of the presidency is being squandered and the future of the U.S. held hostage by endless argument.

Perhaps the remedy is for all the contenders to curl up for a quiet night with the Constitution. Some years ago, Supreme Court Justice Robert Jackson put it well. "While the Constitution diffuses power the better to secure liberty," he wrote, "it also contemplates that the practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity." Unchecked and unbalanced, the three sources of power may pull too much apart.