Can democracy survive George W. Bush?

Over the last five years or so, the expansion of presidential authority under the banner of a “war presidency” has amplified America's unilateralist behaviour that - in the eyes of many around the globe - signals the concurrent irrelevance of the will of the people and the demise of democracy. But how pessimistic should we really be?

Checks and balances

Even if the preamble to the Constitution indicates it is “We, the People” who are ultimately in charge of ourselves; and even if, as de Tocqueville maintains in his Democracy in America (1835), it is the people who occupy the seats of power, it is not without checks on itself.

The Constitution itself is the first limitation the American people submit to. For that wonderful document channels the popular will into a system of separated powers, each able to reign in the other.

This separation of power is built on the classic “trias politica” with congress occupying the legislative branch, the president and his administration occupying the executive branch, and the Supreme Court embodying the judicial branch.

Furthermore, each branch can actively intervene in the affairs of the other. Congress can curb the president's actions by refusing to accept a law, by starting impeachment procedures, not accepting nominations or not ratifying agreements. Congress also has the power to check the Supreme Court by changing the jurisdiction of existing courts, changing the number of (lower) federal courts and removing judges from office. Also, when the president nominates candidates for the Supreme Court, Congress needs to give its approval.

The president in turn can issue a veto against a congressional decision and can call the congress to meet in special sessions at will. He also appoints the federal judges.

Lastly, the Supreme Court has the power of judicial review, meaning they can nullify laws and actions taken by congress or the president if deemed unconstitutional.

It is this complementary system of elected representatives in separated bodies of power that are responsable for one another's actions which makes up the core of the American democratic system. The interrelations between the composite parts of such a system make for an almost organic whole that will naturally strive for balance. In theory. But has it always in practice?

De Tocqueville considered the presidency and the executive branch to be a naturally weak institution. America has no need for a strong central government and adminstration he says because: "The Americans have no neighbours and consequently they have no great wars, or financial crises, or inroads, or conquest to dread; they require neither great taxes, nor large armies, nor great generals, and they have nothing to fear from a scourge which is more formidable to republics than all these evils combined: namely, military glory."

It is ironic he should highlight the absence of physical threat, for it is precisely through the elimination of physical threat that the executive branch has managed to assert itself, expand its powers and override congressional authority.

In other words, it is in the military dimension that the debate over executive powers historically presents itself. Professors Calabresi and Yoo, in their extensive study of the unitary executive in American presidential history, quote Chief Justice Vinson as saying:

A review of executive action demonstrates that our Presidents have on many occasions exhibited the leadership contemplated by the Framers when they made the President Commander in Chief, and imposed upon him the trust to “take Care that the Laws be faithfully executed”. With or without explicit statutory authorization, Presidents have at such times dealt with national emergencies by acting promptly and resolutely to enforce legislative programs, at least to save those programs until Congress could act. Congress and the courts have responded to such executive initiative with consistent approval ...