White House photo by Eric Draper

President George W. Bush draws fire from many quarters. That’s hardly surprising: Presidents who surround themselves with pomp and ceremony, or who claim new or controversial powers, always provoke strong criticism. But the intensity of the criticism directed at Bush is explained in part by its roots—a fear that the president sometimes exhibits monarchial or imperial tendencies. The lavish fanfare surrounding Bush’s January inauguration sparked howls of protest, as did the revelation that Bush’s lawyers believed that the president could, as commander in chief, unilaterally suspend U.S. treaty obligations and statutes, including one banning torture. John Dean, once a lawyer in the famously power-hungry Richard Nixon administration, has derisively said Bush’s reign “may be the most imperial Presidency our history has yet seen.” Bush is not, however, the first U.S. president to aggressively expand the authority of the Oval Office. Charges of presidential lawlessness date back to the first presidency.

George Washington and his contemporaries faced the vital question of how the Constitution’s vague provisions on executive powers should be interpreted. James Madison argued that the president’s powers were limited to those enumerated in the Constitution and those delegated to him by congress. These enumerated powers included the powers of commander in chief, the power to enter treaties (with the Senate’s consent), the power to receive ambassadors, and little else. Alexander Hamilton argued that the president, as chief executive, had all the powers that an executive in those days had—and executives in those days were kings—except where the Constitution said otherwise. Although the Constitution gave some significant powers to congress, including the power to appropriate funds and to declare war, Hamilton’s formulation ensured that the president had dominant authority over foreign affairs.

Washington exercised Cincinnatus-like restraint throughout his career; nonetheless, as president he sided with Hamilton. As a result, he was not just the first president, but also the first strong president—and the first to be accused of usurping the powers of congress. He was also the first great president. And there have been several other great presidents who also claimed (and exercised) expansive presidential powers, and were called usurpers by their critics. Abraham Lincoln won the Civil War and freed the slaves, but he also suspended the writ of habeas corpus. Theodore Roosevelt introduced the United States to the world stage, but he also asserted new presidential powers to use force and negotiate treaties without congressional involvement, especially in Panama and elsewhere in Latin America. Franklin D. Roosevelt led the United States through the Great Depression and World War II, but he also tried to pack the Supreme Court with his own nominees and broke the norm that confined presidents to two terms in office. By contrast, a dozen or more milquetoast presidents both abjured imperial power and exercised what power they acknowledged in as undistinguished a manner as possible.

So should we welcome or fear the imperial presidency? To answer this question, I conducted a very unscientific empirical study. First, I used presidential ratings compiled by Prof. James Lindgren of Northwestern Law School. I used the mean scores assigned to the presidents by a politically balanced group of political scientists, historians, and law professors, with 1 going to the worst and 5 to the best.

Second, I classified all of the presidents as either “imperial” or “republican” according to whether they, in word or deed, adopted an expansive or limited view of presidential power. (To classify presidents as imperial or republican, I focus on whether the president strained against existing constitutional understandings, and I do not try to use an absolute measure.) To minimize my own biases, I used a standard textbook on the presidency, Sidney M. Milkis and Michael Nelson’s The American Presidency, and relied on the authors’ conclusions about whether a particular president sought to expand his power, or seemed satisfied with what he had. For example, I classify Dwight D. Eisenhower as republican because he was uninterested in expanding presidential power; and I classify Andrew Johnson as imperial, even though he was perhaps the weakest president ever, because he fought hard against the efforts of an ambitious congress to curtail the powers of the presidency.

The table demonstrates the pattern. Imperial presidents perform better than limited-power republican presidents. Average presidents are found in both categories, but within the extremes—the great and the terrible—there are only two modern exceptions. Eisenhower was a good president who did not try to expand his power, and Nixon was a bad president who did. Indeed, Nixon alone is probably responsible for the modern view that the imperial presidency is the worst kind of presidency. But if a constitutionally weak presidency prevents another Nixon, it also prevents another FDR or Lincoln. Although once in a while an Eisenhower could come along, most of the time we would have to make do with a Jimmy Carter, a Gerald Ford, or a Millard Fillmore. Such a state of affairs would hardly be appealing.

This argument, of course, is open to several objections. First, the character of the president might explain more than the power of the presidency. Lincoln and FDR might have been great presidents even if they couldn’t have exercised as much power as they did. But it seems just as likely that a limited office, with limited powers, would not have attracted a person with a powerful character; or else, such a person would have overreached and been blocked by other institutions such as congress and the courts.

Second, the ratings themselves may reflect the scholars’ emphasis on heroic traits rather than actual contributions to the welfare of the nation. A weak presidency implies more power is invested in institutions such as congress, state governments, and courts. However, it’s hard to find a single historical example in which these institutions produced great achievements during a weak presidency. In contrast, the most ambitious and successful legislation—including the Social Security Act of 1935 and the Civil Rights Act of 1964—has almost always been propelled by an imperial president.

Finally, many are concerned that the great imperial presidents set the stage for the awful ones. The familiar argument is that FDR established precedents that would be used by Nixon. But FDR also established precedents that would be used by Truman, Eisenhower, and Reagan.

None of this is to say that presidents should be unconstrained. They would then be dictators. Popular elections, a two-term limit, congressional participation in ordinary legislation, and judicial limitations are all good and necessary, and no one today would object to them. But much of the structure of the presidency—especially in foreign affairs—is hampered by 18th century restrictions that were motivated by fears of monarchy. By pushing against these restrictions, Bush is not bolstering a dangerous and all-powerful executive as much as he is further modernizing the office of the presidency and preparing it for the challenges ahead. Bush’s critics should argue with the way the president is using his powers, not the fact that he is expanding them.