Presidential <i>Rights</i>?
This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.
“Last week’s news from Washington: A dysfunctional Congress managed to function just long enough to bludgeon President Obama into ceding his prerogative to enter into an executive agreement with Iran regarding its nuclear program. That’s unfortunate. I wish the president had had the votes to hang tough on this important right . . .”
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Those sentences are the opening of an op-ed piece in this morning’s Times in respect of the dwindling presidency. The author, Steven Rattner, reckons that Congress has been violating President Obama’s rights. That is, his rights as president. “I wish the president had had the votes to hang tough on this important right,” he writes of the agreement President Obama seeks with Iran. Mr. Rattner seems to think the making of such an agreement is a right. Maybe the divine rights of presidents.
But what rights does a president have? Where would they be enshrined? The way the Times configures this question strikes us as disconnected. America put paid the Divine Right of Kings long ago. The Constitution, so near as we can decipher, neglects to prohibit the Congress from interfering with any “rights” of the president, save for those singled out in the Constitution as belonging to the rest of us as well — religion, speech, petition, peaceable assembly, and newspaper work.
The Presidency is created in Article Two of the Constitution. What it grants the president is powers and duties. He “shall be Commander in Chief of the Army and Navy”; he “shall have the Power to Grant Reprieves and Pardons.” He “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties.” He “shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient.”
It turns out there are 1,000 words in Article Two, and the words “right” or “rights” aren’t among them. The president, as president, has no “rights.” Just powers and obligations. Mr. Rattner goes so far as to tally the number of agreements made by recent presidents. He discovers that Mr. Obama is lagging in the agreement line; at the current rate he’ll be lucky to finish his presidency with half the number of agreements inked by either President George W. Bush or William Clinton.
Mr. Rattner attributes this demise to an assault on the presidential authority that dates to Vietnam, Watergate, and 1970s, when fears of an imperial presidency were voiced by Arthur Schlesinger Jr. The central act in that drama was the war powers resolution of 1973, via which Congress attempted to curb presidential war making. It was endorsed by such papers as the New York Times, which called it a “welcome sign” that Congress was “determined to preserve its independence and authority.
How was the Times supposed to know that two generations later Barack Obama would be president? And, for that matter, that America would have the chance to pave the way for Iran to get an A-bomb to use against Israel? Let us not get caustic. The fact is that there is a whole field of constitutional theory related to legislative inaction. In foreign affairs, according to one paper we read, the Supreme Court will “routinely” infer legislative approval of executive practices where “Congress has consistently failed to object.”
No wonder Congress has reacted to the prospect of an agreement with the Iranian mullahs by crying bloody murder. It wants to mark precisely the fact that presidents, in contradistinction to kings, do not have rights. It wants to remind that presidential powers are enumerated. It wants to underscore that there is no enumerated power to make, absent ratification by two-thirds of the Senate, an agreement with a foreign government. And it clearly intends to assert its own enumerated legislative rights … pardon us, powers.