Most people who are leadership experts are like most people who are not. We focus or even fixate on the leader – often to the exclusion of everyone and everything else. But yesterday’s decision by the Supreme Court of the United States to expand presidential power was a stark reminder that leadership is not a person. It is a system! A system that consists of three parts, each of which is of equal importance: Part I is the leader. Part II are the followers. And part III is the context within which the leader and the followers are situated.
Yesterday’s court decision changed the context within which presidential power is exercised. By giving the chief executive wider legal leeway – specifically, here, giving former President Donald Trump substantial immunity from charges that he tried to overturn the results of the 2020 presidential election – it expanded the power of the executive.
If you believe in a very strong presidency this is a good thing. If you do not – if you are persuaded of the virtues of checks and balances, one branch of government no more powerful than the other two – this is not a good thing. To give you a sense of the exceedingly strong dissent, a short quote from Sonia Sotomajor, one of three liberal justices that remain on the nine-member court: “Today’s decision to grant former President’s criminal immunity reshapes the institution of the Presidency. It makes a mockery of the principle, foundational to our Constitution and system of government, that no man is above the law.” (Italics mine.)
Among the framers of the American constitution no single issue was as divisive as the amount of power granted the American president. On the one side were those like James Madison who strongly believed in power being equally distributed among the three branches: the executive, legislative, and judicial. On the other side were those like Alexander Hamilton who was concerned that without a strong executive the new federal government, composed of 13 previously independent colonies, would not hold.
No accident then that it was Hamilton, known to favor a muscular presidency, who penned paper number 69. The Federalist Papers were a collection of 85 articles and essays written by Madison, Hamilton, and John Jay, published in the late 1780s. Their purpose was propaganda – to persuade voters of the newly created United States to ratify the proposed Constitution. If there was a single hook on which the authors hung their case it was the American presidency. It was to assure voters their president would not be a king – would in no important way resemble the King of England against whom the bloody Revolutionary War had only recently been fought.
To this end Hamilton argued in paper number 69 that the proposed American presidency bore no liking to the detested British monarchy. He noted, for example, that unlike the king the president was to be elected and only for four years. That unlike the king the president was vulnerable to being impeached. That unlike the king the president did not have absolute power to enact or overturn a piece of legislation. That unlike the king the president did not have absolute power over the militia. That unlike the king the president would need the advice and consent of the Senate before signing a treaty.
America’s Founders and Framers would be stunned to find that well over two centuries after country’s constitution was ratified it is still being fiercely fought over. For we should make no mistake. The decision issued yesterday by the nation’s highest court addresses the same question as at the center of the Constitutional Convention. Is the president a king in that he is – as was George III – above the law?