Ivan Eland on the Rogue Presidency
2019-08-31 · Guest: — · 52:21
Bob Zadek and guest Ivan Eland discuss the evolution of the American presidency from the limited role intended by the Founders to a “rogue” institution. They explore how successive wars and national crises have allowed the executive branch to permanently seize powers from Congress, resulting in the erosion of civil liberties and the rule of law.
Topics: Executive Power, War Powers, Constitutional Law, Civil Liberties, Congress, History of WWI/WWII, 9/11, Habeas Corpus, AUMF
Speakers: Bob Zadek, Ivan Eland
The Deterioration of the American Republic [00:18]
Bob Zadek: Hello everyone, and welcome to the Bob Zadek Show, the longest-running live libertarian talk radio show on all of radio. Thank you so much for joining us this summer Sunday morning.
What in the world has happened to our form of government? We are, in many ways, the form of government that the Founders gave us in theory only, but not in practice. I dare say—and I’m not trying to be extremist, but I’m speaking, I think, from my heart and from my mind—that in many ways, we resemble the form of government our Founders worked so hard to give us the way the Russian system of government resembles a democracy. Yes, in Russia and other authoritarian-run countries, yes, there are elections. There are elections in Venezuela. There are elections in Cuba. There are elections in Russia. So, in theory, those countries are democracies with democratically elected leaders and members of their legislature. But of course, they are not in practice. They go through the motions, but not in practice.
Now, in no way, shape, or form am I equating our government, our system, to those that I mentioned. Of course I am not. However, the similarity between the theory of our form of government as given to us by the Founders and the practice—how it works on the ground day by day—the gap between the theory and the practice is wide and getting wider all the time. The balance of power is an imbalance of power. It is only a balance in theory. And that has permanent, profound effects upon every one of us who lives under this system.
And many of my guests have spoken about this, but only—only my guest this morning has solutions and can passionately and accurately describe the problem and the solution. With that introduction and with a big task in front of us of solving the problem, I’m happy to welcome back to the show Ivan Eland. Ivan is the Director of Defense Policy Studies at the Independent Institute. He spent 15 years working in Congress. He knows Congress inside and out. He knows defense policy inside and out. He now writes for the Independent Institute, an organization that I passionately follow, read, and attend their meetings. The Independent Institute is centered in Oakland, California, in the Bay Area, and they do just wonderful, wonderful work. Ivan has written a new book, War and the Rogue Presidency, subtitle: Restoring the Republic After Congressional Failure. Ivan’s book is important because he includes the “restoring” part. So it’s not just a polemic complaining about the system, but Ivan offers tangible and doable solutions. Ivan, welcome to the show this morning. And as I introduce you, your book, of course, focuses on the effect of the use of the word “war” in the transition from the government our Founders gave us to the government we are for the minute stuck with in 2019 America. Welcome to the show this morning, Ivan.
Ivan Eland: Thanks for having me on, Bob.
War and the “Ratchet Effect” on Government [03:00]
Bob Zadek: Now, Ivan, in your book, you trace—you do a wonderful job tracing the history of the change, of the deterioration, if you will, of the system of government our Founders gave us to the system of government in operation that we have in 2019 America, and how war has been so important in the process. Now, tell us about the relationship between the deterioration in your view and in my view of the operation of our government—the relationship of that to war. And first tell us what the deterioration is in your opinion, and how war has had so much influence on that process.
Ivan Eland: Well, war is a defining event in society, as we all know. Not only do people get killed, whether it’s domestically like the Civil War or overseas when America goes to war overseas, we also spend a lot of money. And also, there’s a lot of effects here at home even when you have overseas wars. And some of those are the concentration of power in the executive tends to do so. Now, sometimes that’s temporary, but it’s sort of a ratchet effect. You know, we go back to some other state, but it never gets completely back to where it was before the war. So it’s kind of a stairstep ratchet approach to this sort of thing.
Every time we have another war, it’s demonstrated the government gets into some other thing domestically because we have to regulate this or that to get war supplies, create war industries, etc. So this demonstrates—and some people benefit from it. So then they say, “Well, gee whiz, we could have the government regulate it during peacetime and we can still be as prosperous in our industry or whatever.” So there’s a lot of demonstration effect where the government goes into various places and people make money off of it. It’s not necessarily good for the country, it may be good for the war effort while the war is on, but then of course the effects linger over into peacetime.
And this started probably with the Spanish-American War for good. In the Civil War, we went up with the government, but then it was demobilized. In the 1900s, when you had a congressionally dominated government, it didn’t happen as much. But at the turn of the 20th century, in the Spanish-American War and World War I in particular, World War I was a watershed because the government really had great influence over the entire economy for the first time, even greater than during the Civil War. And of course, a lot of the functions became—when we had the next crisis, the Great Depression—they actually used the war model to battle the Great Depression, which had nothing to do with war but was merely…
Historical Examples: WWI and Beyond [08:31]
Bob Zadek: Ivan, give us some examples. Give us some examples, if you would, of the erosion of power or the increase in power of the government during World War I.
Ivan Eland: Well, here’s a really what seems like a mundane example, but it shows you how far the government reach went. Daylight Savings Time was created during World War I to save energy. And then, of course, this is an example of creeping government program. In the 1970s, when we had the oil embargo, Richard Nixon—because we had it six months, we had standard time six months of the year and Daylight Savings Time the other six months. But in the early 1970s with the oil embargo, Richard Nixon decided that, well, we really need to save even more energy, so we’re going to Daylight Savings Time for eight months and the standard time for four months per year. So, and it’s very odd because of course we had the Daylight Savings Time during the portion of the year where we really don’t need to save daylight because we have plenty of it, right? So, and the standard time, which was the original time, is now down to four months per year, which is the current status. So this is a program that started during World War I to save energy.
We also had the nationalization of railroads during that period. And of course, the modern-day Amtrak has sprung out of that idea that this was an area where the federal government should be involved, which of course it never was before. So we see things like this.
Bob Zadek: Don’t forget the income tax, Ivan. Don’t forget the income tax.
Ivan Eland: Yeah, well, the income tax originated with the Civil War, and then it went out of—it was declared unconstitutional, which it was. And then they brought it back in the late 1800s. And, you know, the income tax was brought in slightly before the war, but it became such a hit during the World War I because they could raise so much revenue from it that they never looked back after World War I. World War I really made the income tax. And then in World War II, the income tax was converted from a class tax on the upper classes to a mass tax, so they expanded the amount. And then they also started withholding, which of course was the government sort of defrauding its own citizens by not telling them how much tax they were paying. The withholding allows the government to make people focus on their refunds at the end of the year instead of focusing on their overall tax bill. And they also—it allows you to pay in installments, essentially. And of course, we all know how that works. When people pay in installments, they don’t—not only do they not realize how much they’re paying, but also it’s easier on them. They used to pay the taxes in a lump sum. So all these things happened. The income tax is a key program because it generated so much revenue that all sorts of different government programs can be funded with that. So that’s one of the bigger ones that has come along because of war.
Post-9/11 Erosion of Civil Liberties [12:27]
Bob Zadek: And all of these are wrapped—government gets the power, gets the public behind it, because how could anybody oppose steps that are designed to win a war? No one wants to lose a war. So Congress is enabled to enact measures during wartime that they might struggle or be unable to enact during peacetime.
And Ivan, of course, most important because it is recent and most of our listeners were alive then, was all of the loss of civil liberties which occurred after 9/11. All of that was also done in the days, literally the days after the events of 9/11. So tell us about what has happened that profoundly affected the relationship between Americans and our government after 9/11 and under the cover of the 9/11 events.
Ivan Eland: Yeah, well, this is also a consequence of war. 9/11 wasn’t the first emergency to constrain civil liberties. We had that in World War I and World War II as well, and the Vietnam War as well. But after 9/11, we had such things as the military commissions, which had been used since the Civil War but have been unconstitutional every time they use them. They used them in the Civil War, World War II, and then of course Bush brought them back after 9/11 to try terrorists, even though the civilian courts have a better record. As we’ve seen, the military commissions have been a disaster because we’re 18 years down the road from 9/11 and they’ve had very few trials through this military commission system. And it’s sort of a kangaroo-type system anyway. And the federal courts have been much more successful in the open trying terrorism suspects over that same period.
And of course, we also had torture, which was against international law and US domestic law when they did it. We had spying on citizens through the NSA, which was supposed to be prohibited and they did it illegally. And then of course Congress partially ratified it later on. And we had the suspension of Habeas Corpus by the President. Now, the Constitution says in Article I, which deals with Congress, that the Congress can basically suspend Habeas Corpus, but it had to be under really restrictive conditions: either an invasion or an insurrection. Of course, the 9/11 attacks were neither. And so even Congress would not have been authorized to suspend it. But Congress didn’t suspend it; George Bush did by saying that these detainees, no matter how heinous they were, could not challenge their detention. And of course, when you start doing that to terrorists, then later on these illegal and unconstitutional procedures start being used on regular citizens. And that sort of thing—so we always have to watch that. And so George W. Bush really opened the floodgates by a lot of these illegal and unconstitutional violations of civil liberties after the 9/11 attacks.
Bob Zadek: Ivan, I just wanted to mention that you mentioned military commissions. Those words almost seem benign. “Military commissions”—it sounds like a bunch of bureaucrats. In fact, the use of military commissions means the total abandonment of any protections of people accused of something. All of the due process protections that have been around in Western civilization since the Magna Carta—those are taken away by putting, in effect, the judicial process into the military. So those words that Ivan used are not benign bureaucratic words. They are really important. Habeas Corpus that Ivan used—Habeas Corpus, well, it’s a Latin phrase. People don’t really know what it means. Habeas Corpus is the protection against government locking you up without having a good due process reason. It is what keeps us free. And Lincoln was the first to suspend Habeas Corpus during the Civil War. He did that on his own. And now we have George Bush again. Nothing is more basic to our system than the right to be protected by Habeas Corpus, and that gets dismissed away with a shrug because of “terrorism,” a tactic. So these words are very, very important. And the fact that there were so many of these rights that were taken away under cover of fear of terrorism cannot be understated. And so Ivan lists very important changes in the relationship between citizens and its government. Sorry, Ivan.
Ivan Eland: Yeah, I was just going to say that you’re right on target about that. And we have a lot of episodes in history where the threat wasn’t anywhere near what they said to do these things. As I mentioned, the original concept was that Congress would suspend Habeas Corpus, but only if the country were under an invasion or we had a mass insurrection. Of course, when Lincoln did it, we had an insurrection, but even he put it in up and down the East Coast instead of local areas where it needed to be done. At first it was local, but then he spread it far and wide, and there was really no military justification for what he did. And unfortunately, as you mentioned, that has become a precedent for the President to do that instead of the Congress. That’s the first thing. And the second thing, Bush resurrected this after 9/11. And that’s the problem when you have these unconstitutional things happen in the United States and there’s no pushback, then future presidents will say, “Well, hey, so-and-so did it.” And of course, Lincoln is a very revered person, so Bush said, “Well, you know, Lincoln suspended it during the Civil War, so that’s a precedent and I’m bringing that back.” So you have to watch these precedents that are set that are very bad for the country, no matter who does it.
Defining “War” and Constitutional Authority [20:24]
Bob Zadek: Now, Ivan, as I said, how war plays into all of this—and war, small word, three letters, big confusing meaning. Now, war changes in the relationship in the balance of power among the three branches of government. War is a game-changer. Whatever the structure was that the Founders gave us in the Constitution with the checks and balances in the various branches of government, that changes to some degree when war happens. So tell us, Ivan, in just if you can briefly, how things change constitutionally during war. And most importantly, and I think the most difficult question is: what is a war? Because we have had wars on behavior, war on drugs, we have had wars on economic condition, a war on poverty, and wars on a military tactic—war on terror. So please tell us, under the Constitution, how does war change the balance just in wartime, and what does war in the constitutional sense even mean?
Ivan Eland: Well, of course, as you point out, the term has been taken and expanded wildly to war on drugs, war on poverty. And of course, we use the military metaphor even for sports now—well, one team is going to battle back if they’re behind in the score or whatever. And so this is the problem with this discourse is that we’ve lost sight of what war really is. A war is killing people—one side trying to kill the other and vice versa on a fairly large scale. But of course, then it comes to, well, what do you do if it’s lesser than that? It’s like a skirmish or like the Quasi-War with the French, which was the naval jousting among the navies at an early stage in our history. Is that war?
Well, the Founders, first of all, they said war used to be—they looked at the European kings and what they did, and they regularly took their countries to war, and the cost in blood and treasure seeped down to the common person. And so the Founders said, “Well, no, we want the Congress, the representatives of the people, to decide whether we’re going to have war or not.” So we’re going to have the Congress declare war. But then we’ll turn it over to the Commander-in-Chief, who is merely the Chief General or Chief Admiral on the battlefield, and that will be the President. That will be the executive function. In other words, carrying out foreign policy just as domestic affairs, the President was supposed to execute what the Congress had passed, and the Congress was supposed to declare war.
Well, we haven’t declared war since World War II. So this is currently being abused. And we’ve had several big wars. We’ve had the Korean War was not declared, and we use these euphemisms—well, it was a police action, that’s what they want to say. Yes, police action, it’s not a war. Well, the problem is, if you go back to the Constitutional Convention, they created this provision for things short of war, which was at the time the only thing short of war was privateering, which was government-licensed piracy in times of conflict. And so they had these letters of marque that the Congress would issue to commission private citizens to take a ship out and try to get the enemy ship and capture them, whatever. So the Congress had intended for Congress, and during the Quasi-War with France in the late 1790s, Congress even regulated that unofficial war. So there are things that are not war in the broader sense, but even those were supposed to be approved by Congress. And of course, when we have a war on terror, this is like drone attacks here or there—even those really should be approved by Congress because they’re not really official. They haven’t been made official. So a lot of this is sort of illegal right now that’s happening in Somalia, Pakistan, Libya, etc. And so even these things short of all-out war are really supposed to be approved by Congress.
The Abdication of Congress [25:47]
Bob Zadek: So what we have is we have a series of, in the pure constitutional sense—and I’ll explain what I mean after the break—we have a series of unconstitutional wars where thousands and thousands of Americans have died unconstitutionally, where the President assumes the powers of Commander-in-Chief, a wartime concept, even though we are not at war in the constitutional sense, and he’s able to spend buckets of money and kill tens of thousands of American lives. And the question is: how does this happen? Is this—has we been subject to a coup by the Office of the President? Have they just taken over, or has Congress appointed them, the President, as permanent Commander-in-Chief? How did this happen specifically, and how do we stop it? When we come back from our very brief 30-second break, don’t worry, solutions are on the way. Please stay tuned.
[Commercial Break]
Bob Zadek: Welcome back to the Bob Zadek Show, the longest-running live libertarian talk radio show in all of radio. Thanks so much for listening this summer Sunday morning to my conversation with Ivan Eland. Ivan was the Director of Defense Policy Studies at Cato, he spent 15 years working up on the Hill in various governmental posts, he now writes for the Independent Institute and has just written War and the Rogue Presidency, subtitle: Restoring the Republic After Congressional Failure.
Now, Ivan, we haven’t had any drama involving a coup by the various officeholders of the Office of the President. So this is not anything that was accompanied by drama. You have accused Congress of negligence. I may take issue with the use of that word, but that’s quite minor. How did it happen that the President is able to take command of troops, order troops overseas, order troops to kill citizens of another country just because the President feels it’s in the country’s best interest, or perhaps something more sinister? How did it happen that the President is able to do that? After all, Congress controls the purse. The President cannot do anything unless Congress affirmatively gives the President the money. So is this really an abdication of Congress? How did it all happen? And specifically, tell us about the Authorization for the Use of Military Force and how that acronym, that AUMF, fits into all of this.
Ivan Eland: Well, the problem started happening in the Korean War where Harry Truman—this was a major war. North Korea had invaded South Korea, and Truman made the decision he wanted to send forces to help the South Koreans, even though he had stupidly written it off as a defense perimeter. Either you’re going to defend it or you don’t. And he probably should have just said, “Well, Korea’s not that important at the time,” and said, “Well, this is outside our defense perimeter,” which is what they said. But the problem is, when the North Koreans took that as an invitation to invade, then Truman changed his mind and said, “Well, oh, I guess we better defend this country.” But he did not get a declaration of war. And this is a major military action. So this was the first transgression.
Bob Zadek: Ivan, can you help us understand why Truman did not choose to just behave constitutionally, by the book, go to Congress and ask for a declaration of war against North Korea? That would have been the right way to do it and the sensible way. Why didn’t he?
Ivan Eland: Well, I think his Secretary of State had a rather arrogant attitude and an agenda that he wanted to increase executive power. And Truman, you know, he didn’t have really too much experience. He had been a senator, but he wasn’t really what you’d call an intellectual. He had been a haberdasher in Missouri and that sort of thing. And he wasn’t really—I think he was sort of under Acheson’s guidance. However, he not only did not get a declaration of war, but then he tried to nationalize the steel industry in the United States and just seize it with the government running the mills because he said, “Well, we need the steel for the war.” Well, the Supreme Court said, “Listen, basically, you’re the Commander-in-Chief of the armed forces, but you’re not Commander-in-Chief of the country.” And that is a crucial distinction. So he was beaten back on the domestic side, but they still allowed him—Congress still allowed him to do this. And they offered to do a declaration of war, but Acheson didn’t want it because he felt it just wasn’t necessary, that the President should have primacy in foreign affairs, which came from a case in the 1930s called Curtis-Wright. And I won’t go into the details of the case, but they brought back Hamilton’s original saying that the executive is the sole organ of US foreign policy, which of course is nonsense because, as I mentioned before, most of the powers even in foreign policy where the President is now dominant are with Congress. You have—they have to ratify treaties, they have to approve of all the people in the cabinet that deal with foreign affairs and defense by confirming them, they have to declare war, they issue letters of marque and reprisal, etc. So you have—I count 17 powers which the Congress has over war and foreign policy, and the executive has four. And the original Commander-in-Chief power, which the presidents now rely on to do the things that we were talking about—George W. Bush after 9/11 relied on this Commander-in-Chief power again, trying to be Commander-in-Chief of the country. Well, this time the Supreme Court did push back, but to some extent it let George W. Bush be the Commander-in-Chief of the country. It didn’t let Truman back in the early ’50s, but it did now. So you can see the erosion.
And this was the Supreme Court, but the Congress has also abdicated its power to declare war. It acquiesced during the Korean War and continues to do so. An example is that the Military Commissions Act—Congress said, “Well, no, you can’t do that because it’s illegal.” Well, they eventually capitulated and passed a Military Commissions Act and allowed the President to do some of the things that they had previously said, “Well, you can’t do.” So Congress has abdicated really, I would say probably starting in World War I, but certainly down to the present, and particularly from Truman on, it’s really abdicated its powers in not only the war power but the budgetary power. It now just putters around on the executive budget. And as far as wars go, Congress has always been reluctant to pull funding for troops already in the field. Well, troops aren’t supposed to be in the field unless Congress approves it. But now the executive—what happens is he decides that he wants to send troops somewhere, so then he sends them, and then he confronts the Congress with a fait accompli, and of course they’re not going to defund forces that are being shot at somewhere overseas. And of course, the troops and the country don’t want that to happen. But the real problem is he’s allowed to send those forces without congressional approval in the first place. And that’s where we need to correct the system, I think.
The “Rogue” Presidency [36:06]
Bob Zadek: So you said Congress has abdicated. I have had guests on my show in the past—Jeff Bergner comes to mind about six or eight weeks ago—where it’s not an abdication in the negligent sense, but rather Congress would rather not get criticized for doing something wrong. And the way they avoid criticism, which means get re-elected, is by not doing anything and allowing, by not preventing, allowing the President to take the heat for sending troops overseas when in reality the President can only do it if Congress empowers the President.
Now, we’ll take our caller in a second, but one point I want to ask Ivan to comment on. In your book, the title of your book is War and the Rogue Presidency. I think the book almost to some degree contradicts or qualifies the word “rogue.” The “rogue” suggests the President is doing something somehow improper, illegal, immoral, something bad. But in point of fact, isn’t it the case that everything the President does, the President—and I’ll use it as not as a person but as an office—the presidency only can do something if Congress empowers it, or if Congress hasn’t empowered it, if the courts say it’s okay. So the President is not really being a rogue. Isn’t it true the President is simply enjoying the power he has because the other branches, or the legislature, has cowardly abdicated, your phrase, their responsibility? Is the word “rogue” accurate, or am I—maybe it is accurate and I have missed that point?
Ivan Eland: Well, let’s go back a ways. In the early 1970s, Arthur Schlesinger, who was a historian, he thought that the presidency had become so powerful in foreign affairs and national security that it was bleeding over into the domestic scene, namely the Watergate scandal. And he was correct in that because the original “plumbers” Richard Nixon got to do dirty political tricks were originally created to plug leaks that were coming out of the bureaucracy about the Vietnam War and the Cambodian incursion—well, this was the war in Southeast Asia, but particularly the Cambodian incursion. So he termed this the “Imperial Presidency,” meaning this power in foreign affairs was now bleeding over into the domestic scene.
And so I use the term “rogue” because I think the presidency is rogue. It’s not only imperial in the fact that it’s acquired all this power, but particularly beginning with George Bush, he just did things illegally that were illegal. For instance, domestic spying—he knew that that was illegal, and he committed an illegal act there. We also have the torture. Torture was, as I mentioned before, against domestic and international law, but he chose to do it anyway. So you see—and this continued through Obama and now Trump. Now we have Trump saying, “Well, I really want to build my border wall, and we’ve got to take private land from ranchers, and I know that’s illegal, but I’ll pardon whatever executive branch official does that.” Now, that’s, you know, that’s gone into sort of rogue behavior. The Imperial Presidency sort of was, “Well, I’m going to do this, and if the Congress doesn’t abdicate its authority, I’m certainly going to take them up on it and I’m going to accrue power.” Now I think we’re—since 9/11, I think we’ve gone into this idea where the President can do things that he just declares he’s going to do. Barack Obama just said, “Well, Congress hasn’t acted, so I need to.” Well, anytime you hear that, that’s an illegal statement because Congress is supposed to legislate. But now we have a situation where everybody legislates but the legislature. As you mentioned, Congress now passes vague laws because they don’t want responsibility for them. Let’s take a non-military example: in the environment area, they pass, “Oh, we want clean air, clean water,” and then we’re going to leave the standards to the executive branch to create. Well, okay, then the executive branch is legislating. Well, then you have environmental groups or industry groups who don’t like the standards that the bureaucrats create, so they sue in court. And then when the court decision comes by, the courts are now legislating. But what should have happened to prevent all this from happening is that Congress should have legislated very specific rules that they want to put in environmental regulations, which you can debate whether that’s a good idea or not, but if they do that, they should be specific about what they want and how it’s supposed to work. And so this, of course, is even—you double this effect in foreign policy because, as I said, since the 1930s, we seem to have this erroneous notion that the executive should have foreign policy dominance. And so who knows what we’re going to see in terms of warfare? Now we’ve got eight wars going—we don’t even know really how many there are because some of these are done secretly. And so we’ve got all these wars going on which are totally illegal and unconstitutional. And they were done—you mentioned the AUMF, the Authorization for the Use of Military Force—that was passed after 9/11, but they’re fighting groups that weren’t even in existence after 9/11 with this. So you can see that they’re really—they’re basically just blatantly violating that authorization. So they did get some original authorization for the war on terror, but it’s gone way beyond that. And it’s very clear to everybody that they’re overstepping. But there’s been moves in Congress which haven’t gone anywhere to get a new resolution if we’re going to fight all these wars, we really need to put some legal veneer on them at least. But they won’t even do that because war, I think, is the ultimate thing that Congress doesn’t want to take responsibility for because they don’t want to be part of a losing war. They like to take credit if they’ve approved it if the war goes well, but they’re not sure that that’s going to happen. So what happens is the first Persian Gulf War, where the Bush the elder—a lot of Democrats voted against that because he did—he didn’t get a declaration, but he did seek some sort of approval, but he said, “Well, I have the authority to do this myself, but as a courtesy, I’m going to have Congress vote on it.” Well, a lot of Democrats opposed that. Well, of course, the war was a tactical success, very one-sided. So the next time, when his son went after Saddam Hussein to invade Iraq, they were very gun-shy because the first time that they voted against the war, they saw what happened to the last Democrats who voted against the war—they got voted out of office. So the second time, they didn’t protest as much. A lot of them went along, and of course, the thing ended up to be a disaster. So this is the type of timidity that we get, especially with war, but on domestic—some domestic policies as well by these vague laws that the Congress really doesn’t want to be held responsible because their ultimate goal is re-election, not making good policy.
Restoring the Republic: Solutions [45:53]
Bob Zadek: Now, Ivan, we’re regrettably getting low on time. An important part of your book is the solutions to the pickle we find ourselves in today. And share with us if you can some of your solutions, because many others have written about the problem, but you’re the only one that I’m aware of who offers concrete solutions. Give us some examples of how you would propose and how we could fix this process so we are not in a condition which we are today where most Americans who are alive today have never lived during a period of peace. It’s astonishing, but that statistic is true. Most Americans only know war; that is like the normal state of affairs. What are some of the solutions in the final chapters of your book?
Ivan Eland: Well, I think that one of the main ones is that we really need to restore the incentives of the individual members with the institution as a whole. And this—the incentives have separated because—I’m getting some interference on the program.
Bob Zadek: We can hear you.
Ivan Eland: Okay. So we have these individual incentives of members of Congress differing from their institutional incentives. And the institutional incentives are supposed to take precedence because James Madison figured that every branch of government would stick up for its own interest. And that’s not really happening. Now, the members are going off and trying to get re-elected on their own with doing their own publicity and stuff. So I think you need to really restore that. And one way to do that is to try to structure Congress—and Congress can structure its own rules to make there more party discipline within the Congress. Now, this is not a perfect sense because they didn’t design the system with so much partisanship involved, but I think it would help Congress push back as an institution if its members had closer incentives to what the body’s incentives were.
Bob Zadek: So the problem is internal within Congress. That Congress itself has realized—the individual members realize—the secret of getting re-elected is not to make decisions. Therefore, they surrender individually but ultimately collectively their power because with power comes the possibility to make a mistake. And if they give up the power and let the courts take the heat—and just look at the battles we have over Supreme Court appointments and you’ll see how much heat the courts are getting. And look at the power the executive has and just look at all the heat the President gets. All that heat is directed at the presidency and the courts, which means not at Congress. And Congress just has hearings, just becomes a national collective scold on other branches of government, but doesn’t enact legislation. And I ask our listeners out there, I challenge you to name an important piece of legislation that Congress has thoughtfully and collectively—that is, both Democrats and Republicans support—have enacted in your lifetime. Just imagine a series of legislatures on both parties getting together and thoughtfully enacting anything important that collectively they can support. Don’t knock yourself out; the answer will be zero. So Congress has become just an organization that focuses only on its own preservation and not about what the country needs or wants. And they gleefully surrender all of their power to the other branches. And all they do is get re-elected so they can have free parking at Reagan Airport. And so Ivan, you propose—although how we get there is a challenge—that Congress has to fix itself because the legislature has the power to make its own rules. Those rules are not constitutional. How likelihood is it that legislators will act against their individual self-interest in order to preserve the importance of the institution?
Ivan Eland: Well, we have had some centralization in the last couple decades in Congress, which I think is good. I think we still need more. We have a system now that’s very partisan without strong parties. And I think one of the ways is to get more party discipline in Congress. And you can do that by rule changes and strengthening the Senate Majority Leader and the House Speaker. Now, and the other advantage of that is if you have that, it’s also more easily—it’s easier to get things done because the leadership just negotiates, like McConnell would pick up the phone, call Pelosi at this point and say, “Listen, can you bring your people along? We need to make this compromise and get some legislation passed.” And she’d say, “Yes, I can bring my members along. We don’t agree with your side, but maybe we can reach a compromise on this.” But that’s not what happens now. We have 535 grandstanders who are out to use the media to get re-elected on their own. They don’t really have much loyalty to the leaders in Congress, and that’s a real problem for getting anything done. And so it’s not going to be perfect because sometimes they’re going to still do the wrong thing, but I think the amount of legislation will go up and certainly maybe the abdication will be less to the executive branch. Because now the problem is even if Congress makes a bad law right now, the President is filling it in.
Bob Zadek: Ivan, I hate to interrupt. We have zero time left. I want to thank Ivan for giving us an hour of his time on this three-day weekend. Ivan, thank you so much for your work at the Independent Institute and for your book, War and the Rogue Presidency: Restoring the Republic After Congressional Failure. Thanks a lot to all my friends out there. Sorry to the callers who I couldn’t get to this morning; we just had too much work to do, Ivan and I. Thank you so much for listening. I’ll be back again next Sunday.