Power Tends to Corrupt, and Conservatives Should Remember It When They Hold It

Politicians discover a passionate love of limited power the day the other party takes the keys. It is a law of Washington with no exceptions. The same senator who calls a presidential order a tyrannical grab in January is the one drafting a memo in the next administration explaining why a similar order is a lawful and necessary use of authority. The words are identical. Only the stationery changes.

I do not say this to be cynical. I say it because it is the oldest problem in politics, and the people who feared it most are the ones who built our system. They did not trust kings, they did not trust parliaments, and, to their credit, they did not entirely trust themselves. That suspicion is a conservative principle at its root. And it is one that conservatives are most likely to forget at the moment they win.

So let me make the case for remembering it. I will start with a sentence, build the argument in numbered steps, put the strongest objection at its full strength, and give you a verdict. If the argument is right, it applies to a President of either party, and to Congress and the courts as well. It would be a poor argument if it did not.

The sentence

John Emerich Edward Dalberg-Acton, known to history as Lord Acton, was an English historian and Catholic liberal who spent his life studying the history of freedom. In April 1887 he wrote a letter to Bishop Mandell Creighton, who had written a history of the papacy and treated some of its worst rulers gently. Acton disagreed. He wrote that we should judge popes and kings by the same moral standard as anyone else, and in the course of the argument he produced the line that has outlived everything else he wrote: "Power tends to corrupt, and absolute power corrupts absolutely."

Notice the two halves. The first half says tends, which is careful. It does not say that every person with power is a villain. It says that power exerts a pull, and that the pull gets stronger as the checks get weaker. The second half says what happens when there are no checks at all. Acton was not describing bad men. He was describing a force that works on good ones.

That is the sentence the Founders would have recognized. They had read their history. They knew what a crown could do, and the Declaration of Independence of 1776 describes a long history of "repeated injuries and usurpations" aimed at the "establishment of an absolute Tyranny." What they built afterward was a machine for making power hard to use, not easy.

The argument, in five steps

Let me lay it out the way a debater would.

1. Power attracts, and it attracts everyone. People who seek office are ambitious, and ambition is not a vice. But the same instinct that makes a person want to fix a problem makes him want the authority to do it quickly. Madison said it in Federalist 51: "If men were angels, no government would be necessary." Nor would we need limits on it. But we are not angels, and the limits are there because the officeholders are not either.

1. Concentrated power is hard to check. When legislative, executive and judicial power sit in one place, there is no one left to say no. Madison went further in Federalist 47, writing that gathering all three in the same hands, whether of one, a few or many, may justly be called "the very definition of tyranny." The framers took the separation of powers from Montesquieu and then built it into Articles I, II and III.

1. Power does not stay with the person who builds it. This is the step most people skip. When you create a new authority, you do not create it for yourself. You create it for the office, and the office has a way of outliving the occupant. A tool made by one administration is waiting in the drawer for the next one, and the next may not share your values, your restraint or your party.

1. Good intentions are not a limit. Every person who has ever claimed more power than the law allowed has said it was for a good cause. If the test for using power is whether the cause is good, then there is no test, because everyone's cause is good to them.

1. Therefore the right question is structural, not personal. Do not ask "do I trust this person with this power?" Ask "would I accept this power in the hands of the person I trust least, serving the cause I like least?" If the answer is no, the power should not exist, however good the present user.

That is the argument. It is not partisan. It is the argument of Madison, and Lord Acton, and anyone who has ever watched a political tool change hands.

Three precedents that bit the people who made them

Abstractions are cheap. Here are three cases where a power built for one set of hands ended up in another.

The filibuster and the judges. In November 2013, the Democratic majority in the Senate changed the rules so that most presidential nominations, including lower federal court judges, could be confirmed by a simple majority and no longer needed 60 votes to end debate. Republicans objected strenuously. In April 2017, a Republican majority extended the same change to Supreme Court nominees, in order to confirm Neil Gorsuch. Each side called the other's move a betrayal and its own move a necessity. Each side got a short-term win and handed the other a precedent. Whether you think the changes were justified or not, notice what happened: a rule change that looked like a clever tactic became a permanent feature of the Senate for whoever holds it next. The best defense of the old arrangement is in Why the Filibuster Is the Best Friend a Minority Party Ever Had.

The steel mills. In April 1952, with American troops fighting in Korea and a threatened strike in the steel industry, President Harry Truman, a Democrat, ordered the seizure of the nation's steel mills. He argued that production was essential to the war effort. The Supreme Court ruled against him in Youngstown Sheet & Tube Co. v. Sawyer on June 2, 1952, by a vote of six to three. Justice Robert Jackson's concurrence set out three categories of presidential power, which courts still use. The central point: the President's authority is strongest when he acts with Congress, weaker when Congress is silent, and weakest when he acts against it. See Justice Jackson's Three-Box Test for Presidential Power, Put to Work.

The emergencies that do not end. Congress passed the National Emergencies Act in 1976 to regulate presidential declarations of emergency, which unlock special powers. In practice the statute set a procedure but not a stopping point. Emergencies declared by Presidents of both parties have lasted for years, and the one declared in November 1979 toward Iran has been renewed by successive Presidents for decades. The law meant to limit the power became a way of using it. If you want the legal map of what the President may and may not do, Who Can Fire the Regulators? A Timeline From Myers to Seila Law is a good place to start.

I could add the Republican side without strain. Richard Nixon, in the Watergate years, claimed broad powers over spending and secrecy. He impounded funds Congress had appropriated, and Congress answered with the Budget and Impoundment Control Act of 1974, a story in Nixon Impounded the Money, Congress Fought Back, and the 1974 Law Still Rules. In a 1977 interview he told David Frost that when the President does it, that means it is not illegal. In August 1974 leaders of his own party told him the game was over, and the system worked, but it worked because other institutions did their jobs.

The strongest objection

Now the other side's best case. It deserves a fair hearing, because it is not foolish.

The objection goes: Our side's power is different. We have the right goals. The other side is dangerous, and they will use every tool they have. If we refuse to use ours, we are disarming unilaterally while they are not. Congress is gridlocked, the bureaucracy resists, and the country cannot wait for the slow machinery of the Founders to run. Alexander Hamilton himself wrote in Federalist 70 that "energy in the executive" is a leading character in good government. So use the energy.

There are real points in there. Hamilton did say it, and an executive who cannot act is a poor executive. Emergencies exist, and the Constitution gives the President real powers as commander in chief, as the officer who must "take Care that the Laws be faithfully executed," and as the holder of the pardon. A President who does his actual job is not a tyrant.

Here is the answer, in four points.

One: energy is not the same as unilateralism. Hamilton's Federalist 70 argues for a single executive who can act decisively within the law, and who is answerable for results. It does not argue that the President can make law. Enforcing a statute vigorously is energy. Rewriting a statute by order is something else.

Two: you will not be the last to hold the tool. The step that people skip is step three. A power that you claim because the other side is dangerous belongs to the other side the moment they win. If you would not give it to them, do not take it for yourself.

Three: gridlock is the system working, not failing. The Founders designed Congress to be slow, so that a bill needs two chambers and a signature, as How a Bill Really Becomes Law, Including the Steps Schoolhouse Rock Skipped describes. If you cannot persuade enough of your fellow citizens to pass a law, the remedy is to persuade more of them, not to skip the step. A policy that survives only because of one person's pen can vanish with the next person's. A policy passed by Congress is far more durable.

Four: "they did it first" is a reason to restore the limit, not to claim the tool. Sometimes the other side did start it. Then the principled response is to say so, to use the legislative route to reverse it, and to hold your own side to the standard when the shoe is on the other foot. The Republican Congress of 1947 did exactly this after Franklin Roosevelt won four elections, by proposing the 22nd Amendment. The amendment was ratified in 1951. It limits Presidents of both parties, including the ones the sponsors might have liked, and Why a Republican Congress Wrote the 22nd Amendment After Four Terms of FDR tells the story.

Why institutions beat good intentions

Here is the heart of it. Good intentions are real, and they are rare enough that we should be grateful for them when we find them. They are also unreliable as a basis for design, because you cannot guarantee that the next person will have them. Institutions are the opposite. They work whether or not anyone is virtuous.

A court that can strike down a law, a legislature that holds the purse, a press that can print what an official wishes it would not, a federal system in which states can say no, and an election that comes every two or four years: none of these depends on the goodwill of the person at the top. That is the point. A government that only works when the right people run it is not a government of laws. It is a government of luck.

Dwight Eisenhower, a Republican President and a general, understood this. His farewell address in January 1961 warned of the dangers of unwarranted influence by what he called the military-industrial complex, and it urged the country to keep power in balance. The man who had run the largest military operation in history told his countrymen to be careful about concentrated power. Read the whole thing, and the commentary in Eisenhower's farewell address gave two warnings and Republicans remember one.

Conservatives have a particular reason to take this seriously. We are the party that says government is fallible, that planners lack the knowledge they need, and that people respond to incentives. If that is true of a bureaucrat, it is true of a President. If it is true of the other side's leader, it is true of ours. The consistent position, and the one that stands up when the White House changes hands, is to defend the limit and not the man.

A test you can keep in your wallet

Before you cheer for any use of power, ask five quick questions.

1. Does the Constitution or a statute give this power, in words I can point to?
2. Would I accept this in the hands of a President I opposed?
3. Is there a check, such as a court, a vote or a deadline, that can stop it?
4. If it fails, who answers for it?
5. Would I still defend it if the same action came from the other party tomorrow?

If the answers are yes, yes, yes, someone, and yes, you can support it with a clear conscience. If any answer wobbles, you have found the place where your principles and your team part ways. That is a useful thing to know.

The bottom line

• Acton's sentence is a warning about the structure of power, not about bad people. It tells you to build the checks before you need them.
• Powers outlive the people who claim them. Before you applaud one, picture it in the hands of the person you trust least.
• Hold your own side to the standard. Defend limits on a President of either party, in public, even when it costs you in the short run.
• Prefer the slow route through Congress. A law that passed is harder to undo than an order that was signed.
• When someone tells you that this time the power is safe because the cause is good, remember that this is what everyone says.