By Chapter 11 McDonald begins discussing how presidents from Washington on dealt with the law based on the Constitution. And while federal law gradually gave way to state and local laws, because some issues and problems were simply easier to deal with at the local and regional level, it was also true that presidents and their attorneys general had problems enforcing what federal laws did require federal jurisdiction. Part of this problem, McDonald write on page 285, was “the penchant of Congress to enact bad legislation”; bills that were well intentioned turned out to be “poorly crafted,” or plainly impossible to enforce. The author gives examples of laws that attempted to legislate morality, that didnt work; the “Mann Act,” which made it a federal crime to “transport a female across state lines for immoral purposes”; and the Volstead Act (prohibition), which attempted to ban the sale or production of booze.
The problem few framers had envisioned was the growth of the federal bureaucracy; in Chapter 12 McDonald reviews with his usual precision and detail, the way the executive branch grew into a huge bureaucracy and how the Congress resisted presidents desires to create huge kingdoms at every turn. President Richard Nixon, who resigned in shame in 1973, had put in place a “super cabinet” with four men (Ehrlichman in domestic affairs; Kissinger in foreign affairs; Schultz in economic matters; and Ash in “executive-management” matters) given enormous power to act in the presidents name. This new arrangement of executive power did not succeed, however, because of the Watergate scandal.
If Watergate had not happened, though, a special panel set up to investigate the dynamics of the executive branch (“National Academy of Public Administration”) wrote that the federal government might have been turned into a Germanic “ideal type of monocracy, ruled from the top through a strictly disciplined hierarchical system.” And the only way to bring a president into accountability – with a system such as what Nixon wanted – was to impeach the president.
McDonald is never shy in his book about telling it like he sees it; for example, on page 340, in describing the aftermath of the Nixon and Johnson Administrations – and the attempts by Congress to regain some of the power lost to the executive branch – McDonald said the federal government appeared “…rather to be a huge, amorphous blob, like a creature out of science fiction.” His footnote for that passage refers to several books that criticize the way the federal government has functioned (and malfunctioned) over the 20th Century. A reader can only wonder what McDonald would say about the Bush Administration, which has clearly been given (or simply taken) enormous power away from the Legislative branch since the September 11 attacks. Perhaps a follow-up book is in order for McDonald, because many authors and scholars and alert citizens have certainly noted in books and periodicals and newspapers and on television that Bush seems to do pretty much as he pleases, insisting along the way that the Constitution has given him power “to protect the American people” through any.