A Napoleon Complex

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Gerard Magliocca

          Congratulations to Balkinization on its 20th anniversary. Really, congratulations to Jack, who started this community and was the only blogger for its first few years. That’s the good news. The bad news is that a constitutional problem that has consumed much of our attention since 2003 is still alive and well.

          The problem is the unbounded presidency. Balkinization began against the backdrop of preparations for the Second Gulf War and hit its stride in posts that criticized the Bush Administration’s overreach on issues such as torture, executive detention, and warrantless surveillance. While the aftermath of the September 11th terrorist attacks was bound to produce a more assertive Executive Branch, peace did not fully reset the constitutional balance. Instead, presidents of both parties have increasingly turned to dubious executive orders and emergency powers to achieve goals that Congress would not pass. Sometimes the courts eventually block these executive measures, but too often they do not.

          What explains this trend? If President Trump were the only culprit, then you could just blame his bizarre psychology. But he is just the worst--not the only--example. Political polarization is partly to blame. Past presidents wielded less power over their administrations because of the strength of rival factions within their parties. Many presidents could not simply fire a senior Cabinet member or afford to let one resign in protest over a controversial decision. If either type of acrimonious departure happened, then the faction that the former official represented could bring down the Administration. In this sense, many presidencies functioned like or even modeled themselves on the British Cabinet system. Not anymore. The party unity created by polarization removes this internal political constraint on the President. Today only the threat of widespread resignations with the Executive Branch, including some senior civil servants, seems to give presidents pause.

          The impotence of Congress is another significant factor in the presidency’s growth. One reason that recent presidents have resorted to unilateral action more frequently is that even popular legislation cannot overcome a Senate filibuster. The breakdown of regular order in the legislative process, where committees once wielded significant power and members could offer many amendments in floor debate, also makes crafting acceptable legislation more difficult. Polarization plays a role here as well, but this dysfunction also reflects a longer and more profound decline in Congress’s institutional self-respect.

          One judge made this connection in the 1950s, which brings me to my current project. I am writing a book about Justice Robert H. Jackson’s concurring opinion in Youngstown Sheet and Tube Co. v. Sawyer, which is the canonical judicial text on separation of powers. Toward the end of that opinion, Justice Jackson said: 

I have no illusion that any decision by this Court can keep power in the hands of Congress if it is not wise and timely in meeting its problems. A crisis that challenges the President equally, or perhaps primarily, challenges Congress. If not good law, there was worldly wisdom in the maxim attributed to Napoleon that ‘The tools belong to the man who can use them.’ We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers. 

In an early draft, Jackson made the point even more vividly: “As crisis follows crisis, if Congress allows its attention to be diverted by trivia, its leadership of the Nation weakened by its absorption in sectional tasks, its impact weakened by partisan division, the weight of public opinion will surely shift effective power to a centralized Executive.” This prophecy is now fulfilled. Congress did not heed Justice Jackson’s warning enough. 

Neither did the Supreme Court. One of the many wise suggestions in the Youngstown concurrence is that the Court should pay more attention in separation-of-powers cases to the “gap that exists between the President’s paper powers and his real powers.”  Justice Jackson then talked at about how the modern presidency was far more powerful than its ancestor because of the expansion of the federal government, the development of mass communications, and strength of the party system. His conclusion was that the country would not “suffer if the Court refuses to further to aggrandize the presidential office, already so potent and so relatively immune from judicial review, at the expense of Congress.” 

But the Supreme Court has further aggrandized the presidential office. Perhaps that pattern began with the invalidation of the legislative veto in INS v. Chadha, which contradicted Justice Jackson’s view on that issue (as he explained in a Youngstown draft and then later published as an article in the Harvard Law Review). Whatever the starting point was, in recent years the Court significantly cut back on congressional power to limit the executive’s ability to remove officials at will. These opinions rest on a formal analysis rather than the functional approach advocated the Youngstown concurrence. Thus, even when Congress tries to assert itself, the Court stands in the way. 

While the Court therefore shares some of the blame for our current predicament, the claim that Supreme Court reform should be a top constitutional priority is mistaken. Congress is the institution that really needs an overhaul so that the legislative branch can fulfill its counterbalancing role more effectively in areas that would not present judicial questions. Calling for filibuster reform is now something of a broken record. An idea that gets less attention but may be equally important would involve restoring power to the committee chairs in Congress. Just as the President is now too powerful, so is the congressional leadership (though Speaker McCarthy—if he can get elected Speaker with his slender majority—may be an exception.) The centralization of power within Congress has not produced better results and leaves most backbench members with no voice. It’s time for change. 

Let me close on a personal note. I am lucky to have the privilege to write anything I want whenever I want and have that work disseminated to whom I want. I thank Jack, my co-bloggers, and our readers. Twenty more years!

Gerard N. Magliocca is the Samuel R. Rosen Professor at the IU Robert H. McKinney School of Law. You can reach him by e-mail at  gmaglioc@iupui.edu.