an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
In 1973, Arthur Schlesinger gave Americans a name for a collective anxiety: the imperial presidency. But as Steve Griffin suggests, his diagnosis centered on foreign affairs, and especially questions of war and peace. My focus is different. Decline and Fall points to a wide range of developments that have made the presidency a threat to our constitutional traditions at home, not only abroad. Griffin believes that the root cause of these domestic difficulties is America’s imperial pretensions. I disagree: my book emphasizes an array of institutional pathologies that have little or nothing to do with foreign affairs. For starters, it is the modern system of presidential primaries, not imperial overreach, that presently permits extremists to gain major party nominations – and to transform the White House into a platform for hard-right or -left politics once they get elected.
Nor do America’s foreign adventures play a central role in accounting for the rise of pollsters and media consultants to the center of power in the White House. The key breakthrough occurred in the 1970s, when Pat Caddell took a key position in Jimmy Carter’s entourage that succeeding gurus have expanded and consolidated. The power of the Karl Roves and David Axelrods of the world will expand further as professional journalism commits economic suicide in the age of the Internet, leaving the public sphere open to increasing manipulation by presidential propaganda specialists.
In making extremist and irrational appeals, future presidents will be aided by a final transformation –which is happening , once again, independently of foreign policy. This involves the increasing public acceptance of Gallup polls as authoritative indicators of the president’s claim to speak for the People. If Gallup and Pew find that 70% percent of Americans have swung behind the President at a time of real or imagined crisis, this paves the way for President Righty or Lefty to take drastic steps in the name of the People – pointing to his high poll numbers to justify unilateral action if Congress doesn’t succumb to all of his extreme demands.
Foreign policy isn’t the primary engine of a second major dynamic. Here my argument moves from the presidency’s plebiscitary assertions of unilateral authority to the president’s nuts-and-bolts command over the bureaucratic levers of power. It was only in 1939 that Roosevelt gained the authority to appoint six special assistants. Until that point, presidents governed through a Cabinet frequently composed of relatively independent political potentates. But since its humble beginnings in 1939, the White House staff has grown and grown, with presidential assistants increasingly eclipsing Cabinet Secretaries in real-world decisionmaking. Staff growth was partially due to the National Security Council‘s increasing influence in foreign and military affairs. But it was Richard Nixon's creation of a Domestic Policy Council that helped precipitate a massive expansion in the 1970s. Ronald Reagan and Bill Clinton vastly expanded White House authority over the regulatory enterprise. Since each president can appoint almost all his staffers without the advice and consent of the Senate, the balance of bureaucratic power is shifting into the hands of super-loyalists intent on imposing the president’s “vision” on “legalistic obstructionists” in the departments.
“Visionary” bureaucratic leadership is encouraged further by the rise of the Office of White House Counsel and the transformation of the Office of Legal Counsel. Until Nixon’s time, the Department of Justice held a virtually monopoly on legal advice provided to the president. No longer. John Dean was the Founding Father of the modern WHC, creating a tiny legal staff to provide the president with independent advice. WHC now includes about forty super-lawyers coming from elite law schools and established law firms. They are men and women of great ability, but they gain their positions through political connections. This is increasingly true of the twenty-five lawyers who serve in the Justice Department’s Office of Legal Counsel. Since Jimmy Carter’s presidency, this elite unit has been dominated by the same breed of high-powered political lawyers who play a leading role in the WHC.
This legal elite will play a crucial role in the dark scenarios of the future: If an extremist president gains office, he will not only rely on media-manipulators and poll numbers to claim that the People support his unilateral assertions of power. He will count on the WHC and OLC to provide impressive-looking documents that serve as legal apologias for his power-grabs – and which the far-flung bureaucracy will use as authority to implement his commands.
I don’t deny that America’s role as world superpower has also served an engine of presidential prerogative. For example, both Presidents Bush and Obama have acted unconstitutionally in asserting their unilateral authority to extend the Iraqi War beyond the time-limits specified by Congress – as Oona Hathaway and I show in a forthcoming article in the Michigan Law Review, Limited War and the Constitution: Iraq and the Crisis of Presidential Legality. But I cannot agree with Steve that the threat of presidential usurpation at home is largely a reflex of the country’s rise to a dominant position abroad.
America’s mega-power status enters my argument in a more complicated fashion. Instead of generating the basic problem, it makes a very serious problem even more serious -- in two different ways. Most obviously, the president and his lawyers can readily use the world-wide “war on terror” as a justification for sweeping emergency powers at home. More fundamentally, our status as the world’s policeman has created a permanent military establishment which is playing an increasingly political role in domestic politics – especially since the passage of the Goldwater-Nichols Act of 1986.
Given Steve’s emphasis on America’s rise to world power, I would have expected him to emphasize the classic dangers a politicized military poses to republican government. But he takes a surprisingly benign view of the “revolt of the generals” that helped force Donald Rumsfeld’s resignation in late 2006. The generals’ complaints about Rumsfeld’s policies may well have had merit, but the next “revolt” may be spectacularly wrong-headed. Nevertheless, its leaders will use the success of the 2006 uprising as a precedent that legitimates their ill-considered assault on civilian authority.
So Griffin’s critique strikes me as doubly misdirected – both exaggerating the overall significance of America’s superpower status and minimizing the concrete threats that a politicized military does in fact pose to our constitutional tradition.
His misdiagnosis also seems to influence Sandy Levinson’s unduly pessimistic view of the chances for reform. He sometimes writes as if my proposals required an all-out assault on the “military-industrial complex” or some other malevolent monolith. But this is a mistake – most of my reforms aim at pathologies that have little or no relationship to the armed forces. Even those that focus on civil-military relations may well garner substantial support from the officer corps. Consider, for example, my proposed Canon of Military Ethics which aims to provide practical guidelines for career officers in dealing with politics and politicians. Many officers are well aware that these engagements are very treacherous – as the recent McChrystal Affair only serves to emphasize. Some future flare-up may well lead them to welcome a serious and sustained effort to formulate Canons that can provide them with practical guidelines that will protect them against harsh political reprisal, and simultaneously preserve fundamental constitutional principles.
I don’t want to sound very optimistic. Sandy and I are merely disagreeing on the right shade of grey – he thinks it’s closer to black than I do. I agree that each reform in my package will encounter resistance – otherwise it wouldn’t be much of a reform! But the viability of each proposal should be evaluated at retail, not wholesale –each reform will generate different kinds of opposition, and will gain different kinds of support. We can’t know in advance which side will win until a reform movement arises that forcefully make the case for change.
One thing is clear: Nothing is going to happen until America’s constitutionalists quit denying the seriousness of the problem – especially since, as Steve Griffin says, the “ideology of a strong executive has [strongly] penetrated into the legal profession.” When our newest Justice, Elena Kagan, encourages us to embrace a strong form of presidential unilateralism, it is tempting to take her word for it.
But, as Sandy says, we should not succumb to this temptation. In urging you to resist, though, I can’t accept Levinson’s flattering if frightening comparison to Cassandra. Hers was a very lonely voice indeed. In contrast, I am building on the work of many distinguished scholars and reformers, who have criticized each and every one of the presidentialist dangers enumerated in my book. Without meaning to disparage other first-class commentators, I especially commend Peter Shane’s recently published Madison’s Nightmare to your attention. My contribution, such as it is, is to put these more specialized commentaries into a bigger picture – suggesting how each particularized critique adds up to an even more dangerous whole. I hope that this integrative effort will encourage the-already-existing band of critics to inaugurate a new round of cross-disciplinary conversation – which may well lead to the formulation of a new and improved reform agenda.
Stephen Gardbaum makes an important contribution to this next round of discussion. He places America’s present predicament in larger historical and comparative context. He suggests that parliamentary systems are not immune from the world-wide shift towards hyper-executive power and media manipulation. He argues, however, that non-presidential systems have greater constitutional resources available for keeping these pathologies in check. I agree on both counts. If I were writing on a clean slate, I would definitely urge the adoption of a constitutional system that relies on a parliamentary government to make most key political decisions.
But, as Gardbaum is the first to recognize, Americans are not writing on a clean slate. We have had a remarkably successful experience with presidential government – and we are entirely unwilling to give it up. The challenge is to create new checks-and-balances that promise to minimize the emerging down-side dangers of modern presidentialism, without destroying its centrality to the American system.
Easier said than done. By placing American pathologies within a comparative framework, Professor Gardbaum opens up a research agenda that can’t help but enrich our own efforts to propose sensible reforms.
Moving closer to home, Gardbaum suggests that Congress is in the grip of some of the same pathologies afflicting the presidency. Most significantly, the Democratic and Republican primaries are pushing Congressional moderates of both parties to the extremes – since they must fend off hard-line challengers who threaten to oust them by mobilizing the ideological base on primary day. He is absolutely right, and his point adds another dark accent to my argument.
Quite simply, the increasing influence of hard-line right- or left-wingers in Congress increases the likelihood of “crises of governability” – in which a Congress dominated by the opposition party simply says No to all presidential initiatives. In response to the escalating impasse, the president will be sorely tempted to take unilateral action, using his elite lawyers to defend the constitutionality of his power-grabs, and his media-manipulators and pollsters to demonstrate the broad support of ordinary Americans for his end-runs around Congress. With a charismatic president claiming the authority of We the People, will the Supreme Court have the courage to intervene?
Such anxious questions provoke Sandy Levinson’s concluding remarks on my surprising transmogrification from Young Turk to Old Fogey. I used to be the guy who spent years chronicling the remarkable ways in which presidents – from Jefferson through Reagan – have served as engines of constitutional revolution. And I repeatedly emphasized how they ran rough-shod over the legalistic objections of their opponents. So why am I suddenly shocked, shocked, by the prospect of yet-another-variation on these presidentialist themes in the twenty-first century?
To highlight Sandy’s most salient question: Just because it took a decade or more for Roosevelt’s Democrats or Lincoln's Republicans to move from their first presidential victory to the final codification of their constitutional revolutions, why should we insist on a similar lag-time for presidentially-led change in the twenty-first century? Why shouldn’t a single presidential victory be enough to catalyze a successful “constitutional moment” in the high-speed twenty-first century?
Because the deliberate pace imposed by the separation of powers – a two year turnover for the House, four for the President, six for the Senate, life-tenure for the Supreme Court -- forces transformative presidents and their parties to defend themselves against repeated challenges by their critics. These biannual contests for public support, as well as resistance by the Court, generates an on-going and highly charged debate that encourages ordinary Americans to turn their attention to politics and gradually confront the profound character of the president’s sweeping constitutional platform. Once ordinary Americans better understand these initiatives, they may well reject them. It is only if the voters give the rising movement their repeated support, despite the repeated critiques by political opponents, that the president and his party will finally earn the authority to speak in the name of We the People – and inscribe their new constitutional vision into landmark statutes and judicial super-precedents issued by a reconstituted Supreme Court.
This is, at least, the basic pattern that emerges from my study of the past two centuries of constitutional history. Different patterns may well emerge in the future – ones that glorify the president’s capacity to intuit and express the popular will in unmediated fashion, and celebrate a virtually instantaneous equation of Presidential Will to Power with Popular Sovereignty. This celebratory vision was famously expressed by Carl Schmitt in the twentieth century, and it has its legal partisans in America today. But they remain in a small minority, and I have opposed this tendency throughout my career. Ever since writing Social Justice in the Liberal State, I have not been shy about proclaiming my membership in the party of the Enlightenment. And for those constitutionalists of a similar persuasion, I have only one word of advice: Before you embark on yet-another-study of the thought of James Madison or the precedents established by George Washington, consider whether ancestor worship really is the best way of sustaining America’s tradition of constitutional government – or whether you can better preserve Enlightenment principles of popular sovereignty by spending your time on the distinctive constitutional developments of the twentieth century and the real-world problems they pose for the future.
I am very grateful to Stephen Gardbaum, Steve Griffin, and Sandy Levinson for entering into this real-world conversation with such energy and insight, and I very much hope that our multi-logue encourages others to join in.