Monday, November 08, 2010

The Next Phase in our Decline and Fall?

Bruce Ackerman

Now that the Republicans have swept into power in the House of Representatives, it might be imagined that America’s system of checks-and-balances guarantees a period of impasse -- with lots of passionate talk generating very little action. But this bit of wisdom from Montesquieu is out of date. Divided government now sets the stage for a crisis in governability, leading to desperate efforts by Congress and the President to prevail through unilateral measures.

As I argue in Decline and Fall, the presidency has a decisive advantage in this competition. Congress can threaten to shut down the government, but as Gingrich has taught us, the use of the ultimate weapon can generate lots of collateral damage. In contrast, the White House has developed the capacity to transform domestic policy through top-down regulatory initiatives. These unilateral actions may be legally problematic, or worse.

This op-ed in Sunday’s LA Times sketches out the way in which the White House Counsel’s office, together with the Office of Legal Counsel, have overwhelming political incentives to endorse such power-grabs. In contrast to the titanic blast generated by a government shut-down, these executive initiatives may be moderately sized, but they can add up to very large shifts in public policy.

Presidents Clinton and Bush made very effective use of these techniques after the turn-over Congressional elections of 1994 and 2006. I urge Obama to resist the temptation to follow suit. By consolidating the unilateralist precedents of his predecessors, he will further consolidate presidential unilateralism and prepare the way for even worse abuses than Watergate or the “war on terror.” (For more, see Balkinization Symposium on on the book.)

My constitutionalist emphasis runs against the grain of liberal politics. From this point of view, it’s easy to condemn Obama ‘s naivete in reaching out to the “just-say-no” Republicans during his first two years -- and to insist that it’s past time for him to use all his powers to engage in all-out partisan warfare. I can certainly share the frustration motivating this advice. But short-term partisan thinking shouldn’t blind us to the long-term constitutional stakes. If Obama continues down the path blazed by Clinton and Bush, he is taking the country down the grim path charted out in Decline and Fall.

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