Madison's Nightmare: How Executive Power Threatens American Democracy

259 Pages·2009·3.051 MB·English

by  Peter M. Shane

Madison’s Nightmare
http://avaxho.me/blogs/ChrisRedfield

Madison’s Nightmare
How Executive Power Threatens
American Democracy
Peter M. Shane
Th e University of Chicago Press * Chicago and London
Peter M. Shane is the Jacob E. Davis and Jacob E. Davis II Chair in Law at
the Ohio State University Moritz College of Law.
Th e University of Chicago Press, Chicago 60637
Th e University of Chicago Press, Ltd., London
© 2009 by Peter M. Shane
All rights reserved. Published 2009
Printed in the United States of America
18 17 16 15 14 13 12 11 10 09 1 2 3 4 5
ISBN-13: 978-0-226-74939-6 (cloth)
ISBN-10: 0-226-74939-8 (cloth)
Library of Congress Cataloging-in-Publication Data
Shane, Peter M.
Madison’s nightmare : how executive power threatens American
democracy / Peter M. Shane.
p. cm.
Includes bibliographical references and index.
ISBN-13: 978-0-226-74939-6 (cloth: alk. paper)
ISBN-10: 0-226-74939-8 (cloth: alk. paper)
1. Executive power—United States—History. 2. Separation of powers—
United States—History. 3. Representative government and representation—
United States—History. 4. United States—Politics and government—
21st century. I. Title.
jk516.s435 2009
320.473'04—dc22 2008040188
F∞ Th e paper used in this publication meets the minimum requirements of the
American National Standard for Information Sciences—Permanence of Paper
for Printed Library Materials, ANSI Z39.48-1992.
Contents
Preface • vii
1 Madison’s Nightmare: How the Federal Government Became
Unchecked and Unbalanced • 1
2 Checks and Balances in Law and History • 27
3 Iraq and the (Unlearned) Lessons of Vietnam: Presidentialism
and the Pathologies of Unilateral Policy Making • 56
4 Presidentialism, National Security, and the Breakdown of
Government Lawyering • 82
5 Form over Accountability: Executive Privilege, Signing Statements,
and the Illusion of Law • 112
6 Th e President’s Personal Bureaucracy: Administrative Accountability
and the Unitary Executive • 143
7 Recovering the Madisonian Dream: Visions of Democracy,
Steps to Reform • 175
Notes • 211
Index • 241

Preface
Our Constitution was founded on the radical hope that good government
design can so constrain the ambitions of public offi cials as to protect the
American public from tyranny and abuse. Instead of constrained ambi-
tion, however, Americans have become increasingly accustomed to gov-
ernmental audacity. Whether it is a President running foreign policy be-
hind Congress’s back, Congress impeaching a President for lying about his
sexual aff airs, or the Supreme Court eff ectively deciding a presidential elec-
tion through a dubious application of equal protection law cut from whole
cloth, we seem to have abandoned checks and balances for something very
diff erent. At this point, that “something” looks more and more like a virtu-
ally unchecked presidency, nurtured too oft en in its political aggressive-
ness by a feckless Congress and obsequious courts. A handy mnemonic
for this phenomenon might be “Guantanamo” or “Abu Ghraib,” but, as a
constitutional lawyer, what I call it is “presidentialism.” Th e increasingly
assertive claims to unilateral presidential authority, accompanied by the
occasional overreaching of the other two branches of government, add up
to the subversion of constitutional checks and balances that I have dubbed
“Madison’s Nightmare.”
Chapter 1 of this book introduces the perfect storm convergence of ex-
ecutive power and partisan aspiration that have produced our current pre-
dicament. It lays out three foundational points. Th e fi rst is the critical role
intended for checks and balances in our constitutional system. Th e second
is that the 1981–2009 campaign for policy dominance by the right wing of
the Republican Party, no matter what branch is involved, has involved a
radical attack on our constitutional system’s impetus toward consensus and
accommodation. Finally, I will explain how a coincidence of contemporary
viii • Preface
political circumstances combined with our constitutional structure has en-
abled this attack to proceed as eff ectively as it has, especially in exploiting
the historic trend toward increased executive power, in order to take the
form of aggressive presidentialism we have experienced since 1981.
Chapter 2 will then analyze the legal debates that surround the current
growth of presidential power. Th e 2006 confi rmation battle concerning Su-
preme Court Justice Samuel Alito brought to many citizens’ consciousness
the fact of a disagreement among constitutional scholars and practitioners
about something called “the unitary presidency.” Th at debate, however, is
not generally well understood. Th e legal argument in favor of presidential-
ism is constitutionally baseless, and this chapter seeks to explain why.
Chapters 3–6 then turn from legal doctrine to government practice.
Proponents of expansive executive power typically argue that the presi-
dency they envision is more likely to operate in the national interest than
a presidency fully accountable to courts and Congress. I seek to show why
this is false.
Chapter 3 looks at the making of foreign and military policy, with special
reference to our national experience in Vietnam and Iraq. In both cases, the
presidents involved were allowed to proceed, in eff ect, under the presiden-
tialists’ view of how the executive branch should operate. Yet, the history of
both wars shows how presidentialism is quite likely to degrade the quality
of executive branch decision making because it breeds a degree of isolation,
defensiveness, and ideological rigidity that will predictably undermine the
soundness of presidential decisions.
Chapter 4 looks at national security policy making, with a special focus
on the “Bush 43” Administration. It argues that presidentialism is likely to
degrade the quality of decision making for a special reason, by eroding gov-
ernment attorneys’ conscientious attention to the law, which is supposed to
operate as a check on abuses of government power. Historians wondering
why government lawyering broke down at critical points during policy de-
liberations aft er September 11 are likely to fi nd the ideology of presidential-
ism very much at work.
Chapter 5 explores the rule of law theme further. It explains how con-
temporary presidentialism has embraced an especially thin view of what
the rule of law entails. Th is tendency is exhibited in the Bush 43 Admin-
istration’s treatment of executive privilege and, most dramatically, in the
proliferation of presidential signing statements raising constitutional ob-
jections to statutes that the President is signing into law.
Th e most novel post-1981 context for presidentialist initiative has been
the assertion of presidential control over domestic regulatory policy
Preface • ix
making. Presidents do not have as wide a constitutional scope for domes-
tic policy initiative as they do in foreign aff airs and are not aff orded the
same discretion to proceed largely in secret. Presidents have thus not yet
succeeded in consolidating executive power over domestic policy making
as eff ectively as they have with regard to policy making over military and
foreign aff airs. Chapter 6 explores how Presidents Reagan through Bush 43
have, nonetheless, sought to extend such control and how, if they and their
successors prevail in this campaign, presidentialism is likely to undermine
not only the rule of law, but democratic accountability more generally.
Chapter 7 synthesizes the analysis of earlier chapters by contrasting the
models of democracy and the rule of law embedded in presidentialism and
its more appealing counterpart, constitutional pluralism. It concludes by
laying out a series of concrete steps that Americans can take to reassert the
vigor of checks and balances and curb the extreme presidentialism that our
perfect storm has wrought.
I did not start this project thinking that my end result would be a book
about the Administration of George W. Bush. Indeed, I started to lay out the
themes and arguments of this book in 1994. But the Bush 43 Administra-
tion has so perfectly demonstrated what I feared would be the dangers of
aggressive presidentialism that this presidency has become the laboratory
for illustrating many of my key points. I emphasize, however, that the risks
of presidentialism remain even as the Bush 43 Administration recedes into
history. Americans of all political stripes should want an emphatic return
to the pluralistic government of checks and balances that was Madison’s
dream.
I have been at work on this book for what I consider to be an embar-
rassingly long time. My regrettable pace, however, did give me the oppor-
tunity to develop and try out the themes and many key arguments of this
book over a series of articles and book chapters. None of my prior writings
appears intact in this book, but occasionally, especially when it comes to
chronicling specifi c events, I have found it useful to incorporate portions of
earlier-written prose. I am grateful to the publishers of the following works
for permission to do so:
Deliberative America, 1 J. Pub. Deliberation, Art. 10 (2005), available at
http://services.bepress.com/jpd/v/iss/art/.
Disappearing Democracy: How Bush v. Gore Undermined the Federal Right
to Vote for Presidential Electors, 29 Fla. St. U. L. Rev. 535–585 (2001).
Independent Policymaking and Presidential Power: A Constitutional Analy-
sis, 57 Geo. Wash. L. Rev. 596–626 (1989).