Symposium Introduction: Peter M. Shane, “Democracy’s Chief Executive: Interpreting the Constitution and Defining the Future of the Presidency,” by Andrea Scoseria Katz
*This is the introduction to a symposium on Peter Shane’s “Democracy’s Chief Executive: Interpreting the Constitution and Defining the Future of the Presidency.” For other posts in the series, click here.
For years, Peter Shane has been sounding the alarm against an overgrown (here, he calls it “entitled”) presidentialism that seems to admit of no legal limits. An expert on executive power, Shane served as an attorney-adviser in the Carter Office of Legal Counsel and assistant general counsel in the Office of Management and Budget, and since 1981 has been writing on constitutional and administrative law. From an early focus on policymaking in the regulatory state, Shane’s recent work has branched out into the sphere of democratic theory. He has also become one of the most important watchers of American presidential power: his 2009 book Madison’s Nightmare: How Executive Power Threatens American Democracy indicted presidential norm-breaching during the post-9/11 era, and his newest work, Democracy’s Chief Executive, a dangerous culture of presidential enablement by a weakened Congress and dogmatic Supreme Court.
Where to begin? Shane diagnoses various fissures in American democracy that have produced a centripetal migration of power toward the presidency. The Trump administration was an outlier in presidential “antidemocratic norm-breaking,” but similar practices predated Trump, and his 2020 ouster did not extinguish the threat. Since the early ‘80s, what Shane calls a presidentialist version of the Constitution has gained the upper hand across the branches of government. Within the executive branch, functions like criminal prosecution, personnel decisions, and policymaking have become centralized and politicized by presidents of both parties. Congress, divided by ideology and internal rules, fails to exercise meaningful oversight, delegating increasingly open-ended powers to the President by statute. The Supreme Court, under the sway of the twin doctrines of originalism and unitary executive theory, not only condones the presidentialist constitution, but barricades it from being rolled back. Finally, an American public is kneecapped in its watchdog capacity by polarization, inequality, the vanishing of local newspapers, the decline of public education, electoral gerrymandering and other factors.
Shane is too committed a democrat—or too tactful—to leave his readers in a shroud of gloom, and he offers a wide-ranging slate of proposals to “break the grip of presidentialism.” One is to urge those of us in the legal community to counter entitled presidentialism with a democratic constitutionalist vision. On this view, although the president exercises important powers under Article II, these must be subject to congressional oversight, which will multiply opportunities for “interbranch policy dialogue” and “ope[n] more options for public input into executive-branch decision-making.” That Shane’s plan begins with legal doctrine makes sense, given that making presidential reforms stick will necessitate persuading the current Supreme Court to change its own mind.
This notwithstanding, Shane believes it is Congress that must “take the creative lead in re-balancing our constitutional democracy.” A raft of new statutes follows from this proposal. One would bring administrative processes within the purview of the Administrative Procedure Act. Another would prevent the President from politicizing or tampering with the hiring and firing quasi-judicial agency officials, federal prosecutors, and inspectors general. Congress could create a legislative office of legal counsel as a healthy competitor to encourage the OLC to prize rigor and integrity in its opinions. It should cut back on presidents’ use and abuse of the war powers and emergency powers through revision of key statutes (the 2002 AUMF, the 1977 IEEPA, and the 1973 War Powers Resolution) whose frameworks have proven overly open-ended or unworkable. Finally, to make investigation and prosecution of presidential malfeasance more vigorous, while less susceptible to the perception of polarization, Congress should consider authorizing a judicial panel to appoint an independent counsel with past prosecutorial experience and who belongs to the party of the past president!
For better or worse, much of Congress’ recent “supine posture” vis-à-vis the president is traceable to “the political agendas of the particular senators and representatives we elect,” which raises the question: aren’t the incentives for Congress to change its behavior practically nonexistent? Shane acknowledges Congress is unlikely to act without an “external shock,” and by that, he means more and better quality democracy. Support for this includes anything from making voting registration easier to supporting public funding for news outlets, to rebuilding public schools and libraries, and catalyzing local civic deliberation and activism. Engagement, participation and deliberation are crucial, Shane writes, and Americans must replace a “them-versus-us” relationship with their government to one that sees “‘those of us who serve the community by working in government’ and ‘those of us who exercise citizenship in other ways.’”
Is all this an “excessively wide-angle view” ranging far away “from ruminations about the presidency,” as Shane asks? I’ll leave it to the fourteen legal scholars who have graciously agreed to discuss Democracy’s Chief Executive on this blog over the next three weeks to pore over the nuances of Shane’s diagnoses and the attractiveness of his prescriptions. It’s an incredibly rich slate of thinkers (schedule below), and each day, we’ll hear from one of them, after which Shane himself will offer a response. I hope our readers will enjoy the debates, and feel challenged to engage more deeply with our presidentialist constitution themselves.
Mon, 10/24 Andrea Katz
Tue, 10/25 Rick Pildes
Wed, 10/26 Carlos Ball
Thurs, 10/27 Victoria Nourse
Fri, 10/28 Keith Whittington
Mon, 10/31 Lisa Heinzerling
Tue, 11/1 Glen Staszewski
Wed, 11/2 Dan Farber
Thurs, 11/3 Chris Walker
Fri, 11/4 Gillian Metzger
Mon, 11/7 Michael Sant’Ambrogio
Tue, 11/8 Cristina Rodriguez
Wed, 11/9 Ilya Somin
Thurs, 11/10 Bijal Shah
Fri, 11/11 Blake Emerson
Andrea Scoseria Katz is Associate Professor of Law at WashULaw.