*This is the second post in 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.
American democracy is under threat from a frighteningly large number of sources, including from the insurrection of January 6th and the possibility of similar violent uprisings in the future; the hyper-partisan gerrymandering of legislative districts; and the moves by some state legislatures both to restrict the right to vote, as a means of addressing spurious claims of voting fraud, and to increase the risk that raw partisanship will bleed into the process of counting votes. To this sad and troubling list, we need to add the dangerous growth in presidential power that has been accruing for decades, the causes and implications of which Peter Shane comprehensively explores in his superb new book Democracy’s Chief Executive.
Professor Shane was one of a relatively small number of scholars and commentators who, before Donald Trump was elected president in 2016, warned us about the dangers of constantly expanding presidential powers. Although some Americans were troubled by the efforts of the George W. Bush administration, in the name of presidentialism, to arrogate for itself immense and unchecked powers in the fight against terrorism, once Bush left office, many seemed to lose interest in the dangers of presidentialism. Yet, the expansion of presidential powers continued unabated. The Obama administration, Professor Shane explains in Democracy’s Chief Executive, contributed to the problem by, for example, further cementing White House control, started decades earlier by the Reagan administration, over the regulatory work of federal administrative agencies; appointing large numbers of White House-based policy czars (nearly thirty in its first year in office), most of whom were not subject to Senate confirmation; and relying on the 2001 congressional Authorization to Use Military Force against al Qaeda to justify military actions years later in Syria, Somalia, Libya, and Yemen that had little connection to fighting al Qaeda.
But it was Trump’s authoritarian abuses of presidential powers that focused (or should have focused) our attention on the need to rein in the out-of-control powers of the presidency. Among many other abuses, Trump pushed Department of Justice officials to investigate political enemies and protect political friends; fired inspectors general for trying to bring greater accountability and transparency to executive branch agencies (that is, for doing their jobs); repeatedly filled top administration positions with acting officials in an effort to avoid triggering the Senate’s advice and consent power; used the presidency’s pardon power to protect and reward political cronies; repeatedly stonewalled Congress’ oversight authority, including in its exercise of its impeachment power; and used his office to benefit himself financially while his lawyers claimed that any effort to address a president’s financial conflicts-of-interests was unconstitutional because it trampled on presidential authority.
In Democracy’s Chief Executive, Professor Shane brilliantly identifies the causes for the current state of the bloated and dangerous presidency, starting with the highly questionable and problematic deployment of originalist constitutional theory to defend claims about the unitary executive. These claims include the notion that it is somehow unconstitutional for Congress to limit, however reasonably and modestly, the ability of presidents (1) to remove any member of the executive branch for any reason and (2) to influence and control all federal criminal prosecutions, including of themselves and of their closest aides and political allies. Originalist theory has also been used, since the Reagan years, to claim that the president not only has the power to oversee federal administrative agencies, but also to unilaterally direct and control all of their congressionally granted discretion. Professor Shane carefully, methodically, and persuasively shows how originalist understandings of the Constitution support none of these aggressively aggrandizing claims of presidential powers before proceeding to explain why originalism, as an interpretative theory, is flawed and fails to do what its proponents ostensibly strive for: limiting judicial discretion.
Professor Shane also points to the fact that the current Supreme Court is dominated by presidentialist justices (Roberts, Thomas, Alito, Gorsuch, Kavanaugh, and possibly Barrett) who repeatedly prioritize presidential prerogatives over congressional oversight powers. Although cases such as Humphrey’s Executor (1935) (upholding the constitutionality of so-called independent federal agencies) and Morrison v. Olsen (1988) (upholding the placing of reasonable limits on the president’s ability to dismiss statutorily-appointed independent counsels investigating alleged wrongdoing by members of the executive branch) remain good law, they seemingly hang by a thread given that it does not appear that there are five votes on the current Court to uphold them. (We also know that the current Court’s commitment to stare decisis is, to say the least, suspect. See Dobbs v. Jackson Women’s Health Organization.)
To his credit, Professor Shane does not limit his causal analysis of the bloated and dangerous presidency to the Constitution and its interpretation. He also correctly points to how Congress’ abdication of not only its authority to oversee the presidency but also to set policy through legislation (!) has created a power vacuum that presidents have been only too happy to fill by issuing an endless stream of executive orders and emergency declarations. Members of Congress, in recent decades, seem to have lost interest in defending their body’s institutional prerogatives in the face of aggressive presidentialism, except when doing so scores political points against a president of the other party.
Professor Shane also notes the role that the nation’s growing economic inequality, when coupled with the ever-expanding political influence of large corporations and wealthy individuals, has played in deepening political partisanship and resentments, which in turn has paved the way for the emergence of demagogues who “inevitably offer their own ascent to power as the cure for the resentments they strike. Polarization accelerates a vicious cycle potentially fatal to democracy.” Trump’s election as president was the clearest example of this troubling phenomenon. The resentment fostered by economic and political inequality helped get Trump elected, while his governance engendered even more political and economic inequality, more resentment, and, alas, more presidential aggrandizement.
Democracy’s Chief Executive not only identifies the causes of aggressive presidentialism, but also offers a series of thoughtful reform proposals centered on expanding democratic practices, accountability, and transparency. In doing so, Professor Shane urges replacing the originalist constitutionalism that dominates our era with a living constitutionalism that interprets the document based not only on its text, but also according to precedent, custom, and contemporary needs. What should matter most in interpreting ambiguous constitutional provisions is not what a handful of men, long dead, thought of them, but of how they can be used to “strengthen both the electoral and deliberative sides of America’s hybrid democracy.” In the same way that Chief Justice John Marshall interpreted the Constitution in the early nineteenth century through the lens of nation building, judges in the early twenty-first century should interpret the document, including its allocation of executive power, through the lens of electoral and especially deliberative democracy. A unitary understanding of executive power that provides few meaningful checks and balances on the presidency fails to foment adequate deliberation outside the confines of White House conference rooms and provides little accountability for the exercise of presidential power.
At the same time, Professor Shane understands that the problem of aggressive presidentialism will not be solved solely, or even primarily, through the courts and constitutional interpretation. True accountability for the presidency will only come about through the involvement of Congress and the reenergizing of American democracy. Professor Shane therefore argues that Congress should, for example, bring the president’s involvement with agency administrative processes within the purview of the Administrative Procedure Act; limit the president’s ability to fire inspectors general and U.S. attorneys without good cause; curb presidential unilateralism in war making; and reform the president’s emergency powers. Democracy’s Chief Executive also offers several proposals for reenergizing democracy, including by reducing barriers to democratic participation in existing institutions, by strengthening institutions that citizens rely on to receive relevant and non-partisan information about public affairs, and by enabling the “less wealthy and other underrepresented groups to build organizations capable of countervailing the political power of the wealthy.”
I am sorry if it makes for a book review essay with insufficient titillation engendered by disagreement and criticism, but I fully agree with Professor Shane’s diagnosis of the democracy-endangering threats of aggressive presidentialism. I am also not sure that I can offer better suggestions for how to address the threats. (My one quibble is that, as I suggest in my book Principles Matter, it may be worth pushing for a more meaningfully restrictive non-delegation doctrine as a means of encouraging greater congressional involvement in the setting of policy while seeking to constrain—or at least slow down—the aggrandizement of presidential authority.) Of all the threats facing American democracy, I believe that aggressive presidentialism, with its built-in feedback loop propelling ever-expanding powers, is the gravest and most ominous hazard to the people’s ability to self-govern because of its promotion of authoritarian, one-person rule. As I explain in Principles Matter, if this threat was still not apparent to some before Trump was elected president, his disastrous governance—disastrous for democratic institutions and values, for traditionally subjugated minorities, and for the nation as a whole—should make it crystal clear.
Some of the other threats to the democracy seem more realistically addressable than the dangers resulting from the ever-expanding powers of a bloated presidency. The risk of future insurrections, for example, can be mitigated through criminal prosecutions of those who use violence to achieve political ends; partisan gerrymandering can be reduced through the creation of independent legislative districting commissions; and voting restrictions can be lifted through new legislation that makes it easier rather than more difficult for people to vote. But controlling the powers of the presidency, after they have already reached dangerous proportions, in the face of (1) deep partisan polarization, (2) intensifying economic and political power disparities, (3) a timid Congress, and (4) strong political pressure on presidents of both parties to use their power “to get things done” while worrying about the long-term institutional consequences later (if ever), seems to border on the unlikely if not the impossible.
I felt this pessimism before I read Professor Shane’s new book. If anything, I feel even more pessimistic after completing it. That is, of course, not his fault; it is instead the result of his uncanny ability to shed rigorous analytical light on the vastness of the problem. At the end of the day, I do not know whether the democracy will survive the built-in incentives and anti-deliberative institutional pressures for ever-expanding presidential powers that are baked into our contemporary politics and polity. But I am glad that, at least, we have Professor Shane doing what he can to alert us to the faulty constitutional reasoning, irresponsible political expediency, and worrisome authoritarian risks and realities that accompany aggressive presidentialism.
Carlos A. Ball is a Distinguished Professor at Rutgers Law School. His most recent book is Principles Matter: The Constitution, Progressives, and the Trump Era.