*This is the fourth 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.
It is a pleasure to participate in this symposium on Peter Shane’s new book, Democracy’s Chief Executive: Interpreting the Constitution and Defining the Future of the Presidency. Like many others, I have benefitted from Shane’s past work, and the new book is similarly insightful. Scholars concerned about the future of presidential powers within the American constitutional system will want to grapple with these arguments.
The book is driven by a couple of primary concerns and a distinctive theoretical perspective. Donald Trump looms large over the book. His term of office highlights for Shane the dangers that the presidency now presents for American democracy. Rather than being an unfortunate one-off or a unique result of Trump’s particular flaws, Shane sees the Trump presidency as the culmination of forces that long predated Trump. Again and again Shane emphasizes that Trump has merely exposed the threat that was already implicit in the modern presidency. Trump’s exercise of power revealed how much authority had become lodged in the White House. What is worse, Trump demonstrated how weak the checks on presidential power had become. A president who is inclined to abuse his office has few serious restraints to overcome.
So what were the sources of Trump’s power? Shane blames constitutional theory, or more specifically the constitutional theory of the executive branch that has been advanced by conservative lawyers in the executive and judicial branches of the federal government. More particularly, Shane singles out three distinct but mutually reinforcing theories that are responsible for our present predicament. The most familiar is the theory of the unitary executive, by which the president is understood to have oversight of the entirety of the executive branch backed by the authority to remove executive officers who buck presidential preferences. Less familiar in name but fairly familiar in content are two more theoretical strands. One he characterizes as “national security unilateralism,” which he understands to include a broad authority of the president to make policy on his own authority affecting a wide range of foreign affairs and national security domains from warmaking to surveillance. John Yoo is the bête noire here. The other he characterizes as a “plenary discretion principle,” which he understands to mean that when presidents exercise their constitutional authority under Article II they are beyond review or regulation by the other branches of government. Shane sees all three theories as products of the conservative legal movement and a misguided commitment to and application of originalism.
In the final chapters of the book, Shane offers an alternative theoretical perspective. Although he thinks the conservatives have offered a historically mistaken version of originalism, Shane does not propose that originalism be done better. He would prefer that it be abandoned as a general approach to constitutional interpretation. In its place he offers a normative theory of deliberative democracy. At least when making sense of core features of the presidency and the broader system of separated powers, Shane thinks that we are necessarily in the “construction zone” where we must simply seek the spirit of the Constitution.
How should the spirit move us? Shane thinks the presidency should be reconstructed so it both serves democratic ends and reflects democratic values. A democratic constitutionalism, he believes, would be sensitive to the need “for more inclusive democratic deliberation both within and among the branches of government” and for “respecting long-standing patterns of interbranch interaction in deciding on questions regarding the scope of presidential and congressional power.” In practice this means giving Congress far more authority to regulate and supervise the workings of the executive branch and stripping the occupant of the Oval Office of the many “entitlements” that have built up around him.
The idea of a democratic presidency of this sort is intriguing but underdeveloped. In some ways the ambition seems to be to offer a broad normative theory of the American constitutional system. Unlike writers such as John Hart Ely and Ronald Dworkin, Shane is not immediately interested in how judicial review is exercised and how individual rights are defined. He correctly thinks the scope and relationship of the powers of Congress and the presidency are of critical concern to the workings of American democracy and deserve serious attention from normative constitutional theory. But the democratic theory of the separation of powers that Shane has in mind is only sketched out at the end of the book. He does not detail the normative underpinnings of the theory that would serve to motivate our embrace of it and our rejection of alternative approaches to thinking about these problems. Partly as a result the theoretical structure is not established with enough detail to provide us with guidance for how we should resolve future questions. Even if one is attracted to the general idea of “democracy’s presidency,” it is not clear that this is the right instantiation of these values.
Setting aside any quibbles one might have with the normative perspective, there is a broader question about the implicit assumption that flawed theories are at the heart of our political problems. On this I am quite skeptical. Shane emphasizes the legal arguments advanced by conservative lawyers, judges and administrations, but downplays the extent to which many of the ideas about executive power that he would want to reject have been adopted, used, and extended by Republican and Democratic presidents alike. The handful of Supreme Court opinions that have backed presidentialist arguments are portrayed as having great causal significance, but the driving forces behind the growth of presidential power would seem to be deeper and at play earlier than the judicial opinions endorsing those developments.
One might have thought that there would have been a strong political reaction to the Trump presidency comparable to the congressional response to presidencies of Lyndon Johnson and Richard Nixon, but we see little evidence of such a readjustment of the balance of power between the executive and the legislature. While Democrats complained about how the Trump administration exercised power, they made little effort to rethink the power of the presidency more generally or advance any reforms aimed at curbing presidential power. Democratic presidential aspirants instead showed their eagerness to make use of the same powers that they complained Trump was abusing. Congressional leaders of neither political party seem capable of envisioning a newly empowered Congress, and no important political actors seem inclined to strip the presidency of power.
Perhaps this is a failure of imagination and Shane’s arguments could inspire new legislative action. But it seems more likely that the supports for presidential power lie less in the lack of imagination of politicians than in their incentives. Power has accumulated in the presidency less because political leaders have been persuaded by the theory of the unitary executive than because the rise of the presidency is politically useful given the functions and responsibilities of the federal government and the interests of elected politicians. Presidents seem unlikely to embrace greater self-restraint, and there is no sign that Congress wants to do the work necessary to take back powers that it has abdicated.
The fundamental challenge to the realization of Shane’s vision is ultimately a political one. Its first precondition is that Congress want to exercise more power and responsibility. It is not obvious that Congress does.
Keith E. Whittington is the William Nelson Cromwell Professor of Politics at Princeton University and a visiting fellow at the Hoover Institution.