Notice & Comment

The Spoils of Presidentialism for Congress and the Court, by Bijal Shah

*This is the thirteenth 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.

In Democracy’s Chief Executive, Professor Peter Shane evocatively illustrates the prevalence and nuances of presidential “entitlement.” Shane employs stimulating historical and political narrative to demonstrate how the furtherance of unitary executive principles and practices, both explicitly (via the expansion of presidential power as a result of originalist and formalist constitutional interpretation) and implicitly (via the transformation of presidential norms), has benefitted presidents’ political (and personal!) interests. 

While Shane argues that Trump and other Republican presidents from Reagan onward have been especially (but not uniquely) entitled, he also observes that like “the plenary discretion principle and national security unilateralism, aggressive presidentialism will outlive the Trump administration, no matter who succeeds it.” [P.29.] In response to this concern, Shane makes a vital claim: that curtailing the proliferation of a unitary executive branch is important to preserving the rule of law, as opposed to merely a way to further particular policy goals. According to Shane, a sound version of constitutional pluralism could spur the institutional and societal shifts required to prevent presidents from pursuing partisan interests over the goals of a competent government and meaningful democracy. 

In the absence of constraints, our single-headed political branch, which is limited neither by consensus requirements (like Congress) nor by precedent (like the Supreme Court, ideally), will accumulate authority as a functional matter, whether or not unitary executive theory has taken hold. So, why won’t legislators and the Court reinforce the limited scope and police the legality of presidential power nowadays? I suggest that rather than witnesses to presidentialism that are gridlocked (Congress) or bound by certain forms of constitutional interpretation (the Court), the co-equal branches are participants in presidential aggrandizement perhaps because they benefit from it.

As to the legislature, Shane remarks that “the chief executive should be deeply conscious of his or her ultimate dependence on Congress for virtually all of a president’s capacity.” [P. 205.] I agree. Shane goes a step further, finding it “striking” that “modern-day presidentialists [oppose] almost any sort of presidential accountability.” [P. 11.] But then again, the legislature has not demanded this of the president recently. 

Shane recalls that in the 1970s, “Democratic majorities in Congress [were] no less deferential to a Democratic president than they had been to Republicans, at least in the conduct of oversight.” [P. 207.]  Today, legislative inertia in the face of presidential entitlement is a symptom of the fact that the legislature is “an institution in which allegiance to party has overcome allegiance to institutional integrity.” [P.206.] This implies that Congress, now “gripped by ‘the permanent campaign, the collapse of the center[, and] the transformation of intense partisanship into virtually tribal politics,’” [P. 206, citations omitted], profits by indulging the president, whose supporters determine whether legislators are (re-)elected too. 

As to the judiciary, it is possible that in addition to the result of deeply-held beliefs regarding the proper modes of constitutional interpretation, judicial support for presidentialism is now an instrument of gain. After all, presidential entitlement is not new; it has existed since FDR was in office, at least. It is rather that the judiciary is—at first blush—no longer as entitled as it once was. 

Scholars note that the Court’s response to the First New Deal “evince[d] caution toward exercises of congressional and presidential power, especially bold new initiatives.” But in the past few decades, judges have begun to enable “a too-authoritarian chief executive, rhetorically legitimated by a purportedly originalist reading of the Constitution.” [P. 226.] Maybe this is because alignment with presidentialism has become a prerequisite for appointment to the judiciary, including to the Court, whose newest Justices now join a supermajority with an interest in undermining the administrative state (also on formalist and originalist grounds), and by extension, agencies’ capacity to constrain the president. Incidentally, this set of moves promises to empower the Court itself. It may be that a professed commitment to originalism and formalism provides a measure of cover for the Court’s partially self-interested abdication of its duty to check the president. 

Shane is correct that “the more democratic reading of Article II is chiefly a narrative of the authorities granted to Congress and to the courts to check and balance the president, should they choose to do so.” [P. 206, emphasis in original.] A better understanding of the pathologies underlying the co-equal branches’ motivations for acquiescing to presidentialism could support interventions that coax them to do so. Shane offers terrific prescriptions for legislative change [PP. 207-212], but these will come to pass only if Congress is persuaded to better represent majoritarian preferences in order to constrain an office (the president) that “as shown by political scientists,” tends to “seek ‘particularistic’ policies favoring one region or constituency at the cost of the whole.” [P. 165.] 

In contrast, Shane asserts that the “[c]ourts are poorly positioned to take the creative lead in re-balancing our constitutional democracy.” [P. 207.] This is a surprising statement, given Shane’s emphasis on constitutional interpretation as a cornerstone of unitary executive theory. Perhaps if judges were no longer tempted by the rewards of capitulating to presidentialism , and if, as a result, the Court then stopped employing constitutional revisionism to reshape the structure of and weaken decisionmaking in the executive branch, it might be possible for the judiciary to take the lead on constraining the president.

 Bijal Shah is an Associate Professor of Law and Provost Faculty Fellow at Boston College Law School.

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