Eleven reasons why presidential power inevitably expands and why it matters

Boston University Law Review

Volumn 88, Issue 2, 2008, Pages 505-522

  Marshall, William P ^a  

^a UNIVERSITY OF NORTH CAROLINA   (United States)

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EID: 44849103388     PISSN: 00068047     EISSN: None     Source Type: Journal    
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References (113)

1. Constitutional views concerning federalism, as well, have not been immune from political considerations. See Kathleen M. Sullivan, From States' Rights Blues to Blue States' Rights: Federalism After the Rehnquist Court, 75 FORDHAM L. REV. 799, 801 (2006). Indeed, although liberals, for example, have long resisted constitutional theories that protect states' rights, their views on this issue have begun to change as states have begun to be more progressive than the federal government on many issues. Id. at 811;
2. see also Scott A. Moss & Douglas M. Raines, The Intriguing Federalist Future of Reproductive Rights, 88 B.U. L. REV. 175, 224 (2008) (commenting that "federalism can be ideologically indeterminate," and "friend or foe to progressive movements").
3. See, e.g., Dana Milbank, In War, It's Power to the President, WASH. POST, Nov. 20, 2001, at A01.
4. See infra text accompanying note 19.
5. Martin S. Flaherty, The Most Dangerous Branch, 105 YALE L.J. 1725, 1816-17 (1996);
6. Abner S. Greene, Checks and Balances in an Era of Presidential Lawmaking, 61 U. CHI. L. REV. 123, 125 (1994) ("Now, it is the President [instead of Congress] whose power has expanded and who therefore needs to be checked.").
7. THE FEDERALIST NO. 51, at 322 (James Madison) (Clinton Rossiter ed., 1961).
8. Id.
9. Id.
10. Id. at 322-23; Greene, supra note 4, at 141-48.
11. See Flaherty, supra note 4, at 1727.
12. E.g., Flaherty, supra note 4, at 1818 (1996); Harold Hongju Koh, Setting the World Right, 115 YALE L.J. 2350, 2350 (2006). To be sure, the position that the Presidency has become too powerful in the areas of national security and foreign affairs is not unanimous. Elsewhere in this Symposium, for example, John Yoo argues that there have been few great Presidents in recent history, with the implicit suggestion that this might be true because presidential power is unduly constrained, even in the areas of foreign policy and national security.
13. John Yoo, Jefferson and Executive Power, 88 B.U. L. REV. 421 (2008). But if the ability of an individual to achieve greatness in office is a function of the power of that office, then consider the record of Congress. How many Congressional leaders in the last fifty years have been able to demand and command national attention for their agendas and have been able to successfully effectuate their goals? It's a short list, arguably including only Lyndon Johnson and Newt Gingrich. Perhaps even more probative in demonstrating Congress's relative weakness is that even during times of severely wounded Presidencies, such as those of Nixon in 1974, Carter in 1980, or Bush in 2007, effective national leadership did not emerge from the Congress. The bottom line is that the weakest president at his worst hour is far more powerful than any Senator or member of the House.
14. See supra note 10. Whether the executive has achieved a similar dominance over Congress in the domestic arena is less clear and has spawned a serious and spirited academic debate. See, e.g., Steven G. Calabresi & Saikrishna B. Prakash, The President's Power To Execute the Laws, 104 YALE. L.J. 541, 550 (1994); Flaherty, supra note 4, at 1816-17;
15. Neal Kumar Katyal, Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within, 115 YALE L.J. 2314, 2316 (2006);
16. Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV. 1, 5 (1994);
17. Jonathan Macey, Executive Branch Usurpation of Power: Corporations and Capital Markets, 115 YALE L.J. 2416, 2418 (2006).
18. Adam Nagourney & Megan Thee, With Iraq Driving Elections, Voters Want New Approach, N.Y. TIMES, Nov. 2, 2006, at A1.
19. See Harold J. Krent, From a Unitary to a Unilateral Executive, 88 B.U. L. REV. 523, 523 (2008).
20. See generally ARTHUR M. SCHLESINGER, JR., THE IMPERIAL PRESIDENCY (1st ed. 1973) (focusing on the purported executive branch abuses of the Nixon Administration). But see RICHARD E. NEUSTADT, PRESIDENTIAL POWER AND THE MODERN PRESIDENTS, at ix (1990) (arguing that the Presidency is relatively weak). Interestingly, Neustadt does not argue that the Presidency is weak in an absolute sense. Rather, his definition of weakness, as he makes clear in the preface to the 1990 edition of his book, relates to the gap between "what is expected of a man (or someday a woman) and assured capacity to carry through." Id.
21. 343 U.S. 579 (1952).
22. Id. at 653-54 (Jackson, J., concurring).
23. See id. This is not to say that personality has not played a part. The efforts of Presidents Reagan and Clinton, for example, to give the President greater control over federal agency action have had substantial effects in consolidating presidential authority over the administrative state. See Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2248 (2001).
24. Cf. Youngstown, 343 U.S. at 653-54 (Jackson, J., concurring).
25. BARBARA HINCKLEY, THE SYMBOLIC PRESIDENCY: HOW PRESIDENTS PORTRAY THEMSELVES 8 (1990).
26. U.S. CONST. art. I, § 8.
27. Id. art. II, § 1.
28. Id. art. II, § 3.
29. See, e.g., Calabresi & Prakash, supra note 11, at 550; Greene, supra note 10, at 123. But see Chambers v. NASCO, 501 U.S. 32, 44 (1991) (holding courts have the inherent power to sanction litigants); McGrain v. Daugherty, 273 U.S. 135, 174-176 (1927) (indicating that the Congress enjoys a non-textually explicit power to investigate executive branch malfeasance).
30. See Henry P. Monaghan, The Protective Power of the Presidency, 93 COLUM. L. REV. 1, 11 (1993). But see Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952).
31. United States v. Nixon, 418 U.S. 683, 713 (1974).
32. See, e.g., United States v. Lopez, 514 U.S. 549, 551-58 (1995); Wickard v. Filburn, 317 U.S. 111, 118 (1942).
33. See, e.g., Allen v. Wright, 468 U.S. 737, 752 (1984); Baker v. Carr, 369 U.S. 186, 237 (1962).
34. 343 U.S. 579 (1952).
35. Id. at 637 (Jackson, J., concurring).
36. See HINCKLEY, supra note 19, at 8; Flaherty, supra note 10, at 1816.
37. See Flaherty, supra note 4, at 1816.
38. See HINCKLEY, supra note 19, at 9-11.
39. See id. at 8. Richard Neustadt, of course, recognized the negative aspects that the expectations game placed on presidential power. See NEUSTADT, supra note 14, at ix. In his view, the fact that a President could often not perform all that was expected of him tended to weaken rather than empower the Presidency.
40. See, e.g., Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive During the First Half-Century, 47 CASE W. RES. L. REV. 1451, 1561 (1997); Flaherty, supra note 10, at 1819.
41. See Calabresi & Yoo, supra note 34, at 1561; Yoo, supra note 10, at 441.
42. Id.
43. A notable exception to this is President Washington's decision not to seek a third term. See Bruce G. Peabody & Scott E. Gant, The Twice and Future President: Constitutional Interstices and the Twenty-Second Amendment, 83 MINN. L. REV. 565, 575-76 (1999) ("Washington's refusal to run for a third term - despite popular and political enthusiasm for his continued service - helped steer the nation clear of monarchy and established a de facto two-term limit on presidential service."). Until Franklin Roosevelt sought a third term in 1940, Washington's forbearance stood as setting an unwritten constitutional norm that Presidents should seek no more than two terms. See id. at 578-79. The two-term limit, of course, eventually became a hard rule of law. U.S. CONST. amend. XXII. In response to Roosevelt, a constitutional amendment imposing the two-term limit was enacted in 1951. Id.
44. See, e.g., Doe v. Bush, 322 F. 3d 133 (2003); Ange v. Bush, 754 F. Supp. 509 (1990).
45. H. JEFFERSON POWELL, THE CONSTITUTION AND THE ATTORNEYS GENERAL, at xvii (1999).
46. Id.; see also Cornelia T.L. Pillard, The Unfulfilled Promise of the Constitution in Executive Hands, 103 MICH. L. REV. 676, 682 (2005) (characterizing the OLC, along with the Office of the Solicitor General, as the "principal constitutional interpreters for the executive branch").
47. Concededly, this is not always the case. As Nina Pillard notes, there are two competing models of executive branch lawyering: the "arms-length" and the "client" models. Significantly, the arms-length (or idealistic vision) posits that the lawyers act, not as "advocates for executive power" but as "proponents of the best view of the law." Pillard, supra note 40, at 685. As such, lawyers working under this approach can be expected to provide checks, rather than support, against executive branch expansion. The client model, in contrast, provides that the government lawyers use their legal skills to further the interests of their client, the President. Under this model, government lawyers, rather than being a check on presidential power, are agents of it, subject only to internal conscience or ethical constraints. The problem, however, is that because the President controls the DOJ, he can effectively choose the client model of executive branch lawyering if he is at all inclined to aggressively assert presidential prerogative.
48. See infra note 47 and accompanying text.
49. The ability (and motivation) of the Attorney General to challenge a President is also likely to be particularly diminished in times of crisis. The most famous documented example of this involves Attorney General Francis Biddle and the evacuation of Japanese Americans during World War II. Although Biddle had considerable doubts as to the constitutionality of the evacuation order, he ended up dropping his opposition in the face of military objections and a President who had, nonetheless, decided to go through with the action. GREG ROBINSON, BY ORDER OF THE PRESIDENT 107 (2001).
50. See Pillard, supra note 40.
51. See, e.g., Dan Eggen, Staff Opinions Banned in Voting Rights Cases, WASH. POST, Dec. 10, 2005, at A03 (documenting how career DOJ attorneys were marginalized by political appointees in certain voting rights cases).
52. The term "groupthink" was coined originally by Yale social psychologist Irving Janis as "a mode of thinking that people engage in when they are deeply involved in a cohesive in-group, when the members' strivings for unanimity override their motivation to realistically appraise alternative courses of action." See generally IRVING JANIS, GROUPTHINK: PSYCHOLOGICAL STUDIES OF POLICY DECISIONS AND FIASCOES (2d ed. 1982). Janis developed this theory by examining how "small, high-level groups of government officials used faulty decision making procedures that resulted in fiascoes in U.S. policy,"
53. Marleen A. O'Connor, The Enron Board: The Perils of Groupthink, 71 U. CIN. L. REV. 1233, 1257 (2003), such as Roosevelt's complacency before Pearl Harbor, Truman's invasion of North Korea, Kennedy's Bay of Pigs, Johnson's escalation of the Vietnam War, and Nixon's Watergate break-in. According to Janis, under the influence of groupthink, groups believe that their goals are based on ethical principles and they stop questioning the morality of their behavior. This tendency may foster overoptimism, lack of vigilance, and sloganistic thinking about out-groups. At the same time, groupthink causes members to ignore negative information by viewing messengers of bad news as people who "don't get it." JANIS, supra. Thus, Janis explains, group members engage in self-censorship to repress dissent. IRVING JANIS, VICTIMS OF GROUPTHINK (1972).
54. LUTHER A. HUSTON, ARTHUR S. MILLER, SAMUEL KRISLOV, & ROBERT D. DIXON, JR., ROLES OF THE ATTORNEY GENERAL OF THE UNITED STATES 51 (1968).
55. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 648 n.17 (1952) (Jackson, J., concurring); see also LINCOLN CAPLAN, THE TENTH JUSTICE: THE SOLICITOR GENERAL AND THE RULE OF LAW 277 (1987) (ascribing to the Solicitor General's Office under President Reagan the practice of routinely elevating politics over independent legal judgment in pursuing its cases).
56. HUSTON, MILLER, KRISLOV, & DIXON, JR., supra note 47, at 52.
57. Gary Lawson, The Rise and Rise of the Administrative State, 107 HARV. L. REV. 1231, 1233-37 (1994).
58. See Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 COLUM. L. REV. 573, 587-91 (1984).
59. See id. at 583-86.
60. See, e.g., id.; Neal Devins & David E. Lewis, Not-So Independent Agencies: Party Polarization and the Limits of Institutional Design, 88 B.U. L. REV. 459, 463 (2008) (listing portions of regulatory policy delegated to administrative agencies).
61. Gary Lawson, Delegation and Original Meaning, 88 VA. L. REV. 327, 334 (2002).
62. Cf. Strauss, supra note 51, at 587 (describing the degree to which administrative agencies are centrally managed by the President).
63. See id.
64. See Sidney A. Shapiro & Richard E. Levy, Heightened Scrutiny of the Fourth Branch: Separation of Powers and the Requirement of Adequate Reasons for Agency Decisions, 1987 DUKE L.J. 387, 440; Strauss, supra note 51, at 578-79.
65. Krent, supra note 13, at 524.
66. See Kagan, supra note 17, at 2248.
67. Krent, supra note 13, at 532.
68. Kagan, supra note 17, at 2290.
69. Patricia M. Wald & Jonathan R. Siegel, The D.C. Circuit and the Struggle for Control of Presidential Information, 90 GEO. L.J. 737, 737 (2002).
70. Id.
71. For a discussion of the conflicts between the Executive branch and Congress over access to information, see Neal Devins, Congressional-Executive Information Access Disputes: A Modest Proposal - Do Nothing, 48 ADMIN. L. REV. 109, 111-16 (1996).
72. Id. at 119-20.
73. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 653-54 (Jackson, J., concurring).
74. For an account of the power of image in politics, see NEIL POSTMAN, AMUSING OURSELVES TO DEATH 7, 125-41 (1986).
75. Youngstown, 343 U.S. at 653-54.
76. See, e.g., HINCKLEY, supra note 19, at 12.
77. Id. at 10.
78. Id.
79. Id. at 11.
80. See Juilee Decker, Paintings and Sculptures, in THE AMERICAN PRESIDENT IN POPULAR CULTURE 15-28 (John W. Matviko ed., 2005);
81. Hanna Miller, Memorabilia, in THE AMERICAN PRESIDENT IN POPULAR CULTURE, supra, at 3.
82. Indeed, as part of this trend, presidents in recent years have more frequently used venues of popular culture, such as late night television and radio talk shows, as vehicles to further their political agendas. See POSTMAN, supra note 67, at 132. For a more recent account of this phenomenon, see Hillary Clinton to Visit Letterman Again, MSNBC, Jan. 30, 2008, http://www.msnbc.msn.com/id/22901851, which lists recent visits to Letterman's show by presidential hopefuls.
83. U.S. CONST. art. II, § 2; Norman C. Bay, Executive Power and the War on Terror, 83 DENV. U. L. REV. 335, 338 (2005).
84. An extreme example of how such power could be used by an Administration to control its citizenry is, of course, the subject of George Orwell's classic novel 1984. See GEORGE ORWELL, 1984 (1949).
85. See, e.g., Cohen Criticizes 'Wag the Dog' Characterization, CNN ONLINE, Mar. 23, 2004, http://www.cnn.com/2004/ALLPOLITICS/03/23/wag. dog/index.html;
86. Byron York, Gen. Water-Carrier: Henry H. Shelton of the Joint Chiefs. (Testimony Before the Senate Armed Services Committee on Dangers of Republican Budget Cuts), NAT'L REV., Dec. 20, 1990, at 26.
87. DeWayne Wickham, McClellan Admission Evokes Memories of Nixon Era, USA TODAY, Nov. 27, 2007, at 13A.
88. But cf. Jordan J. Paust, Use of Armed Force Against Terrorists in Afghanistan, Iraq, and Beyond, 35 CORNELL INT'L L.J. 533, 533-37 (2002) (recounting Congress's authorization of the use of military force against terrorists seven days after 9/11 and the subsequent invasion of Afghanistan).
89. On the power of media to set the general political agenda, see generally DORIS A. GRABER, MEDIA POWER IN POLITICS (4th ed. 2000).
90. Mark Tushnet, Controlling Executive Power in the War on Terrorism, 118 HARV. L. REV. 2673, 2678 (2005); NEUSTADT, supra note 14, at 247.
91. Joseph Gershtenson, Mobilization Strategies of the Democrats and Republicans, 1956-2000, 56 POL. RES. Q. 293, 295 (2003).
92. Id.
93. See Joshua Green, The Rove Presidency, THE ATLANTIC, Sept. 2007, at 52, for documentation of Congressional Republicans' reluctance to challenge President Bush even when disagreeing with his policies.
94. Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 HARV. L. REV. 2311, 2316-23 (2006).
95. See supra notes 5-8 and accompanying text.
96. Congress, of course, does have a substantial array of weapons at its disposal in its battles with the Presidency. See Louis Fisher, Congressional Access to Information: Using Legislative Will and Leverage, 52 DUKE L.J. 323, 324 (2002). The question here, however, is whether Congress's powers vis-à-vis the Presidency have expanded at the same rate as the president's powers vis-à-vis Congress.
97. See, e.g., McGrain v. Daugherty, 273 U.S. 135, 161 (1927); William P. Marshall, The Limits on Congress's Authority To Investigate the President, 2004 U. ILL. L. REV. 781, 782-83. Interestingly, the recognition of Congress's investigatory power is not new and dates back to an investigation of a failed military campaign during the Washington Administration. Id. at 786-88.
98. For a history of congressional investigations from the beginning of the nation through the nineteenth century on to 1974, see CONGRESS INVESTIGATES: A DOCUMENTED HISTORY, 1792-1974 (Arthur M. Schlesinger, Jr. & Roger Bruns eds., 1975).
99. Unfortunately, however, Congressional investigations have also been used as political weapons to illegitimately distract Presidents from pursuing their agendas, see, e.g., BENJAMIN GINSBERG & MARTIN SHEFTER, POLITICS BY OTHER MEANS 22-23 (3d ed. 2002) (discussing Congress's abuse of its investigatory powers); see also Marshall, supra note 88.
100. See generally JACK L. GOLDSMITH, THE TERROR PRESIDENCY: LAW AND JUDGMENT INSIDE THE BUSH ADMINISTRATION (2007) (explaining that some of the Administration's actions in the war on terror were kept secret from the coordinate branches).
101. U.S. CONST. amend. XXII.
102. See U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995).
103. Devins & Lewis, supra note 53, at 482.
104. Id. at 467. It is also noteworthy, as the experiences of the Republican Congress under President Clinton and the Democratic Congress under Bush II demonstrate, that any congressional threat to cut off funding to the executive branch may be a threat that endangers the Congress more than it does the President.
105. But see Paust, supra note 79, at 533-37.
106. THE FEDERALIST NO. 51, at 321-22 (James Madison) (Clinton Rossiter ed., 1961).
107. I have suggested elsewhere that one way to weaken executive power is to follow the state model and adopt a divided executive. See William P. Marshall, Break Up the Presidency? Governors, State Attorneys General, and Lessons from the Divided Executive, 115 YALE L.J. 2246, 2248 (2006).
108. See supra note 41.
109. See generally Dawn Johnsen, Guidelines for the President's Legal Advisors, 81 IND. L.J. 1345 (2006).
110. Steven G. Calabresi, Some Normative Arguments for the Unitary Executive, 48 ARK. L. REV. 23, 25 (1995).
111. Vice President Cheney made such an argument in his dispute over the release of the names of the participants on his energy task force. According to the Vice President, the information was entitled to complete protection under the Recommendations Clause, on grounds that the task force was formed to help the president make legislative recommendations to Congress. See U.S. CONST. art. II, § 3; Walker v. Cheney, 230 F. Supp. 2d 51, 59-60 (D.D.C. 2002).
112. For the reasons discussed above, though, I am skeptical as to whether such vigorous oversight would actually occur. See supra notes 82-85 and accompanying text.
113. The work of Jack Goldsmith particularly deserves to be lauded in this respect. See generally GOLDSMITH, supra note 90.