Constitutional dictatorship: Its dangers and its design

Minnesota Law Review

Volumn 94, Issue 6, 2010, Pages 1789-1866

  Levinson, Sanford ^a   Balkin, Jack M ^b  

^a UNIVERSITY OF TEXAS AT AUSTIN   (United States)

^b YALE UNIVERSITY   (United States)

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EID: 79251616668     PISSN: 00265535     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (508)

1. BOB WOODWARD, BUSH AT WAR 145-46 (2002). Bush famously designated himself "the decider" in 2006, when asked why he was retaining Donald Rumsfeld as Secretary of Defense in spite of increasing calls, some from retired military officers, for Rumsfeld's dismissal. "I hear the voices, and I read the front page, and I know the speculation. But I'm the decider, and I decide what is best."
2. Sheryl Gay Stolberg, The Decider, N. Y. TIMES, Dec. 24, 2006, at 4. Bush waited until after the 2006 elections to remove Rumsfeld.
3. See Sheryl Gay Stolberg & Jim Rutenberg, Rumsfeld Resigns; Bush Vows 'To Find Common Ground'; Focus Is on Virginia, N. Y. TIMES, Nov. 9, 2006, at A1.
4. Cf. Miguel Schor, Constitutionalism Through the Looking Glass of Latin America, 41 TEX. INT'L L. J. 1, 6 (2006) (noting the constitutional differences between dictatorships and democracy).
5. Cf. J. M. Balkin, Nested Oppositions, 99 YALE L. J. 1669, 1678-82 (1990) (book review) (explaining how legal and political ideas and institutions that appear to be opposed, on further investigation, depend on or include elements of each other).
6. See ANDREW WILLIAM LINTOTT, THE CONSTITUTION OF THE ROMAN REPUBLIC 110 (1999).
7. THE FEDERALIST No. 70, at 451 (Alexander Hamilton) (Benjamin Fletcher Wright ed., 1961). Hamilton's point was that Rome did not lose its "republican" character because it used dictatorships in emergencies.
8. Id.
9. Id. Hamilton, who believed in a strong executive, nevertheless refrained from overtly endorsing any sort of "dictatorship" for the United States; this political caution was sound, given that the aim of The Federalist Papers was to gain the votes of wavering Anti-Federalists in New York, who feared concentration of powers (and possibly tyranny) in the new federal government.
10. See DAN T. COENEN, THE STORY OF THE FEDERALIST: HOW HAMILTON AND MADISON RECONCEIVED AMERICA 3-5 (2007). The New York Convention's vote was 30 to 27, "so a switch of two votes might well have doomed the 1787 proposal or, at the least, required a new convention. "
11. PAUL BREST ET AL., PROCESSES OF CONSTITUTIONAL DECISIONMAKING 23 (5th ed. 2006);
12. see also Cecil L. Eubanks, New York: Federalism and the Political Economy of Union, in RATIFYING THE CONSTITUTION 300, 300 (Michael Allen Gillespie & Michael Lienesch eds., 1989) (same).
13. U. S. CONST. art. IV, § 4.
14. See L INTOTT, supra note 4, at 110.
15. Lucius Quinctius Cincinnatus was a famous Roman statesman whom the Senate called from his plow to become dictator and rescue the country from invasion. Sixteen days later, after saving the Republic, he promptly resigned his dictatorship and returned to his plow. See 1 TITUS LIVIUS (LIVY), THE HISTORY OF ROME 170-73 (Ernest Rhys ed., Canon Roberts trans., E. P. Dutton & Co. 1912). Cincinnatus was viewed as an exemplar of republican virtue both for his willingness to abandon his family and property to serve the Republic and for his decision to give up absolute power and return to life as a farmer.
16. See GARRY WILLS, CINCINNATUS: GEORGE WASHINGTON AND THE ENLIGHTENMENT 20 (1984). Because of his decisions to retire from the Continental Army and the presidency and return to his farm at Mount Vernon, George Washington was called the American Cincinnatus.
17. See JOHN SHELTON LAWRENCE & ROBERT JEWETT, THE MYTH OF THE AMERICAN SUPERHERO 130 (2002) (comparing Washington and Cincinnatus);
18. WILLS, supra, at 23.
19. See THE FEDERALIST No. 47 (James Madison), supra note 5, at 336 ("The accumulation of all powers, legislative, executive, and judiciary, in the same hands... may justly be pronounced the very definition of tyranny.").
20. See, e.g., RICHARD HOFSTADTER, THE AMERICAN POLITICAL TRADITION AND THE MEN WHO MADE IT 4 (1948) (describing complaints about democracy by delegates to the Philadelphia Convention, including Edmund Randolph, Elbridge Gerry, Roger Sherman, and William Livingston);
21. GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC 1776-1787, at 165-67 (1972) (noting that concerns about the excesses of democracy in state governments led to calls for a new constitutional convention).
22. The Federalist Papers are full of warnings about the passions of majorities. See, e.g., THE FEDERALIST No. 10 (James Madison), supra note 5, at 130, 134 (denouncing dangers of "faction", defined as "a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community", as well as noting that majority factions are more dangerous than minorities);
23. THE FEDERALIST No. 51 (James Madison), supra note 5, at 358 ("If a majority be united by a common interest, the rights of the minority will be insecure.");
24. THE FEDERALIST No. 63 (James Madison), supra note 5, at 415 ("[T]he people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn. ");
25. THE FEDERALIST No. 71 (Alexander Hamilton), supra note 5, at 459 ("When... the interests of the people are at variance with their inclinations, it is the duty of the persons whom they have appointed to be the guardians of those interests, to withstand the temporary delusion, in order to give them time and opportunity for more cool and sedate reflection. ").
26. See, e.g., DAVID J. BEDERMAN, THE CLASSICAL FOUNDATIONS OF THE AMERICAN CONSTITUTION: PREVAILING WISDOM 1 (2008) ("Classical antiquity molded the legal expectations of the Framers of the American Constitution....");
27. M. N. S. SELLERS, AMERICAN REPUBLICANISM: ROMAN IDEOLOGY IN THE UNITED STATES CONSTITUTION 22 (1994) ("[T]he basic framework of their education and understanding was classical....").
28. See CHRISTOPHER HILL, GOD'S ENGLISHMAN: OLIVER CROMWELL AND THE ENGLISH REVOLUTION 147-72 (1970) (describing the history of Cromwell's dictatorship as Lord Protector).
29. Recently Eric Posner and Adrian Vermeule have cast scorn on what they call "tyrannophobia"-the fear that the expansion of executive power in America will lead to dictatorship. See Eric A. Posner & Adrian Vermeule, Tyrannophobia 1 (Univ. of Chi. Pub. Law, Working Paper No. 276, 2009), available at http://papers.ssrn.com/sol3/papers.cfm?abstract-id=1473858. "[T]he United States", Posner and Vermeule confidently inform us, "has never had a true dictator, or even come close to having one.... By now, 233 years after independence, these risks should be close to zero."
30. Id. As we explain in this article, Posner and Vermeule gloss over many important features of American history. One assumes they would respond that none of the examples we offer constitute "true" dictatorship; but excluding them from one's stipulated definition does not prove that they pose no dangers for either civil liberties or republican government. Even putting definitional quibbles aside, we think the claim that after 233 years America is guaranteed to be "dictator-proof" is entirely too sanguine. It is worth noting that the Roman Republic lasted some 460 years, from the expulsion of the monarchy in approximately 509 B. C.
31. see CLINTON L. ROSSITER, CONSTITUTIONAL DICTATORSHIP: CRISIS GOVERNMENT IN THE MODERN DEMOCRACIES 17 (1948), until Julius Caesar crossed the Rubicon in 49 B. C., leading to civil war and the ultimate dissolution of the Republic.
32. See MATTHIAS GELZER, CAESAR: POLITICIAN AND STATESMAN 336 (Peter Needham trans., 1968). A Roman surveying the scene 233 years after the Roman Kings (some ten years after the Lex Hortensia settled the Conflict of the Orders between plebians and patricians) might also have confidently predicted a zero percent chance of either tyranny or Empire, but would also have been sadly mistaken.
33. For a survey of how emergency powers have spread and become routinized in many different countries, see Kim Lane Scheppele, Exceptions That Prove the Rule: Embedding Emergency Government in Everyday Constitutional Life, in THE LIMITS OF CONSTITUTIONAL DEMOCRACY (Jeffrey K. Tulis & Stephen Macedo eds., forthcoming 2010).
34. See also OREN GROSS & FIONNUALA NÍAOLÁIN, LAW IN TIMES OF CRISIS: EMERGENCY POWERS IN THEORY AND PRACTICE 171-244 (2006) (providing numerous examples).
35. THE FEDERALIST NO. 71 (Alexander Hamilton), supra note 5, at 89.
36. ROSSITER, supra note 14, at 306.
37. See Scheppele, supra note 15.
38. See, e.g., GARRY WILLS, BOMB POWER: THE MODERN PRESIDENCY AND THE NATIONAL SECURITY STATE (2010).
39. Wills builds on arguments going back to Harold D. Lasswell's seminal article, The Garrison State, 46 AM. J. SOC. 455, 455 (1941) (describing states in which "specialists in violence" are the most powerful group in society).
40. Frederick M. Watkins, The Problem of Constitutional Dictatorship, in PUBLIC POLICY 324, 324 (C. J. Friedrich & Edward S. Mason eds., 1940). Because Watkins's long article has almost no footnotes, it is hard to gauge how much he was influenced by similar discussions in Europe, but one suspects that Watkins was well aware given that the year before, in 1939, he published a book on emergency powers in Germany.
41. See FREDERICK MUNDELL WATKINS, THE FAILURE OF CONSTITUTIONAL EMERGENCY POWERS UNDER THE GERMAN REPUBLIC (1939).
42. Watkins, supra note 20, at 324.
43. Id.
44. See IAN KERSHAW, HITLER 1889-1936: HUBRIS 418 (1998).
45. See LEONARD SCHAPIRO, THE COMMUNIST PARTY OF THE SOVIET UNION 410-11 (2d ed. 1971).
46. See WILLIAM MANCHESTER, THE LAST LION: WINSTON SPENCER CHURCHILL: ALONE 1932-1940, at 677-81 (1988).
47. See William A. Robson, Post-War Municipal Elections in Great Britain, 41 AM. POL. SCI. REV. 294, 294 (1947).
48. See Watkins, supra note 20, at 324.
49. See, e.g., ALONZO L. HAMBY, FOR THE SURVIVAL OF DEMOCRACY: FRANKLIN ROOSEVELT AND THE WORLD CRISIS OF THE 1930s (2004).
50. See, e.g., WILLIAM E. SCHEUERMAN, BETWEEN THE NORM AND THE EXCEPTION: THE FRANKFURT SCHOOL AND THE RULE OF LAW 98-99 (1994) (describing the challenge posed by the administrative and welfare state to traditional ways of conceptualizing law).
51. Watkins, supra note 20, at 358 (noting difficulties of administering effective emergency action).
52. Id. at 332.
53. See supra note 9 and accompanying text.
54. See Watkins, supra note 20, at 331.
55. But see NOMI CLAIRE LAZAR, STATES OF EMERGENCY IN LIBERAL DEMOCRACIES 114 (2009) (presenting a more skeptical view of the Roman dictatorship).
56. For an introduction to Schmitt's thought, see, e.g., LAW AS POLITICS: CARL SCHMITT'S CRITIQUE OF LIBERALISM (David Dyzenhaus ed., 1998);
57. DAVID DYZENHAUS, LEGALITY AND LEGITIMACY: CARL SCHMITT, HANS KELSEN AND HERMANN HELLER IN WEIMAR (1997);
58. WILLIAM E. SCHEUERMAN, CARL SCHMITT: THE END OF LAW (1999).
59. See ANDREAS KALYVAS, DEMOCRACY AND THE POLITICS OF THE EXTRAORDINARY: MAX WEBER, CARL SCHMITT, AND HANNAH ARENDT 89 (2008) (discussing Schmitt's distinction).
60. See id. at 90 (noting that sovereign dictatorship is similar to "the classic legislator who operates outside the existing legal system" and signifies a "break that separates it from the previous system of norms"). The "dictator" need not be an individual. Carl Schmitt viewed the Philadelphia Convention of 1787 as an act of sovereign dictatorship because the delegates sought to overthrow the existing regime constituted by the Articles of Confederation and replace it with a new constitutional order.
61. Id. at 96;
62. see also 2 BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS 49 (1998) ("Illegality was a leitmotif at the Convention from first to last.");
63. THE FEDERALIST No. 40 (James Madison), supra note 5, at 291-92 (defending the presumptive illegality of the Convention by reference to the "crisis" and "exigencies" that justified the delegates in going well beyond their mandate).
64. See KALYVAS, supra note 35, at 89.
65. See, e.g., ROSSITER, supra note 14, at 20-23.
66. CARL SCHMITT, POLITICAL THEOLOGY: FOUR CHAPTERS ON THE CONCEPT OF SOVEREIGNTY 5 n. 1 (George Schwab trans., 2006);
67. see also GIORGIO AGAMBEN, STATE OF EXCEPTION (Kevin Attell trans., 2005).
68. See generally ROSSITER, supra note 14.
69. See id. at 11-14.
70. Id. at 3-4.
71. See CARL J. FRIEDRICH, CONSTITUTIONAL GOVERNMENT AND DEMOCRACY: THEORY AND PRACTICE IN EUROPE AND AMERICA 572-96 (1950).
72. See generally C. J. FRIEDRICH, CONSTITUTIONAL REASON OF STATE: THE SURVIVAL OF THE CONSTITUTIONAL ORDER (1957) (discussing development of "constitutional dictatorship").
73. CARL J. FRIEDRICH & ZBIGNIEW K. BRZEZINSKI, TOTALITARIAN DICTATORSHIP AND AUTOCRACY (1956). Key to understanding the title is the implicit premise that there are varieties of dictatorship, including "constitutional" and "totalitarian" versions.
74. See generally CLINTON ROSSITER, THE AMERICAN PRESIDENCY (1956);
75. CLINTON ROSSITER, THE SUPREME COURT AND THE COMMANDER IN CHIEF (1951).
76. See Harvey C. Mansfield, Introduction
77. to NICCOLÒ MACHIAVELLI, THE PRINCE, at vii, vii (Harvey C. Mansfield ed., 2d ed., Univ. of Chi. Press 1998) (1532) (describing Machiavelli's The Prince as "the most famous book on politics ever written").
78. NICCOLÒ MACHIAVELLI, DISCOURSES ON LIVY 95 (Julia Conaway Bondanella & Peter Bondanella trans., Oxford Univ. Press 1997) (1531).
79. See LAZAR, supra note 33, at 120, for a further discussion of the history of the Roman dictatorship, including the role of Julius Caesar in bringing the "constitutional" phase of Roman dictatorship to an end. Particularly important to this history is the reinstitution of the dictatorship after many years of desuetude by Lucius Cornelius Sulla. On Sulla's innovations
80. see ARTHUR KEAVENEY, SULLA: THE LAST REPUBLICAN 162 (1982) (noting that Sulla held the dictatorship without a fixed term limit and enjoyed far broader jurisdiction than previous dictators).
81. MACHIAVELLI, supra note 47, at 95.
82. Id.
83. Id.
84. Id.
85. See Sanford Levinson & Jack M. Balkin, Constitutional Crises, 157 U. PA. L. REV. 707, 729 (2009).
86. Id. at 721.
87. MACHIAVELLI, supra note 47, at 95.
88. Id.
89. Id. at 95-96.
90. See, e.g., BERNARD BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION 28 (1967) (noting the importance of Locke's thought to the Framers).
91. The most famous ascription of Locke's influence on American thought is surely LOUIS HARTZ, THE LIBERAL TRADITION IN AMERICA (1955).
92. See JOHN LOCKE, TWO TREATISES OF GOVERNMENT 204 (Thomas I. Cook ed., 1947) (1690). This power to act according to discretion for the public good, without the prescription of the law and sometimes even against it, is that which is called "prerogative" for since in some governments the lawmaking power is not always in being, and is usually too numerous, and so too slow for the dispatch requisite to execution, and because also it is impossible to foresee, and so by laws to provide for all accidents and necessities that may concern the public, or to make such laws as will do no harm if they are executed with an inflexible rigour on all occasions and upon all persons that may come in their way, therefore there is a latitude left to the executive power to do many things of choice which the laws do not prescribe.
93. Id.
94. see also CLEMENT FATOVIC, OUTSIDE THE LAW: EMERGENCY AND EXECUTIVE POWER 37-82 (2009) (surveying various theories of "prerogative" powers in British and American political thought).
95. See LOCKE, supra note 58, at 222-28.
96. See MACHIAVELLI, supra note 47, at 94-95.
97. See, e.g., LIVIUS, supra note 9, at 170-73. That is, until Sulla's ascension in 82 B. C., which gave the dictator the ability to serve as long as he believed the crisis was ongoing.
98. See KEAVENEY, supra note 47, at 162. Sulla, a conservative, resigned the dictatorship within a year's time, consistent with republican ideals.
99. Id. at 162-64. Julius Caesar is said to have mocked Sulla's decision to willingly give up power.
100. See C. SUETONIUS TRANQUILLUS, THE LIVES OF THE TWELVE CAESARS 57 (Maurice Filler ed., Alexander Thomson trans., Corner House Publishers 1978) (1882).
101. See THE DECLARATION OF INDEPENDENCE para. 2 (U. S. 1776)
102. reprinted in THE ANNOTATED U. S. CONSTITUTION AND DECLARATION OF INDEPENDENCE 79 (Jack N. Rakove ed., 2009).
103. Treaty of Paris, U. S.-Gr. Brit., Sept. 3, 1783, 8 Stat. 80.
104. ARTICLES OF CONFEDERATION OF 1781, available at http://avalon. law.yale.edu/18th-century/artconf.asp.
105. See BREST ET AL., supra note 6, at 19-22.
106. U. S. CONST. art. VII.
107. THE FEDERALIST NO. 40 (James Madison), supra note 5, at 292.
108. Id.
109. THE FEDERALIST NO. 41 (James Madison), supra note 5, at 295.
110. Id. (emphasis added). We can better understand Madison's dismissal of a Bill of Rights as mere "parchment barriers" in this light.
111. See THE FEDERALIST NO. 48 (James Madison), supra note 5, at 343. Walter F. Murphy argues that Madison and Hamilton "strongly disagreed with Machiavelli" about the possibility of spelling out procedures to follow in times of emergencies.
112. WALTER F. MURPHY, CONSTITUTIONAL DEMOCRACY: CREATING AND MAINTAINING A JUST POLITICAL ORDER 308 (2007). Thus, in addition to Madison's remarks in The Federalist No. 41, Murphy adds Hamilton's statement from The Federalist No. 23 that the national powers "ought to exist without limitation, because it is impossible to foresee or define the extent and variety of the means which may be necessary to satisfy them."
113. Id. Murphy may be exaggerating the differences between these authors in order to make a point about the importance of discretion in constitutional government. Machiavelli wanted emergency power to be exercised within constitutional structures.
114. See MACHIAVELLI, supra note 47, at 95. So did Madison and Hamilton. Madison's and Hamilton's statements in The Federalist Papers cannot mean that they were opposed to channeling power through wise institutional design, even in emergencies; otherwise it would be hard to explain the basic argument of The Federalist Papers, which calls for checking and balancing political power in order to prevent factions and the passions of majorities from destroying republican government.
115. See THE FEDERALIST No. 51 (James Madison), supra note 5, at 355. The fact that emergencies cannot be foreseen and that people will act out of self-preservation does not mean that any constitutional design is as good as any other or avoids the dangers of demagoguery or tyranny equally well.
116. See MACHIAVELLI, supra note 47, at 94-95.
117. See LOCKE, supra note 58, at 204.
118. Id. at 207 ("[T]he people have no other remedy in this, as in all other cases where they have no judge on earth, but to appeal to heaven; for the rulers, in such attempts, exercising a power the people never put into their hands-who can never be supposed to consent that anybody should rule over them for their harm-do that which they have not a right to do.").
119. See KALYVAS, supra note 35, at 90-92, 97.
120. See Watkins, supra note 20, at 324.
121. See Ex parte Merryman, 17 F. Cas. 144, 148 (C. C. Md. 1861) (No. 9487) (arguing that the President may detain without charges or a hearing only if Congress has suspended the writ).
122. THE FEDERALIST NO. 47 (James Madison), supra note 5, at 336.
123. Id.
124. See id.
125. See id.
126. The Roman dictatorships were generally limited dictatorships. They lasted six months and usually bore descriptive names that described their substantive purpose-such as rei gerundae causa ("for getting things done", a dictatorship for governing the state in an emergency), seditionis sedandae causa (for suppressing sedition or rebellion), or comitiorum habendorum causa (for summoning the assembly (comitia) for elections). See FRANK FROST ABBOTT, A HISTORY AND DESCRIPTION OF ROMAN POLITICAL INSTITUTIONS 183 (3d ed. 1963);
127. ROSSITER, supra note 14, at 21-22. Sulla's dictatorship was styled legibus faciendis et reipublicae constituendae causa (for the making of laws and settling of the constitution); unlike the rei gerundae causa, it had no time limit, although Sulla gave up power within a year.
128. KEAVENEY, supra note 47, at 161-62, 164. Julius Caesar effectively destroyed the legal practices and customs of the dictatorship; he was named dictator repeatedly, originally styled as rei gerundae causa.
129. See LUCIANO CANFORA, JULIUS CAESAR: THE LIFE AND TIMES OF THE PEOPLE'S DICTATOR 289-90 (Marian Hill & Kevin Windle trans., 2007). In 46 B. C. Caesar was named dictator for ten years; his last dictatorship in 44 B. C., ominously, was styled perpetuus (perpetual).
130. MATTHIAS GELZER, CAESAR: POLITICIAN AND STATESMAN 320, 337 (Peter Needham trans., 5th ed. 1968).
131. ROSSITER, supra note 14, at 4-5.
132. See id. at 8-11.
133. For an example of this distinction, see the Foreign Intelligence Service Act (FISA), 50 U. S. C. A. § 1805 (a) (2) (A) (West Supp. 2009). The difficulty, of course, arises when, as in the digital world, the distinction between foreign and domestic surveillance threatens to evaporate.
134. Turmoil in U. S. Credit Markets: Examining the Recent Actions of Federal Financing Regulators: Hearing of the S. Comm. on Banking, Hous. & Urban Affairs, 110th Cong. 1 (2008) (statement of Sen. Christopher Dodd, Chairman, S. Comm. on Banking, Hous. & Urban Affairs).
135. See 42 U. S. C. § 264 (2006) (outlining the powers of the Secretary of Health and Human Services to prevent the introduction, transmission, and spread of communicable diseases into the United States);
136. Questions and Answers on the Executive Order Adding Potentially Pandemic Influenza Viruses to the List of Quarantinable Diseases, http://www.cdc.gov/ quarantine/qa-executive-order-pandemic-list-quarantinable-diseases.html (last visited May 6, 2010).
137. See ROSSITER, supra note 14, at 10.
138. See, e.g., ROBERT CONQUEST, THE HARVEST OF SORROW: SOVIET COLLECTIVIZATION AND THE TERROR-FAMINE 146-47, 322 (1986) (setting out the history of Stalin's brutality in collectivizing agriculture during the 1930s).
139. The most famous English-language work making this argument is surely A. V. DICEY, INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION 10-12, 21-22 (9th ed. 1950).
140. See RICHARD A. COSGROVE, THE RULE OF LAW: ALBERT VENN DICEY, VICTORIAN JURIST 66 (1980).
141. See EDWARD L. RUBIN, BEYOND CAMELOT: RETHINKING POLITICS AND LAW FOR THE MODERN STATE 10-11 (2005) for an unusually wide-ranging call for rethinking many of our basic presuppositions in light of the reality of the modern administrative state.
142. See also Adrian Vermeule, Our Schmittian Administrative Law, 122 HARV. L. REV. 1095, 1097, 1131-42 (2009) (noting the "grey holes" in federal administrative law).
143. See Stephen Holmes, In Case of Emergency: Misunderstanding Tradeoffs in the War on Terror, 97 CAL. L. REV. 301, 302-07 (2009) (arguing that the prospect of foreseeable emergencies requires the preparation of rule-bound "protocols" designed to minimize the foreseeable prospect of panic and other irrationalities attached to the perception of crisis and emergency).
144. See ROSSITER, supra note 14, at 10.
145. See id.
146. Put in contemporary terms, the successful dictator co-opts "the realitybased community" by generating new versions of "reality" that, not at all coincidentally, assume the need for continued leadership by the executive. This strategy is vividly depicted in the now-classic article by Ron Suskind, published three weeks before the 2004 presidential election. Ron Suskind, Without a Doubt, N. Y. TIMES, Oct. 17, 2004, (Magazine), at 44. Suskind quotes a senior (unnamed) aide of Bush explaining that: [G]uys like me [Suskind] were "in what we call the reality-based community", which he defined as people who "believe that solutions emerge from your judicious study of discernible reality." I nodded and murmured something about enlightenment principles and empiricism. He cut me off. "That's not the way the world really works anymore", he continued. "We're an empire now, and when we act, we create our own reality. And while you're studying that reality-judiciously, as you will-we'll act again, creating other new realities, which you can study too, and that's how things will sort out. We're history's actors... and you, all of you, will be left to just study what we do."
147. Id. at 51.
148. M'Culloch v. Maryland, 17 U. S. (4 Wheat.) 316, 415 (1819).
149. U. S. CONST. art. I, § 9, cl. 2.
150. See, for example, the excellent chapters on Germany in LIAQUAT AHAMED, LORDS OF FINANCE: THE BANKERS WHO BROKE THE WORLD 324-45 (2009).
151. Article 48 provided that: If public safety and order in the German Commonwealth is materially disturbed or endangered, the National President may take the necessary measures to restore public safety and order, and, if necessary, to intervene by force of arms. To this end he may temporarily suspend, in whole or in part, the fundamental rights established in Articles 114, 115, 117, 118, 123, 124 and 153 [of the Constitution]. RENÉ BRUNET, THE NEW GERMAN CONSTITUTION 308 (Joseph Gollomb trans., 1922).
152. AGAMBEN, supra note 39, at 15.
153. See, e.g., RICHARD J. EVANS, THE COMING OF THE THIRD REICH 255-77 (2004).
154. Thomas Black, Mexico's Calderon Declares Emergency Amid Swine Flu Outbreak, BLOOMBERG, Apr. 25, 2009, http://www.bloomberg.com/apps/news?pid= 20670001&sid=aEsNownABJ6Q.
155. See John M. Ackerman, An Outbreak of Opportunism: Mexico's President Is Trying to Use the Swine Flu to Consolidate His Power, SLATE, Apr. 27, 2009, http://www.slate.com/id/2217017/.
156. Id. It is worth noting that Ackerman's objection may be directed less to the suspension of ordinary civil liberties than to Calderon's failure to seek judicial authorization.
157. KEITH E. WHITTINGTON, CONSTITUTIONAL CONSTRUCTION: DIVIDED POWERS AND CONSTITUTIONAL MEANING 1-15 (1999);
158. Jack M. Balkin, Framework Originalism and the Living Constitution, 103 NW. U. L. REV. 549, 566-69 (2009);
159. William N. Eskridge, Jr. & John Ferejohn, Super-Statutes, 50 DUKE L. J. 1215, 1215-18, 1220-30 (2001); (Pubitemid 33651482)
160. Ernest A. Young, The Constitution Outside the Constitution, 117 YALE L. J. 408, 449-61 (2007).
161. U. S. CONST. art. II, § 1, cl. 1.
162. Id. art. II, § 2, cl. 1.
163. Id. art. II, § 3.
164. THEODORE J. LOWI, THE END OF LIBERALISM: THE SECOND REPUBLIC OF THE UNITED STATES, at xiv (40th anniversary ed. 2009) (1979). These features are not unique to the United States.
165. See Mark Aronson, The Great Depression, This Depression, and Administrative Law, 37 FED. L. REV. 165, 201-03 (2009) (discussing similar developments in other countries, particularly in the United Kingdom, Canada, and Australia).
166. The first three republics were structured, respectively, by the Articles of Confederation, the 1787 Constitution, and the Reconstruction Amendments added as the result of the breakdown of the Second Republic. LOWI, supra note 108, at xii-xiv.
167. Id. at xvi-xvii.
168. See, e.g., Larry M. Bartels, Econometrics and Presidential Elections 1, 7 (Feb. 1997), http://www.princeton.edu/~bartels/econpres.pdf
169. (published in abbreviated form in 11 J. ECON. PERSP. 195 (1997)).
170. U. S. CONST. art. II, § 4.
171. See SANFORD LEVINSON, OUR UNDEMOCRATIC CONSTITUTION 114-21 (2006) (discussing and criticizing the Impeachment Clause). Indeed, in light of the Clinton impeachment, mere illegality may no longer be enough; some scholars argue that the Impeachment Clause is unavailing against anything other than truly "High Crimes and Misdemeanors", or, at the very least, in the words of then-University of Chicago Professor Cass Sunstein, "egregious misconduct that amounts to the abusive misuse of the authority of his office."
172. See Hearing on Impeachment Inquiry Pursuant to H. Res. 581 Before the H. Comm. on the Judiciary, 105th Cong. 89 (1998)
173. reprinted in Testimony Before the U. S. House Judiciary Committee, 32 PS: POL. SCI. & POL. 24, 25 (1999), available at http://www.apsanet.org/ imgtest/TestimonyUSHouse Judiciary-Sunstein.pdf.
174. It is telling that even George W. Bush's most fervent opponents-including some who believed that Bush may have committed criminal offenses-counseled against the Democrats pursuing his impeachment upon their recapture of Congress in the 2006 elections. See, e.g., Sanford Levinson, Impeachment: The Case Against, THE NATION, Feb. 12, 2007, at 21-22, available at http://www.thenation. com/doc/20070212/levinson (debating former Rep. Elizabeth Holtzman, who supported impeachment). The Democratic leadership agreed; House Minority Leader (and later Speaker) Nancy Pelosi declared that even if the Democrats regained control of the House, the impeachment of President Bush would be "off the table."
175. See Charles Babington, Democrats Won't Try to Impeach President, WASH. POST, May 12, 2006, http://www.washingtonpost.com/wp-dyn/content/article/2006/ 05/11/AR2006051101950.html.
176. See, e.g., ROSSITER, supra note 14, at 223-39.
177. Id. at 224.
178. See, e.g., MAURY KLEIN, DAYS OF DEFIANCE: SUMTER, SECESSION, AND THE COMING OF THE CIVIL WAR 336-37, 405 (1997).
179. See Thomas H. Lee & Michael D. Ramsey, The Story of the Prize Cases: Executive Action and Judicial Review in Wartime, in PRESIDENTIAL POWER STORIES 53-54 (Christopher H. Schroeder & Curtis A. Bradley eds., 2009).
180. The blockade was upheld, by a 5 to 4 vote, in The Brig Amy Warwick (The Prize Cases), 67 U. S. (2 Black) 635, 664-65 (1862).
181. See, e.g., BREST ET AL., supra note 6, at 278-79.
182. See, e.g., Chief Justice Taney's opinion in Ex parte Merryman, 17 F. Cas. 144, 147 (C. C. D. Md. 1861) (No. 9487).
183. Abraham Lincoln, Message to Congress in Special Session (July 4, 1861)
184. reprinted in BREST ET AL., supra note 6, at 278.
185. Id. at 159-60.
186. Arthur M. Schlesinger, Jr., War and the Constitution: Abraham Lincoln and Franklin D. Roosevelt, in LINCOLN THE WAR PRESIDENT: THE GETTYSBURG LECTURES 159-60 (Gabor S. Boritt ed., 1992). Watkins writes almost casually that "[t]he dictatorship of President Lincoln is an interesting case in point."
187. Watkins, supra note 20, at 366. Rossiter, by contrast, writes extensively of the dictatorial aspects of the Lincoln presidency and he describes Lincoln as the most obvious example of a "constitutional dictator."
188. See ROSSITER, supra note 14, at 224-26.
189. Whether or not Lincoln's admirers acknowledged that he was a dictator, Lincoln's staunchest opponents were quite sure he was a tyrant. John Wilkes Booth, of course, cried out "sic semper tyrannis" (thus always to tyrants) as he shot our sixteenth President. See MICHAEL W. KAUFFMAN, AMERICAN BRUTUS: JOHN WILKES BOOTH AND THE LINCOLN CONSPIRACIES 7 (2004). Kauffman's title demonstrates how important Roman analogies were to American political thought, for Booth surely viewed Lincoln as the American Caesar, who deserved the same fate as befell Julius Caesar.
190. Cf. Josh Chafetz, Impeachment and Assassination, 95 MINN. L. REV. (forthcoming 2010), available at http://papers.ssrn.com/sol3/papers.cfm? abstract-id=1568950 (arguing that the Framers recognized the danger that the emergence of tyrants posed to republics and adapted the impeachment process in part as an alternative to the traditional remedy of assassination).
191. Dan Froomkin, Bush's Alternate Reality, WASH. POST, Mar. 21, 2008, http://www.washingtonpost.com/wp-dyn/content/blog/2008/03/21/BL200803210 1852.html.
192. See supra note 1 and accompanying text.
193. Interview by Chris Wallace with Richard Cheney, Vice President of the United States, in Wash., D. C. (Dec. 22, 2008), available at http://www.fox news.com/story/0, 2933, 470706, 00.html (emphasis added).
194. See JOHN C. WAUGH, REELECTING LINCOLN: THE BATTLE FOR THE 1864 PRESIDENCY 22, 202 (1997).
195. A poignant example of this is Al Gore's concession in the 2000 presidential election. See Gore Concedes Presidential Election, CNN.cOM, Dec. 13, 2000, http://archives.cnn.com/2000/ALLPOLITICS/stories/12/13/gore.ends. campaign/index.html.
196. See ROSSITER, supra note 14, at 219-21.
197. See LOUIS FISHER, PRESIDENTIAL WAR POWER 154-58 (2d ed. 2004) (describing the military operations initiated by the Ford Administration).
198. See STEVEN T. ROSS, AMERICAN WAR PLANS 1945-1950, at 74-75 (1996);
199. Gordon R. Mitchell & Robert P. Newman, By 'Any Means' Necessary: NSC-68 and Cold War Roots of the 2002 National Security Strategy 3-8 (Matthew B. Ridgeway Ctr. for Int'l Studies at the Univ. of Pittsburgh, Working Paper No. 2006-5, 2006), available at http://www.ridgway.pitt.edu/LinkClick.aspx? fileticket=1rpufk4qCIs%3d&tabid=232.
200. Eisenhower's advisors, who believed that the Soviets would soon develop a hydrogen bomb, advocated a preemptive strike against the Soviet Union while the United States still enjoyed a preponderance of atomic power, even if a few million Americans might be killed in the process. See Katie Bacon, Proceed With Caution, ATLANTIC. COM, Oct. 10, 2002, http://www.theatlantic.com/doc/200210u/ int2002-10-10 (interview with James Fallows describing General Curtis LeMay's advocacy of preemptive nuclear strikes against the Soviet Union during the 1950s). Eisenhower, who disapproved of "preventative war", rejected their advice.
201. See John S. D. Eisenhower, Ike's Son Wonders What Ike Would Do Today, HISTORY NEWS NETWORK, June 6, 2004, http://hnn. us/roundup/entries/5695.html. LeMay also served as Air Force Chief of Staff during the Kennedy Administration, and lost none of his aggressiveness where nuclear war was concerned.
202. See MICHAEL DOBBS, ONE MINUTE TO MIDNIGHT: KENNEDY, KHRUSCHEV, AND CASTRO ON THE BRINK OF NUCLEAR WAR 266-67 (2008);
203. EVAN THOMAS, ROBERT KENNEDY: HIS LIFE 206 (2000).
204. GEOFFREY PERRET, COMMANDER IN CHIEF: HOW TRUMAN, JOHNSON, AND BUSH TURNED A PRESIDENTIAL POWER INTO A THREAT TO AMERICA'S FUTURE 203-04 (2007) (explaining Johnson's decision to escalate the Vietnam War).
205. See id. at 143-47 (describing Truman's decision to intervene in Korea without a congressional declaration of war).
206. Pub. L. No. 107-40, 115 Stat. 224 (2001).
207. Pub. L. No. 107-56, 115 Stat. 272 (2001).
208. Pub. L. No. 109-366, 120 Stat. 2600 (2006).
209. Pub. L. No. 110-55, 121 Stat. 552 (2007).
210. Pub. L. No. 110-261, 122 Stat. 2468 (2008).
211. One might object that Congress did not give Bush everything that he asked for. See, e.g., Tom Daschle, Power We Didn't Grant, WASH. POST, Dec. 23, 2005, at A21 (recounting the debate over the language of the AUMF). But members of Congress, including Senator Daschle, did little to resist the expansion of presidential discretion in what the Administration called its "global war on terror."
212. See CHARLIE SAVAGE, TAKEOVER: THE RETURN OF THE IMPERIAL PRESIDENCY AND THE SUBVERSION OF AMERICAN DEMOCRACY 121-22 (2007).
213. The most dramatic assertion of such powers can be found in the notorious "torture memo" written by John Yoo and signed by Jay Bybee, then head of the Office of Legal Counsel in the Department of Justice and now a judge on the Ninth Circuit Court of Appeals. Memorandum from Jay Bybee, Assistant Attorney General, Office of Legal Counsel, to Alberto R. Gonzales, Counsel to the President, Re: Standards of Conduct for Interrogation under 18 U. S. C. §§ 2340-2340A (Aug. 1, 2002) [hereinafter Bybee Memorandum], available at http://www.washingtonpost.com/wp-srv/nation/documents/dojinterrogationmemo 20020801.pdf.
214. For the discussion of the "Commander-in-Chief" powers within the memorandum, see id. at 31-39. Moreover, President Bush greatly expanded the practice of issuing "signing statements" that rejected Congress's ability to control the President's authority as determined by the President himself.
215. See, e.g., SAVAGE, supra note 140, at 228-49.
216. See, e.g., David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb-Framing the Problem, Doctrine, and Original Understanding, 121 HARV. L. REV. 689, 741-48 (2008)
217. [hereinafter Barron & Lederman, Framing the Problem] (examining arguments in favor of expansive presidential wartime powers).
218. See generally David J. Barron & Martin S. Lederman, Commander in Chief at the Lowest Ebb-A Constitutional History, 121 HARV. L. REV. 941 (2008)
219. [hereinafter Barron & Lederman, Constitutional History] (providing an analysis of presidential wartime powers from the ratification of the Constitution through the George W. Bush Administration).
220. A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495, 553 (1935) (Cardozo, J., concurring);
221. see also Panama Ref. Co. v. Ryan, 293 U. S. 388, 414-15 (1935) (concluding that a presidential order restricting interstate and international trade in "hot oil" constituted an excessive delegation without standards to the executive branch).
222. See, e.g., Yakus v. United States, 321 U. S. 414, 424-27 (1944).
223. See Whitman v. Am. Trucking Ass'ns, Inc., 531 U. S. 457, 472-76 (2001) (Justice Scalia authored the majority opinion).
224. See G. Edward White, The Transformation of the Constitutional Regime of Foreign Relations, 85 VA. L. REV. 1, 42-44 (1999).
225. United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 319 (1936);
226. see also White, supra note 146, at 46-49 (discussing Sutherland's prejudicial writings on foreign affairs power).
227. See ROSSITER, supra note 14, at 223-87.
228. See, e.g., MARTIN J. SHERWIN, A WORLD DESTROYED: HIROSHIMA AND THE ORIGINS OF THE ARMS RACE 231-32 (Vintage Books 1987).
229. See, e.g., PERRET, supra note 133, at 133-48 (describing Truman's decision to send American troops to Korea).
230. This point was made by at least two justices who joined in the Supreme Court's decision in Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure), 343 U. S. 579 (1952). Youngstown invalidated Truman's seizure of the nation's steel mills; Truman justified the seizure as a way to provide essential war materiel to the troops fighting (and dying) in Korea. Justice Frankfurter noted that no firmly established "practice can be vouched for executive seizure of property at a time when this country was not at war, in the only constitutional way in which it can be at war."
231. Id. at 611 (Frankfurter, J., concurring) (emphasis added). He declared that "[i]t would pursue the irrelevant to reopen the controversy over the constitutionality of some acts of Lincoln during the Civil War", which Frankfurter apparently did consider a constitutionally legitimated war.
232. Id. Similarly, Justice Jackson emphasized that: Nothing in our Constitution is plainer than that declaration of a war is entrusted only to Congress.... [N]o doctrine that the Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation's armed forces to some foreign venture.
233. Id. at 642 (Jackson, J., concurring).
234. See, e.g., FISHER, supra note 130, at 81-104 (detailing the constitutional arguments concerning President Truman's conduct of the Korean War).
235. See, e.g., TIM WEINER, LEGACY OF ASHES: THE HISTORY OF THE CIA 26-29 (2007).
236. 345 U. S. 1, 6-7 (1953).
237. LOUIS FISHER, In the Name of National Security: Unchecked Presidential Power and the Reynolds Case 17 (2006).
238. See Jake Tapper, Political Punch: Obama Administration Invokes State Secrets Privilege... Again, ABCNEWS. COM, Oct. 30, 2009, http://blogs.abcnews. com/politicalpunch/2009/10/obama-administration-invokes-state-secrets- privilegeagain.html.
239. See FISHER, supra note 155, at 245-52.
240. See id.
241. See id.
242. See, e.g., Roger Dingman, Atomic Diplomacy During the Korean War, 13 INT'L SECURITY 50, 50 (1988-89). Although the head of the Joint Chiefs of Staff, Admiral Arthur Radford, advised Eisenhower to use nuclear weapons to relieve the siege against the French at Dien Bien Phu in Vietnam, Eisenhower resisted such advice, perhaps because of his own experience in the military during World War II.
243. See Lawrence J. Korb, The U. S. Air Force's Indifference Toward Nuclear Weapons, BULL. OF THE ATOMIC SCIENTISTS, June 17, 2008, http://www.thebulletin. org/web-edition/op-eds/the-us-air-forces-indifference-toward-nuclear-weapons.
244. See, e.g., WEINER, supra note 153, at 92-105 (offering details of what the CIA apparently regarded as its "greatest triumph").
245. See, e.g., id. at 197-206.
246. See Tim Weiner, Robert McNamara, Architect of a Futile War, Dies, N. Y. TIMES, July 6, 2009, at A20.
247. See generally DOBBS, supra note 132 (chronicling the events of the Cuban Missile Crisis).
248. See, e.g., THEODORE C. SORENSON, KENNEDY 716-18 (1965).
249. See, e.g., ROBERT F. KENNEDY, THIRTEEN DAYS: A MEMOIR OF THE CUBAN MISSILE CRISIS (1969).
250. See John F. Kennedy Presidential Library & Museum, The World on the Brink: John F. Kennedy and the Cuban Missile Crisis, http://www.jfklibrary.org/ jfkl/cmc/cmc-intro.html (last visited May 6, 2010).
251. E.g., SORENSON, supra note 165, at 694 ("It was the most difficult and dangerous decision any President could make, and only he could make it.").
252. As Secretary of Defense Robert McNamara later recalled, President Kennedy decided "that only a limited number of senior officials would be informed of the missile deployment in Cuba", and that only a select group of fifteen officials, "the so-called Executive Committee of the National Security Council, or 'ExComm, '... would advise him throughout the crisis." Robert S. McNamara, Forty Years After 13 Days, ARMS CONTROL TODAY, NOV. 2002, http://www.armscontrol.org/act/2002-11/cubanmissile. In addition, "[t]he Ex-Comm would be required to radically restrict any information given to their associates, in order to help ensure that neither the press, Congress, nor the general public learned of the situation until the President was prepared to respond to it."
253. Id.
254. SORENSON, supra note 165, at 705.
255. See ABRAM CHAYES, THE CUBAN MISSILE CRISIS 1-24 (1974);
256. Sanford V. Levinson, Fidelity to Law and the Assessment of Political Activity (Or, Can a War Criminal Be a Great Man?), 27 STAN. L. REV. 1185, 1191-99 (1975)
257. (reviewing CHAYES, supra).
258. See Thomas S. Blanton & James G. Blight, A Conversation in Havana, ARMS CONTROL TODAY, Nov. 2002, http://www.armscontrol.org/act/2002-11/ cubanmissile (quoting McNamara during a 1992 conference as asserting, "[i]t was absurd to believe that the missiles in Cuba affected the global nuclear balance").
259. Id.
260. See, e.g., CAMPBELL CRAIG & FREDRIK LOGEVALL, AMERICA'S COLD WAR: THE POLITICS OF INSECURITY 360-70 (2009) (pointing out the interconnection of domestic and international politics).
261. See James Reston, On Cuba and Pearl Harbor-the American Nightmare, N. Y. TIMES, Oct. 11, 1962, at A1.
262. See ARTHUR M. SCHLESINGER, JR., A THOUSAND DAYS: THE PRESIDENCY OF JOHN F. KENNEDY (1965).
263. See CRAIG & LOGEVALL, supra note 174, at 204-05. Kennedy had received only 49.7% of the popular vote in the 1960 election.
264. See United States of America Presidential Election of 1960: Popular Vote and Electoral College Vote by State, http://psephos.adam-carr.net/countries/u/ usa/pres/1960.txt (last visited May 6, 2010).
265. See SORENSON, supra note 165, at 694.
266. See CRAIG & LOGEVALL, supra note 174, at 204.
267. See DOBBS, supra note 132, at 350-53.
268. See id. at 348-49. Just as most Americans probably recoil at the description of our presidents as even limited "dictators", they are likely to overlook the fact that foreign dictators are always part of wider institutional networks that can pose threats to their continuation in power-and, of course, often their lives.
269. See FISHER, supra note 130, at 127.
270. See, e.g., Barron & Lederman, Constitutional History, supra note 142, at 1067-68 (describing then Assistant Attorney General William Rehnquist's defense of President Nixon's authority as commander-in-chief to invade Cambodia).
271. See Bybee Memorandum, supra note 141, at 37 (quoting the first sentence of Article II and then stating: "[t]hat sweeping grant vests in the President an unenumerated 'executive power' and contrasts with the specific enumeration of the powers-those 'herein' granted to Congress by Article I").
272. See, e.g., John H. Richardson, "Torture Memo" Author John Yoo Responds to this Week's Revelations, ESQUIRE, Apr. 3, 2008, http://www.esquire. com/the-side/qa/john-yoo-responds.
273. See JOHN YOO, THE POWERS OF WAR AND PEACE: THE CONSTITUTION AND FOREIGN AFFAIRS AFTER 9/11, at 32-33 (2005) (explaining the allocation of powers between King and Parliament).
274. Id.
275. See Jack M. Balkin, Reductio Ad Dictatorem, BALKINIZATION, Apr. 7, 2006, http://balkin. blogspot.com/2006/04/reductio-ad-dictatorem.html.
276. See, e.g., JACK GOLDSMITH, THE TERROR PRESIDENCY: LAW AND JUDGMENT INSIDE THE BUSH ADMINISTRATION 141-76 (2008);
277. David Cole, What Bush Wants to Hear, N. Y. REV. OF BOOKS, Nov. 17, 2005, at 8, 8-12
278. (reviewing YOO, supra note 186);
279. David Luban, The Defense of Torture, N. Y. REV. OF BOOKS, Mar. 15, 2007, at 37, 37-40
280. (reviewing JOHN YOO, WAR BY OTHER MEANS: AN INSIDER'S ACCOUNT OF THE WAR ON TERROR (2007)).
281. Moreover, as Rossiter's book suggests, long before the Bush Administration, government lawyers had justified ever-stronger conceptions of presidential power while other scholars had denounced these dangerous tendencies. See ROSSITER, supra note 14, at 306-14. Consider, as an example, political scientist David Gray Adler's analysis of the Clinton Administration's claims about presidential authority in the realm of foreign affairs: "[a]s things stand today... power has replaced law, usurpation has replaced amendment, and executive fiat has replaced constitutionalism."
282. David Gray Adler, Clinton, the Constitution, and the War Power, in THE PRESIDENCY AND THE LAW: THE CLINTON LEGACY 46 (David Gray Adler & Michael A. Genovese eds., 2002).
283. Jack M. Balkin & Sanford Levinson, The Processes of Constitutional Change: From Partisan Entrenchment to the National Surveillance State, 75 FORDHAM L. REV. 489, 529-33 (2006).
284. See ROSSITER, supra note 14, at 4-5.
285. See id.
286. Our friend and colleague Bruce Ackerman has recently argued, in his Tanner Lectures delivered at Princeton in April 2010, that a major development over the last several decades is the increased importance of the Office of Legal Counsel as the de facto non-Article III court of last resort within the executive branch, as well as the exponential growth of the office of the White House Counsel, which increasingly feels empowered to weigh in on the merits of legal disputes about presidential power (and, not surprisingly, finds that the President in fact possesses vast powers). BRUCE ACKERMAN, THE DECLINE AND FALL OF THE AMERICAN REPUBLIC (forthcoming 2010) (manuscript at 130, on file with authors).
287. See ROSSITER, supra note 14, at 288-90.
288. See Barron & Lederman, Constitutional History, supra note 142, at 1090-91 n. 619.
289. John C. Yoo, The Imperial President Abroad, in THE RULE OF LAW IN THE WAKE OF CLINTON 159 (Roger Pilon ed., 2000) (arguing that "the record of the administration has not been a happy one, in light of its costs to the Constitution and the American legal system", and pointing out that "[o]n a series of different international relations matters, such as war, international institutions, and treaties, President Clinton has accelerated disturbing trends in foreign policy that undermine notions of democratic accountability and respect for the rule of law").
290. See, e.g., President Barack Obama, Remarks by the President in Address to the Nation on the Way Forward in Afghanistan and Pakistan (Dec. 1, 2009), available at http://www.whitehouse.gov/the-press-office/remarks-president- address-nation-way-forward-afghanistan-and-pakistan.
291. Id. ("Just days after 9/11, Congress authorized the use of force against al Qaeda and those who harbored them-an authorization that continues to this day.").
292. Cf. Dahlia Lithwick, What War Powers Does the President Have?, SLATE, Sept. 13, 2001, http://www.slate.com/id/1008290 (stating that the War Powers Act "looks good on paper, but presidents have generally ignored [it], citing Article II, Section 2 as their authority to send soldiers into combat").
293. See, e.g., JOHN HART ELY, WAR AND RESPONSIBILITY: CONSTITUTIONAL LESSONS OF VIETNAM AND ITS AFTERMATH 48-49 (1993).
294. We should not, however, underestimate the ability of a dedicated President to influence decisionmaking by administrative agencies and, therefore, to procure policy victories that Congress might have denied him. See Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2246 (2001).
295. RICHARD E. NEUSTADT, PRESIDENTIAL POWER: THE POLITICS OF LEADERSHIP FROM FDR TO CARTER 9 (1960).
296. See id.
297. Id.
298. PERRET, supra note 133, at 138.
299. NEUSTADT, supra note 203, at 10.
300. See id.
301. Cf. LEVINSON, supra note 113, at 40 ("More than 95 percent of all presidential vetoes are successful....").
302. See id. at 9.
303. See JEFFREY CROUCH, THE PRESIDENTIAL PARDON POWER 29 (2009).
304. See generally U. S. CONST. art. II, § 2, cl. 1 (stating that the President "shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment").
305. See, e.g., The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to Their Constituents, PA. PACKET AND DAILY ADVERTISER, Dec. 18, 1787, available at http://www.constitution.org/afp/penn- min. txt (warning that the President, "having the power of pardoning without the concurrence of a council,... may skreen [sic] from punishment the most treasonable attempts that may be made on the liberties of the people, when instigated by his coadjutors in the senate").
306. See Dian McDonald, Bush Pardons Weinberger, Five Others Tied to Iran-Contra, FED'N AM. SCIENTISTS, Dec. 24, 1992, available at http://www.fas.org/news/iran/1992/921224-260039.htm.
307. More recently, people criticized George W. Bush's commutation of Scooter Libby's sentence. Jim Rutenberg & Jo Becker, Aides Say No Pardon for Libby Irked Cheney, N. Y. TIMES, Feb. 17, 2009, at A14, but this episode seems to pale by comparison. Moreover, Bush refused to grant Libby a full pardon at the end of his presidency.
308. Id.
309. See Peter Baker, Obama Making Plans to Use Executive Power, N. Y. TIMES, Feb. 12, 2010, at A13.
310. See Susan W. Brenner & Marc D. Goodman, In Defense of Cyberterrorism: An Argument for Anticipating Cyber-Attacks, 2002 U. ILL. J. L. TECH. & POL'Y 1, 7-12.
311. See Kathleen Frankovic, Bush's Popularity Reaches Historic Lows, CBSNEWS. COM, Jan. 15, 2009, http://www.cbsnews.com/stories/2009/01/15/opinion/ pollpositions/main4724068.shtml.
312. Calling Forth Act of 1792, ch. 28, 1 Stat. 264 (repealed 1795).
313. See Act of Feb. 28, 1795, ch. 36, 1 Stat. 424;
314. Act of July 29, 1861, ch. 25, 12 Stat. 281.
315. See, e.g., 12 Stat. at 281.
316. 42 U. S. C. § 264 (a) (2006).
317. Id.
318. Id. § 264 (b).
319. JONATHAN ALTER, THE DEFINING MOMENT: FDR'S HUNDRED DAYS AND THE TRIUMPH OF HOPE 5 (2006).
320. Id.
321. ARTHUR M. SCHLESINGER, JR., THE AGE OF ROOSEVELT: THE COMING OF THE NEW DEAL 3 (1958).
322. WILLIAM E. LEUCHTENBURG, FRANKLIN D. ROOSEVELT AND THE NEW DEAL 30 (1963).
323. See Frank R. Kent, White House Technique, 9 VA. Q. REV. 372, 372-74 (1933).
324. Id. (attributing Roosevelt's achievements during the Hundred Days, in part, to the joint presence of a "thoroughly scared country" and "a thoroughly scared Congress").
325. Clinton Rossiter, who cites Kent's article, ROSSITER, supra note 14, at 259 n. 12, also quotes Harold Laski's observation that "[i]n a crisis,... public opinion compels the abrogation of the separation of powers. There is really only one will in effective operation, and that is the will of the president."
326. Id.
327. (quoting HAROLD J. LASKI, THE AMERICAN PRESIDENCY, AN INTERPRETATION 154-55 (1940)).
328. On the evening of March 9, 1933, Congress received "a single copy of [the] emergency banking bill", and, by 8:30 p. m., Congress passed it. Roger I. Roots, Government by Permanent Emergency: The Forgotten History of the New Deal Constitution, 33 SUFFOLK U. L. REV. 259, 266 (2000). A Republican opponent, Pennsylvania Representative McFadden told his colleagues, "I regret that the membership of the House has had no opportunity to consider or even read this bill.... It is an important banking bill. It is a dictatorship over finance in the United States. It is complete control over the banking system in the United States."
329. CONG. REC. 80 (1933) (statement of Rep. McFadden). "I expect to vote for the bill", said Texas Senator Thomas Connally, "though it contains grants of powers which I never before thought I would approve in time of peace."
330. Id. at 65 (statement of Sen. Connally). Virginia Senator Carter Glass told his colleagues that "[t]here are provisions in the bill to which in ordinary times I would not dream of subscribing, but we have a situation that invites the patriotic cooperation and aid of every man who has any regard for his country."
331. Id. at 58 (statement of Sen. Glass).
332. See David Fettig, Lender of More Than Last Resort, THE REGION 14 (2002), http://www.minneapolisfed.org/pubs/region/02-12/lender.pdf.
333. See generally Emergency Relief and Construction Act of 1932, ch. 520, § 210, 47 Stat. 709, 715 (providing that "[i]n unusual and exigent circumstances, the Federal Reserve Board, by the affirmative vote of not less than five members" may authorize extraordinary loans). Fettig notes that "the 1932 amendment", itself amended by 1934 legislation, "is only meant to address crisis situations."
334. Fettig, supra, at 18 (emphasis added).
335. David Wessel recently emphasized the importance of the 1932 legislation. DAVID WESSEL, IN FED WE TRUST: BEN BERNANKE'S WAR ON THE GREAT PANIC 161 (2009) ("Bernanke and [then President of the New York Federal Reserve Timothy] Geithner knew Section 13 (3) of the Federal Reserve Act existed but never thought they would use it. Indeed, within the Fed, there long had been anxiety that any public declaration of circumstances to be 'unusual and exigent' would be so alarming it could make matters worse.").
336. A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495, 553 (1935) (Cardozo, J., concurring).
337. See RUBIN, supra note 90, at 2;
338. Sanford Levinson & Jack M. Balkin, Morton Horwitz Wrestles with the Rule of Law, in TRANSFORMATIONS IN AMERICAN HISTORY: LAW, IDEOLOGY, POLITICS, AND METHOD (Daniel W. Hamilton & Alfred L. Brophy eds., forthcoming 2010).
339. See Barron & Lederman, Constitutional History, supra note 142, at 1042-55.
340. Id. at 1044-47.
341. See, e.g., id. at 1052 n. 458.
342. Id.
343. (quoting ARTHUR M. SCHLESINGER, JR., THE IMPERIAL PRESIDENCY 115 (Mariner Books 2004) (1973)). FDR's speech, delivered on Labor Day, occurred within two months of the Supreme Court's disposition of the "Nazi Saboteur's Case."
344. See id.
345. See generally Ex parte Quirin, 317 U. S. 1 (1942). During the proceedings in Quirin, Attorney General Francis Biddle suggested privately to members of the Court that the President was determined to execute the saboteurs and would execute them regardless of what the Court said.
346. See Barron & Lederman, Constitutional History, supra note 142, at 1051.
347. ROSSITER, supra note 14, at 268.
348. Id. at 269.
349. See id.
350. See supra notes 144-48 and accompanying text.
351. See Habeas Corpus Act of 1863, ch. 81, § 1, 12 Stat. 755 (granting authority to the President to suspend writs of habeas corpus during the Civil War).
352. Act of Mar. 9, 1933, ch. 1, § 1, 48 Stat. 1, 1.
353. See George W. Bush, Speech to Congress (Sept. 20, 2001), available at http://www.washingtonpost.com/wp-srv/nation/specials/attacked/transcripts/bush address-092001.html (pledging to work with Congress to fight a new war on terror);
354. cf. David Glazier, Playing by the Rules: Combating Al Qaeda Within the Law of War, 51 WM. & MARY L. REV. 957, 959 (2009) (discussing the Bush Administration's adoption of the "war" nomenclature after Sept. 11, 2001).
355. Pub. L. No. 107-40, 115 Stat. 224 (2001).
356. Pub. L. No. 107-56, 115 Stat. 272 (2001).
357. Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135.
358. See Richard W. Stevenson, Signing Homeland Security Bill, Bush Appoints Ridge as Secretary, N. Y. TIMES, Nov. 26, 2002, at A1.
359. See, e.g., GOLDSMITH, supra note 189;
360. SAVAGE, supra note 140.
361. 542 U. S. 507, 509 (2004).
362. 548 U. S. 557, 567 (2006).
363. See Charlie Savage, To Critics, New Policy on Terror Looks Old, N. Y. Times, July 1, 2009, at A14.
364. Pub. L. No. 109-366, 120 Stat. 2600 (codified in scattered sections of 10, 18, 28, and 42 U. S. C.).
365. Pub. L. No. 110-55, 121 Stat. 552 (to be codified in scattered sections of 50 U. S. C.).
366. Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008, Pub. L. No. 110-261, 122 Stat. 2436 (to be codified in scattered sections of 50 U. S. C.).
367. A good example of congressional cravenness in the face of presidential demands for emergency power is Pennsylvania Senator Arlen Specter's treatment of the Military Commissions Act of 2006. Serving as the Republican Chairman of the Senate Judiciary Committee, Specter insisted that the Act would "set back basic rights by some 900 years" by suspending the writ of habeas corpus. Carl Hulse & Kate Zernike, Legislation Advances on Terrorism Trials, N. Y. TIMES, Sept. 28, 2006, at A1. Having offered his complaints, Specter promptly voted for the bill.
368. Charles Babington & Jonathan Weisman, Senate Approves Detainee Bill Backed by Bush; Constitutional Challenges Predicted WASH. POST, Sept. 29, 2006, at A1. Perhaps Specter had no choice because he had to express solidarity with the leader of his (then) political party or face a primary challenge in a later election.
369. Cf. id. (describing the partisan arguments surrounding the passage of the Military Commissions Act of 2006). But many Democrats were equally eager to demonstrate their commitment to President Bush's "war on terror", lest they lose votes in the 2006 midterm elections.
370. Cf. id. (stating that some Democrats voted for the Military Commissions Act of 2006). In fact, the Democrats regained control of Congress in those elections.
371. Michael D. Shear & Alec MacGillis, Democrats Take Control of Senate as Allen Concedes to Webb in Va., WASH. POST, Nov. 10, 2006, at A1. Perhaps they gained political benefits from demonstrating that they also believed that Guantánamo detainees had no rights that the United States was bound to respect.
372. See generally Sanford Levinson, Slavery and the Phenomenology of Torture, 74 SOC. RES. 149, 149-50 (2007) (analogizing treatment of " terrorists" with slavery).
373. See Louis Fisher, The Korean War: On What Legal Basis Did Truman Act?, 89 AM. J. INT'L L. 21, 21 (1995).
374. See id.
375. See id. at 32.
376. The United States was the third country to ratify the United Nations Charter, behind Nicaragua and El Salvador. OFFICE OF THE HISTORIAN, U. S. DEP'T OF STATE, THE UNITED STATES AND THE FOUNDING OF THE UNITED NATIONS, AUGUST 1941-OCTOBER 1945 (Oct. 2005), http://www.state.gov/r/pa/ho/pubs/fs/55407.htm. "In a testament to the sustained wartime efforts to build support for the United Nations, the Charter was approved in the Senate on July 28, 1945, by a vote of 89 to 2, with 5 abstentions."
377. Id.
378. President Bill Clinton's bombing of the Federal Republic of Yugoslavia in 1999 is the notable exception. Letter to Congressional Leaders Reporting on Airstrikes Against Serbian Targets in the Federal Republic of Yugoslavia (Serbia and Montenegro), 35 WKLY. COMP. PRES. DOC. 989 (May 25, 1999) (informing congressional leaders of the bombings). Unlike President Truman, President Clinton was not able to base his authority on the U. N. Charter, since there was a plausible argument that the bombing was in violation of Article 2 of the Charter.
379. Cf. id. (stating that the authority for President Clinton to conduct the airstrikes was his "constitutional authority to conduct U. S. foreign relations and as Commander in Chief and Chief Executive"). Instead, the President based his authority on his Article II powers and the need "to demonstrate the seriousness of NATO's purpose."
380. Id. The Clinton Administration's Office of Legal Counsel eventually justified the bombing on the basis of a strained reading of a congressional appropriations law.
381. See Barron & Lederman, Constitutional History, supra note 142, at 1090 n. 619.
382. 343 U. S. 579, 589 (1952).
383. Edmund L. Andrews, Fed Chief Shifts Path, Inventing Policy in Crisis, N. Y. TIMES, Mar. 16, 2008, at A1 (emphasis omitted).
384. It is telling that Wall Street Journal economics editor David Wessel named his recent book In Fed We Trust: Ben Bernanke's War on the Great Panic. WESSEL, supra note 231.
385. Cf. Elisabeth Bumiller, Not 'the Decider,' but Stirring Anxiety, N. Y. TIMES, Apr. 24, 2006, at A17 (quoting President George W. Bush as stating "I'm the decider, and I decide what's best").
386. See, e.g., S. AFR. CONST. 1996 ch. 2, § 37 (providing that Parliament may declare a state of emergency when "the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency"). Threats to "the life of the nation" may be caused by distinctly different events and may require distinctly different skills to manage.
387. See, e.g., WESSEL, supra note 231, at 196 ("Bush did as he did at almost every stage of the Great Panic: he delegated.").
388. Id. ("More than a year into a financial panic that had become the biggest threat to American prosperity in a generation, the president of the United States remained largely a spectator as the Treasury secretary and Fed chairman he had appointed made and executed the plays.").
389. See, e.g., STEVEN G. CALABRESI & CHRISTOPHER S. YOO, THE UNITARY EXECUTIVE: PRESIDENTIAL POWER FROM WASHINGTON TO BUSH (2008) (reviewing the history of the unitary executive theory);
390. Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 HARV. L. REV. 1153, 1165-66 (1992).
391. See, e.g., STEPHEN SKOWRONEK, THE POLITICS PRESIDENTS MAKE: LEADERSHIP FROM JOHN ADAMS TO BILL CLINTON 411 (1997) ("Whatever the limits of the Reagan reconstruction, no president in recent times has so radically altered the terms in which prior governmental commitments are now dealt with or the conditions under which previously established interests are served.").
392. Cf. CALABRESI & YOO, supra note 268, at 374 (noting Reagan's efforts to wield greater control over the various parts of the executive branch).
393. See Stephen Skowronek, The Conservative Insurgency and Presidential Power: A Developmental Perspective on the Unitary Executive, 122 HARV. L. REV. 2070, 2073 (2009).
394. See Barrie Markham Rhodes, From Viking Warrior to English King-Canute (Knud) the Great, VIKING NETWORK, Nov. 8, 2000, http://www.viking.no/e/people/e- knud.htm.
395. See id.
396. See CALABRESI & YOO, supra note 268, at 376.
397. See id.
398. See Skowronek, supra note 271, at 2095.
399. See, e.g., CALABRESI & YOO, supra note 268, at 376.
400. See id.
401. See David Jackson & Mimi Hall, Obama Stimulus Bill 'on Track' to Pass, USATODAY.cOM, Jan. 23, 2009, http://www.usatoday.com/news/washington/2009- 01-23-obama-friday-N.htm.
402. See Stephen M. Griffin, The Bush Presidency and Theories of Constitutional Change 14 (Feb. 12, 2009) (unpublished manuscript, on file with author).
403. Mara Liasson: On Obama's Team, Ex-Clinton Staffers Get Do-Over, (NPR radio broadcast Dec. 23, 2008), available at http://www.npr.org/templates/story/ story.php?storyId=98593976.
404. See ROSSITER, supra note 14, at 20.
405. See id. at 23. Among the limitations were that the Senate would specify the purpose of the dictatorship and that the dictator could not control the treasury, but had to rely on money that the Senate appropriated.
406. See id. at 24.
407. See id. at 20.
408. See discussion supra Part II. D.
409. For a scholarly analysis of the President's power to shape public opinion through rhetoric, see JEFFREY K. TULIS, THE RHETORICAL PRESIDENCY (1987).
410. See, e.g., President George W. Bush, Address After Terrorist Attacks on New York and Washington (Sept. 11, 2001), available at http://archives.cnn.com/ 2001/US/09/11/bush.speech.text/index.html (asserting that "our way of life, our very freedom came under attack in a series of deliberate and deadly terrorist acts");
411. President George W. Bush, Address to a Joint Session of Congress (Sept. 20, 2001), available at http://archives.cnn.com/2001/US/09/20/gen. bush.transcript/("This is not, however, just America's fight.... This is the fight of all who believe in progress and pluralism, tolerance and freedom.").
412. See President George W. Bush, Speech in Atlanta at the Georgia World Congress Center in Atlanta (Nov. 8, 2001), available at http://archives.cnn.com/ 2001/US/11/08/rec.bush.transcript/("This is a different war from any our nation has ever faced, a war on many fronts, against terrorists who operate in more than 60 different countries. And this is a war that must be fought not only overseas, but also here at home.").
413. See id.
414. See President George W. Bush, Historical Analogies for the War on Terror: Address at the Heritage Foundation (Nov. 1, 2007), available at http://www.presidentialrhetoric.com/speeches/11.01.07.html.
415. See id.
416. See id.
417. See Griffin, supra note 280, at 46-47.
418. See, e.g., Barack Obama, The Action Americans Need, WASH. POST, Feb. 5, 2010, at A17;
419. President Barack Obama, Weekly Address (Feb. 7, 2009), available at http://www.presidency.ucsb.edu/ws/print.php?pid=85738;
420. President Barack Obama, Press Conference by the President (Feb. 9, 2009), available at http://www.whitehouse.gov/the-press-office/ PressConferencebythePresident;
421. Posting of Amanda Scott to Organizing for America, http://my.barackobama. com/page/community/post/amandascott/gGglq4 (Oct. 22, 2008, 13:19 EST).
422. President Barack Obama, Inaugural Address (Jan. 20, 2009), available at http://www.whitehouse.gov/blog/inaugural-address/.
423. See BARACK OBAMA, CHANGE WE CAN BELIEVE IN: BARACK OBAMA'S PLAN TO RENEW AMERICA'S PROMISE 26 (2008).
424. President Barack Obama, Address at the Veterans of Foreign Wars Convention in Phoenix, Arizona (Aug. 17, 2009), available at http://www.presidency.ucsb.edu/ws/print.php?pid=86545.
425. See id.
426. See, e.g., Rory Stewart, The Irresistible Illusion, LONDON REV. OF BOOKS, July 9, 2009, at 3, available at http://www.lrb.co.uk/v31/n13/rory-stewart/the- irresistible-illusion ("[Obama's language] misleads us in several respects simultaneously: minimising differences between cultures, exaggerating our fears, aggrandising our ambitions, inflating a sense of moral obligations and power, and confusing our goals.").
427. See, e.g., Edmund L. Andrews & Stephen Labaton, Bailout Plan: $2.5 Trillion and a Strong U. S. Hand, N. Y. TIMES, Feb. 11, 2009, at A1 (noting that the government bailout plan will have more "transparency and oversight" than the Troubled Assets Relief Program).
428. Cf. PHILLIP J. COOPER, BY ORDER OF THE PRESIDENT: THE USE & ABUSE OF EXECUTIVE DIRECTION ACTION 71 (2002) ("Presidents clearly have been more than willing to declare emergencies in order to justify their action, and the temptation to do so can be overwhelming.").
429. During Bush's presidency, for example, Democrats attacked Bush's lack of attention to Katrina, health care, and the economy; during the first year of Obama's presidency, Republicans have attacked Obama's inattention to terrorism, the growth of government and deficit spending. Compare David Firestone, Democrats Pulling Together United Front Against G. O. P., N. Y. TIMES, Mar. 3, 2003, at A19 (noting Democrats' criticisms of President Bush's domestic policies for lacking adequate attention to medical and social needs while threatening the economy)
430. with Carl Hulse & David M. Herxzenhorn, Seeking Cudgel, Republicans Return to National Security Issue, N. Y. TIMES, May 2, 2009, at A12 (noting Republican criticism of President Obama's terrorism policy)
431. and David M. Herxzenhorn, Senate Clears Spending After Fractious Debate, N. Y. TIMES, Mar. 11, 2009, at A19 (noting Republican criticism of President Obama's government spending policy).
432. See Sheryl Gay Stolberg & Jim Rutenberg, Rumsfeld Resigns; Bush Vows to Work with Majority, N. Y. TIMES, Nov. 9, 2006, at A1.
433. Vice President Dick Cheney's powerful influence, especially in Bush's first term, may have contributed to the Administration's inflexibility. See generally BARTON GELLMAN, ANGLER 37, 390 (2008) (arguing that Vice President Cheney's truculence, personal loyalty to Donald Rumsfeld, and visible contempt for the views of anyone outside a narrow band of Administration insiders probably caused the Administration significant harm).
434. See discussion supra Part II. D.
435. Max Weber, Parliament and Government in a Reconstructed Germany (1917)
436. reprinted in 2 MAX WEBER: ECONOMY AND SOCIETY 1381, 1451-59 (Guenther Roth & Claus Wittich eds., 1978).
437. See id.
438. See id.
439. See Gerhard Casper, Lecture at the John W. Kluge Center at the Library of Congress: Caesarism in Democratic Politics-Reflections on Max Weber (Mar. 22, 2007), available at http://ssrn.com/abstract=1032647.
440. See SCHEUERMAN, supra note 34, at 39, 106.
441. See Thomas L. Friedman, Op-Ed., From the Gut, N. Y. TIMES, Sept. 10, 2008, at A25 ("But Obama got where he is today by defining himself as the agent of change and by defining change as the issue in this election. ").
442. See David Carr, Drawing a Bead on the Press, N. Y. TIMES, Sept. 8, 2008, at C1 (describing Palin's appeal as "the kind of woman you could tell your troubles to and she'd give you a hug" (quoting Bonnie Fuller)).
443. See Mark Leibovich, At Rallies of Faithful, Contrasts in Red and Blue, N. Y. TIMES, Oct. 30, 2008, at A1 (describing Barack Obama's crowds as "the biggest and the loudest", followed by Sarah Palin's crowds).
444. See Michael Falcone, McCain's Break with Bush, N. Y. TIMES, Aug. 7, 2008, at A17.
445. Compare id. (describing McCain's advertisement, in which he states that the United States is "worse off than [it] was four years ago" and describes himself as "the original maverick")
446. with Friedman, supra note 311 (noting that Obama defined the primary issue in the election as "change").
447. For a more realistic, institutionally oriented take on why the American political system is broken, see LEVINSON, supra note 113, at 9 (attributing "the defects of our polity" to the inadequacy of the Constitution)
448. and THOMAS E. MANN & NORMAN J. ORNSTEIN, THE BROKEN BRANCH: HOW CONGRESS IS FAILING AMERICA AND HOW TO GET IT BACK ON TRACK, at x-xi (2006) (listing current practices within Congress that have caused past members of Congress to "barely recognize the House or Senate"), for some reasons why our system of government actually is broken.
449. This aspect of our political system leads sober observers to suggest that the United States may be verging on the precipice of "ungovernability. " See, e.g., Paul Krugman, Pass the Bill, N. Y. TIMES, Dec. 18, 2009, at A35 ("Demand a change in Senate rules that, combined with the Republican strategy of total obstructionism, are in the process of making America ungovernable.").
450. See, e.g., RealClearPolitics, Congressional Job Approval, http://www.real clearpolitics.com/epolls/other/congressional-job-approval-903.html#news (last visited May 6, 2010) (estimating that as of mid-January 2010, polls show that only approximately twenty-one to thirty-two percent of the American public approve of Congress).
451. See, e.g., YouTube: The White House's Channel, http://www.youtube.com/ user/whitehouse (last visited May 6, 2010).
452. Although Bush was criticized repeatedly during his Administration by his liberal critics (and at the end of his second term by many of his fellow conservatives), there was an outpouring of encomiums to his character, courage, religious faith, and leadership qualities following the 9/11 terrorist attacks. A sampling of this literature would include: DAVID AIKMAN, A MAN OF FAITH: THE SPIRITUAL JOURNEY OF GEORGE W. BUSH (2004);
453. DAVID FRUM, THE RIGHT MAN: THE SURPRISE PRESIDENCY OF GEORGE W. BUSH (2003);
454. RONALD KESSLER, A MATTER OF CHARACTER: INSIDE THE WHITE HOUSE OF GEORGE W. BUSH (2004);
455. STEPHEN MANSFIELD, THE FAITH OF GEORGE W. BUSH (2003);
456. RICHARD MINITER, SHADOW WAR: THE UNTOLD STORY OF HOW BUSH IS WINNING THE WAR ON TERROR (2004);
457. JOHN PODHORETZ, BUSH COUNTRY: HOW DUBYA BECAME A GREAT PRESIDENT WHILE DRIVING LIBERALS INSANE (2004);
458. BILL SAMMON, MISUNDERESTIMATED: THE PRESIDENT BATTLES TERRORISM, JOHN KERRY, AND THE BUSH HATERS (2004);
459. "WE WILL PREVAIL": PRESIDENT GEORGE W. BUSH ON WAR, TERRORISM, AND FREEDOM (Nat'l Review ed., 2004).
460. See, e.g., Harrison Rainie, The New Era of Redemption Politics, U. S. NEWS & WORLD REP., Sept. 26, 1994, at 18, 18 (recalling Bill Clinton's "I feel your pain" statement).
461. See Jack M. Balkin, The Constitution in the National Surveillance State, 93 MINN. L. REV. 1, 3-4 (2008) ("The question is not whether we will have a surveillance state in the years to come, but what sort of surveillance state we will have.");
462. Balkin & Levinson, supra note 191, at 533.
463. See GOLDSMITH, supra note 189, at 65-66 (noting the increase in legalization since World War II). Goldsmith is quite critical of the trend toward legalization and argues that Americans should place their primary reliance on the capacities for wise judgment by presidents.
464. See Sanford Levinson, Constitutional Dictators, DISSENT, Summer 2009, at 99, 105 ("We ignore the importance of character, and overestimate the importance of 'law,' at our peril, according to Goldsmith.").
465. War Powers Resolution, Pub. L. No. 93-148, 87 Stat. 555 (1973)
466. (codified as amended at 50 U. S. C. §§ 1541-1548) (setting various time limits on presidential introduction of troops into hostilities without congressional approval).
467. See 18 U. S. C. § 2340A (2006);
468. Detainee Treatment Act of 2005 (McCain Amendment), 42 U. S. C. § 2000dd (2006);
469. Convention Against Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment art. 3, opened for signature Dec. 10, 1984, 1465 U. N. T. S. 85
470. I. L. M. 1027 (entered into force June 26, 1987).
471. See Bybee Memorandum, supra note 141, at 33-39 (arguing that congressional interference with the President's power to detain and interrogate persons would violate Article II).
472. See supra note 322 and accompanying text.
473. See discussion supra Part II. E.
474. THE FEDERALIST NO. 41 (James Madison), supra note 5, at 295.
475. See discussion supra Part II. D.
476. Cf. GIOVANNI SARTORI, COMPARATIVE CONSTITUTIONAL ENGINEERING: AN INQUIRY INTO STRUCTURES, INCENTIVES AND OUTCOMES 83 (1994) (defining one criterion for the presidential system as "the direct or direct-like popular election of the head of state").
477. See RICHARD J. ELLIS, PRESIDENTIAL TRAVEL: THE JOURNEY FROM GEORGE WASHINGTON TO GEORGE W. BUSH 4 (2008) (describing the progressive "monarchization" of presidential travel over our history, which paradoxically causes the President to be "more visible but less [personally] accessible" to any given American citizen).
478. See JOSÉ ANTONIO CHEIBUB, PRESIDENTIALISM, PARLIAMENTARISM, AND DEMOCRACY 159 (2007).
479. See id. at 3 (arguing that "[p]residentialism can be as stable as parliamentarism").
480. Newly reelected presidents might also enjoy a "honeymoon period" that shields them from public scrutiny. However, the honeymoon might not last long, especially in a president's second term. (The experiences of George W. Bush, Bill Clinton, and Ronald Reagan are all instructive in their own ways.).
481. See LEVINSON, supra note 113, at 82-83.
482. Bill Clinton received only forty-nine percent of the popular vote, though he decisively defeated the Republican candidate, Senator Robert Dole, who received forty-one percent. Third-party candidate Ross Perot received eight percent. See Richard L. Berke, Clinton Elected to a 2d Term with Solid Margins Across U. S.; G. O. P. Keeps Hold on Congress, N. Y. TIMES, Nov. 6, 1996, at A1.
483. See LEVINSON, supra note 113, at 119-21 (proposing that a "no confidence" vote replace the current impeachment system).
484. See id. at 119-20.
485. See id. at 120.
486. See DELEGATION AND ACCOUNTABILITY IN PARLIAMENTARY DEMOCRACIES 152, 156 (Kaare Strøm, Wolfgang C. Müller & Torbjörn Bergman eds., 2003) (describing the constructive vote of no-confidence and its adoption in various countries).
487. Israel's no-confidence legislation can be found in Basic Law: The Government, 2001, S. H. 1780, § 28, available at http://www.knesset.gov. il/laws/special/eng/basic3-eng.htm.
488. See LEVINSON, supra note 113, at 120.
489. ROSSITER, supra note 14, at 298 (emphasis omitted).
490. See discussion supra Part II. E.
491. ROSSITER, supra note 14, at 299 (emphasis omitted).
492. See S. AFR. CONST. 1996 art. 37, § 2.
493. Militia Act of 1795, ch. 36, 1 Stat. 424
494. (repealed in part 1861 and current version at 10 U. S. C. §§ 331-335 (2006)).
495. Insurrection Act of 1807, ch. 39, 2 Stat. 443
496. (current version at 10 U. S. C. §§ 331-335 (2006)).
497. Suppression of the Rebellion Act of 1861, ch. 25, 12 Stat. 281
498. (current version at 10 U. S. C. § 332 (2006));
499. see also Ku Klux Klan (Civil Rights) Act of 1871, ch. 22, §§ 3-4, 17 Stat. 13, 14-15
500. (expired in part in 1873 and current version at 10 U. S. C. § 333 (2006)).
501. For a discussion of the Militia Acts, see Stephen I. Vladeck, Emergency Power and the Militia Acts, 114 YALE L. J. 149, 156-69 (2004).
502. See discussion supra Part II. E.
503. See ROSSITER, supra note 14, at 16-25.
504. See Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 HARV. L. REV. 2311 (2006).
505. See id. at 2368-72.
506. David Fontana, Government in Opposition, 119 YALE L. J. 548, 554 (2009).
507. See BRUCE ACKERMAN, BEFORE THE NEXT ATTACK: PRESERVING CIVIL LIBERTIES IN AN AGE OF TERRORISM 80 (2006).
508. THE FEDERALIST NO. 1 (Alexander Hamilton), supra note 5, at 89.