Let the historians charting the growth of executive power take note of August 30, 2015, which is the day America became a nation in which Presidents could rename mountains and nobody asked how.
Last week, Germany’s chief prosecutor—Generalbundesanwalt Harald Lange—got himself fired. It’s a big enough deal to occupy the front pages and, in coming months and years, armies of administrative lawyers and scholars. The precise facts and circumstances are a bit murky, and the story is still unfolding. Enough is known, though, to invite some rule-of-law thoughts and a few cautious transatlantic comparisons and contrasts.
Like movie sequels, second editions of notable scholarly books often disappoint. Phillip J. Cooper’s By Order of the President: The Use and Abuse of Executive Direct Action (University Press of Kansas, second edition) is an exception.
THE WHITE HOUSE—Declaring his intent to cure the public of its worshipful disposition toward the executive office, and consonant with the Whiggish constitutional modesty on which he campaigned in 2008, President Obama announced that the much-anticipated location of his Presidential Library and Museum will be nowhere.
“Presidential libraries are monuments less to the egos of individual executives, which is bad enough, than to presidential gigantism,” Mr. Obama explained in a statement, which was issued in writing in order to diminish the grandeur an Oval Office setting would otherwise have lent it. “The presidency is a swollen institution that distorts our constitutional system. I consequently will donate my papers to the University of Chicago School of Law, whose faculty I hope will study the constitutional implications of my and other recent presidencies.”
In his second term, President Obama has unilaterally pressed his agenda, now that he has lost the congressional support needed to enact his political priorities through legislation. These uses or abuses of executive power include the suspension of deportation and granting of work permits for illegal aliens and various decisions to delay the effective date of certain provisions of Obamacare. As a consequence of the President’s actions, the proper scope of executive authority should figure front and center in the coming presidential campaign.
In conducting this important debate over the nature of our republican order, we must demand that candidates separate out their policy positions from their position on the appropriate scope of executive power. Thus, it is perfectly possible to embrace the policy goals of the President’s executive order on immigration while objecting to its constitutional basis, and vice-versa. Only by forcing candidates to answer the constitutional question can we have any confidence that they will stick to a consistently constitutional view of executive power. After a change in partisan control of the Presidency, partisans in both parties have had a habit of waking up on election morning to find that Article II has acquired a new meaning.
In questioning candidates, it is also important to make a distinction between the unity of the executive and the scope of its power—issues that are often confused.
Executive power has been growing. Many people on the right have come to appreciate this growth over the last 6 years of the Obama Administration. But the growth in recent years first began under George W. Bush. In this area, Bush and Obama have more in common than not.
Can anything be done about this? While it is possible that the courts could act to constrain the executive, the better way – in terms of effectiveness – would be if the Congress were to pass reforms of executive power. But can Congress feasibly constrain the executive? One question is whether Congress is willing to take such constraining action. Another is whether Congress would have the power to take such action, given that the President has a veto over legislation.
If one looks at modern American history, there appear to be two situations where significant reforms of the existing power of the executive branch have been enacted.
Over at the Originalism Blog, Mike Ramsey and Seth Barrett Tillman have been debating whether House Speaker John Boehner’s invitation to Israel’s Prime Minister Netanyahu to speak to Congress is unconstitutional. See also the posts by David Bernstein and Peter Spiro.
Here I do not want to take a position on the issue, but just to note some interpretive moves that Mike and Seth make concerning the Receive Ambassadors Clause, which provides that the President “shall receive Ambassadors and other public Ministers.”
Seth argues for a strict reading of ambassador and public minister. He argues that Netanyahu is neither an ambassador nor a public minister. An ambassador has a meaning that excludes heads of government and other public ministers extends only to “diplomatic officials having lesser status or rank than ‘Ambassadors.’” He supports this reading of other public ministers with various other clauses that seem to suggest this reading of other public Ministers. See Article 2, Section 2, Clause 2 (referring to “Ambassadors, other public Ministers and Consuls” as under the scope of the President’s appointment power). See also Article 3, Section 2, Clauses 1 and 2 (similar as to judicial power). As a reading of the language, Seth’s argument here is quite plausible.
The enigma, and perhaps impetus, of swelling executive power is that when constitutionally asserted, the presidency is shrinking. Witness the White House’s apparent intent to use the State of the Union address to propose that—wait for it—Congress enact national standards regarding how quickly companies must inform customers of data breaches.
Now, hacking is bad and reporting it is good. But it is also time—and the constitutional conservative should reach this conclusion with due reluctance—to abolish the State of the Union address, whose most pernicious effect is its political imperative for the President to propose as many new ideas as possible, regardless of the need for them, while Congress occupies a supine posture of reaction.
Cass Sunstein has offered a new solution to advance good governance in a time of partisanship—what he terms an age of “partyism.” Because a partisan world leads to gridlock in Congress, he suggests that executive agencies should continue to be empowered with substantial latitude to interpret their own statutes. Indeed, Professor Sunstein argues that agencies should gain a “bit more” discretion to construe existing statutes since Congress will not be doing much updating.
Michael Greve offered his own excellent demurral to Professor Sunstein’s solution. Here are two additional points of critique. First, empowering agencies is not neutral with respect to partisanship because bureaucrats lean to the left. Second, empowering agencies is not neutral as an ideological matter. The progressive agenda itself needs substantial discretion to continue the effectiveness and political endurance of much centralized regulation. In contrast, conservatives and libertarians are more sympathetic to market and other forms of decentralized order that will take hold even if federal regulation cannot be updated.
There is substantial evidence to support the first point that most federal employees lean to the left of Republicans.
Professor Cass R. Sunstein has unearthed a new –ism: partyism, meaning an animus or aversive reaction to someone based solely on party membership. As in: “I don’t care if people think I’m a racist or a child molester. But I’d die if they thought I’m a Democrat.” (I think Ann Coulter said that long ago. If she didn’t, she certainly could have.) Partyism, Professor Sunstein writes, is on the rise, and it contributes to political gridlock.