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Yale law professor Bruce Ackerman surveys the last fifty years and sees the American presidency transformed into a potentially dangerous vehicle for political extremism and lawlessness. In his latest book, The Decline and Fall of the American Republic, he suggests some innovative constitutional remedies to address the situation. I put six questions to Ackerman about his new book.
1. “While the British can turn on a dime when the voters send a new
majority party into the House of Commons,” you write, “a successful
constitutional moment in America takes at least a decade before a rising
movement can demonstrate the broad and sustained popular support required to
speak authoritatively for the People.” Is this a strength or weakness of the American
Traditionally, it has been a strength. Modern presidents are forever claiming a
“mandate” for sweeping change in the name of the American people. But it’s a lot
harder for them to make their mandates credible—by returning again and again to
the voters, and gaining their support for their vision. FDR remains the paradigm: In
1932, his New Deal was a vague aspiration; but between 1932 and 1934, Americans
began to see what the Democrats were up to; they gave the Dems their
emphatic support in the mid-terms, and again in 1936. By the end of the 1930s, Americans had given New Deal Democracy the sustained popular support
appropriate for a fundamental change in direction.
But most presidents fail to measure up to FDR’s success—instead of winning
victory after victory, their party suffers defeat in the off-year elections, and
their successors refuse to build on their achievements. The question is whether
presidents in the twenty-first century will respond to these frustrations by
ordering the bureaucracy to implement their “vision” through executive decree—short-circuiting the resistance of Congress and the courts.
Presidents of previous eras had unilateral ambitions, but lacked the massive
bureaucratic muscle to impose their will on the far-flung executive establishment. It was only in 1939
that FDR finally convinced Congress to give him six special assistants. Until
that time, presidents had no permanent staff. They had no choice but to govern
through their Cabinet, which often contained independent political potentates.
But today, there are more than 500 presidential superloyalists in the White
House, and many more in the departments, who can function as presidential
spear-bearers. The overcentralization of power in the White House is partly a
consequence of the growth of the regulatory state at home and our military
hegemony abroad. But it is also a result of our failure to undertake efforts for institutional reforms that will diminish the risks of a runaway presidency.
2. Your book could be compared at many levels with Hannah Arendt’s assessment
of the constitutional tempest at the end of the Nixon presidency, Crises of the
Republic. Of course, Arendt comes away filled with confidence in the
resilience of the American constitutional model and its ability to survive these
crises. Was she too optimistic?
The presidency is a much more dangerous office today than when
Arendt wrote her book. Decline and Fall points to a series of developments
since Nixon’s time that has transformed the modern presidency into a potential platform for charismatic extremism and bureaucratic lawlessness.
For starters, consider the modern system of presidential primaries. Through most of American history, somebody like Sarah Palin could never have gained the support of party leaders who dominated
the traditional party conventions. But today’s primary system—dominant only
since 1972—permits right- or left-extremists to win a major party nomination.
Palin’s a leading contender today only because her hard-right base will flock to
the primaries, and may outvote Republican moderates.
We’ve already had presidents who would never have made it under the pre-1972
Convention system—Carter, Clinton, and Obama would never have been picked by
the party establishment. But we’ve been lucky so far—all three turned out to
be moderates. As Palin suggests, our luck may be running out. And even if she
loses, maybe the next threat will come from the hard-left, not the hard-right. My
book isn’t about particular candidates, but long-term institutional trends.
If and when a charismatic extremist makes it to the White House, she will not
only have a massive staff of superloyalists at her disposal. She will also be in
charge of a powerful media operation constantly projecting her “vision” through scientifically tested sound-bites and imagery. This too is a novelty. Before Pat
Caddell joined Jimmy Carter’s entourage, there was no media guru in the White
House. Now no White House would be complete without a David Axelrod-equivalent.
The systematic deployment of a presidential “politics of unreason” is just the
thing that our Enlightenment Founders sought to avoid.
3. You scrutinize the role of the president’s lawyer—the White House Counsel
and the Office of Legal Counsel at the Justice Department—very closely, and you
see in the “torture memos” evidence of “deep structural pathologies.” How can
these developments be checked?
Once again, politicized presidential lawyering has only developed
during the past 40 years. John Dean was the first White House Counsel who hired
a small, but highly politicized, staff during the Watergate years. Until then,
the president got his advice from the Office of Legal Counsel in the Justice
Department—which was dominated by long-term government lawyers. But now the White House Counsel’s office is as large as the Office of Legal Counsel and both are
dominated by super-loyalists. The “torture memos” are merely symptoms of this
institutional pathology. Future presidents will rely on their high-powered
legal staffs to rubber-stamp their actions even when they defy congressional
We need a fundamental institutional reform—which requires the
president’s lawyers to defend their legal positions before a new Supreme
Executive Tribunal, containing nine judges and appointed with the consent of the
Senate. Each judge should serve for twelve years, and each president should have the power to appoint three of them during each term in office, so long as the Senate gives its advice and consent.
This isn’t the place to get into further details—the key point is to create an
institution with the integrity necessary to say “No” when the president is
violating Congress’ commands.
4. You sharply criticize the group of retired generals who spoke out against
Rumsfeld during the Iraq War, and you see a threat to civilian control of the
military coming from this. But is this really a fair criticism? Is a retired
general not entitled to speak his mind as freely as any other citizen? And
wasn’t this criticism particularly needed to offset the Pentagon’s effective
manipulation of retired military personnel who appeared on the airwaves as
independent pundits—as revealed by the New York Times’s David Barstow? Isn’t
the real threat just the opposite—that Rumsfeld and his crew were attempting to
politicize the upper ranks of the Pentagon by insisting on partisan loyalty and
upending the century-old system of peer-review for the officers corps?
Once again, these recent events are symptoms of deeper pathologies. In the
1980s, the Pentagon created a program which invited retired generals to serve as
“mentors” to the active high command—providing ongoing advice on key military
matters. There are now 160 mentors. In taking the lead in the campaign to fire
Rumsfeld, some of them made it clear that they were speaking for the high
command. While I agreed with their critique in this case, their success in
getting Bush to fire Rumsfeld set a terrible precedent. Perhaps the next time
around, the civilian Secretary will be trying to do something that’s very
sensible—but the generals revolt in defense of their vested interests, and
once again the mentors launch a political assault.
The military managed to do without a “mentoring” program for two hundred years.
It can again function perfectly well without them. The mentors should be abolished before they serve as a vehicle for serious political
abuse by the high command. More generally, we need new Canons of Civil-Military Ethics to provide
the officer corps with concrete guidelines for political activity. The Judicial
Canons of Ethics serve as a useful analogy: just as it helps judges stay clear of
blatant politicking, so should the new Military Canons provide a similar framework for military officers.
5. In the period after 9/11 you see “charismatic executive extremism” and
“bureaucratic lawlessness” as increasingly powerful forces in America. You
don’t seem to feel that the federal judiciary are up to pushing them back, and
you propose a structure that looks suspiciously like the French Conseil d’État
as a means of quickly challenging executive excesses. But considering the
immense hurdles that face someone seeking to amend the constitution, is this a
Consider a worst case scenario: An extremist president wins the White House, and her superloyalists prepare to implement her “vision” through sweeping bureaucratic and military initiatives. As planning proceeds, long-term civil servants protest that the new plans ride roughshod over long-standing statutory requirements. But their objections are swept aside by impressive-looking documents issued by the president’s lawyers that rubber-stamp the new initiatives. As the bureaucracy creates new facts on the ground, and the president’s propaganda machine cranks out supportive sound-bites, citizens take their complaints to the courts—and it may take years before the Supreme Court gets into the act.
By that point, the president’s bureaucratic and propaganda machine may have generated overwhelming momentum. Will the Court have the courage to resist? Or will it retreat from the scene, declaring that the president’s end-run around Congress raises “political questions” that are too hot for the Court to handle?
The point of the Supreme Executive Tribunal is to apply a legalistic break at a far earlier stage in the life-cycle of a runaway presidency—requiring the president’s lawyers to defend their actions in front of the tribunal before they go into effect.
We don’t need a constitutional amendment to create the new tribunal. To the contrary, it is the super-politicized White House Counsel and Office of Legal Counsel that are creating an unconstitutional system in need of correction. Article Three requires the president to take care that “the laws” be faithfully executed—the “laws,” not his own political program. To discharge this constitutional responsibility, he should set up an institutional framework that will reliably say “No” when his charismatic vision is at odds with established legal precedent. The existing super-politicized system of presidential lawyering doesn’t provide this assurance: instead of telling the president what the law is, his lawyers have overwhelming incentives to tell him what he wants to hear. My proposed tribunal—or something like it—is far more in line with fundamental constitutional principles expressed by the text.
Moreover, European experience indicates that similar executive tribunals have
successfully constrained arbitrary action for more than a century. My Supreme Tribunal would operate very differently from its European counterparts, since our constitutional culture is very different from theirs. Nevertheless, their success does suggest that my proposal might serve as a useful check-and-balance.
6. You devote relatively little space in your book to the role of Congress.
Does Mitch McConnell’s recent statement that, after the 2010 election, the prime
role of Republicans in Congress would be to deny Obama re-election in 2012
suggest to you any shift in the understanding of the role played by Congress in
our constitutional system?
For sure, there are plenty of ways Congress can be improved. The Senate filibuster rule, for example, is an obvious abuse, though current efforts at reform are way too simplistic, and my book offers a more nuanced approach. But these congressional reforms efforts should not blind us to a key insight: the entire point of checks and balances is to provide the opposition party with powerful tools—unless, that is, some twenty-first century president manages to repeat the FDR feat of winning a series of elections that gives his party sustained control over Congress and the Court, as well as the presidency.
Until Democrats or Republicans manage to carry the country in a decisive
fashion, we have only two choices—live with our partisan frustrations, or allow some
future president to break the logjam through executive unilateralism. I say
that we should stick with checks-and-balances. If you agree, it is past time to
campaign for a series of institutional reforms that will make the risk of a
runaway presidency less likely over the course of the next century.
More from Scott Horton:
Conversation — March 30, 2016, 3:44 pm
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