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Madison's Nightmare: How Executive Power Threatens American Democracy

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This book is much more about what the problem is than how to solve it, but the two things are not really separable, and the analysis of the problem here is invaluable.

This is a detailed and extensively researched look at the interactions among the three branches of our federal government, and the checks and balances employed - or the lack thereof. Shane takes a long view and sees 1981 and the Reagan presidency as the most radical break with the past, albeit the creation of a new era dramatically advanced by George W. Bush, following lesser advances by his father and Bill Clinton. Shane looks at domestic governance as much as foreign policy, and examines the relationships that departments and agencies have with the White House and with Congress.

It is now routine for the White House to send cabinet secretaries to swing electoral districts for political purposes. No department head sneezes without the president's permission. And the entire federal government is thought of as part of the executive branch -- with the exception of Congress, which is left to constitute the legislative branch all on its own. But look at how the Constitution viewed things. It devoted Article I and over half the length of the entire Constitution to Congress, which it gave virtually every power conceived of, touching on many of the current departments of the federal government, and then explicitly stipulating that Congress should have any other necessary powers as well. Congress, according to the Constitution, has the power . . .

"To make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States or in any Department or Officer thereof."

Stubby little Article II gives very few powers to the president, nowhere suggesting that he or she should have ownership or command over the various agencies of government, and in fact not mentioning any other than the military, except to say that the president can make appointments, and to say this:

"He may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices."

This does refer to the departments as "executive departments," and Article II does begin by giving "the executive power" to the president. But it's worth pausing and stepping outside our own era for just long enough to wonder what "executive" means. Article II also says what the president is required to do, namely:

"He shall take Care that the Laws be faithfully executed."

Congress, until relatively recently, was understood to be central to our government. Only Congress is given the power to borrow money, to regulate commerce with foreign nations, to handle immigration and bankruptcies and the creation of money, transportation, the post office, the punishment of crimes, establishment of courts, defining and punishing crimes by other nations, declaring war, ending war, raising and spending money, creating and maintaining and overseeing the military, repelling invasions, and so on. These days, the White House is considered central to everything. Laws are made by "executive order" (an "executive order" is something like a faithful betrayal, a self-contradiction), by "signing statement" (a "signing statement" is a statement that one is NOT signing a bill as written) and by drafting legislation in the White House and insisting that Congress pass it out of loyalty to the president.

Imagine the absurdity today of suggesting that a president has the right to ask department heads to report on what they are doing. They are doing what he has told them to do. What Shane suggests is not that the EPA or the Department of Labor should be moved from the executive branch to the legislative, but that there are appropriate roles for both Congress and the president, not just the latter.

I cannot touch here on all of the rich and informed discussions in "Madison's Nightmare," which include perceptive condemnations of the secretive and unaccountable decision-making processes that led to wars in Vietnam and Iraq. I would fault Shane here only with too much generosity in assuming that the presidents in these cases were trying to learn anything that they failed to learn. But Shane is right that Congress must not only have the power to declare war or refuse to; it must also have the power to make public the deliberations that precede that decision. Shane is wrong, however, in my opinion -- and this seems to follow from his analysis -- in omitting from his recommendations at the end of the book any sort of accountability, prosecution, impeachment, or punishment. He does propose that the lawyers who facilitated torture be fired. However, they are -- with a couple of key exceptions -- already out of office. And why would someone as smart as Shane believe that lawyers should be dismissed for writing what they were asked to, but propose no penalty whatsoever for the president or vice president who did the asking? Indeed, how does Shane not notice that (had his book come out earlier) it would have been the torturer in chief who would have had to dismiss his own obliging lawyers?

The title of Shane's book caught my eye immediately, since I believe that increased executive branch power is harmful to the American republic. Over the past 200 plus years the executive branch has grown tremendously, challenging our political system of checks and balances. Both Republican and Democrat administrations have engaged in bolstering the strength of the executive branch. (It is ironic that Republicans, who often advocate smaller government, are at least as guilty as growing government as the Democrats.) The first part of the book focuses on how the checks and balances were set up to work. Then Shane focuses on "aggressive presidentialism" since 1981, presenting many good examples of how presidential power has been used (and abused) over the past few decades. Shane looks at such topics as unilateral policy making, executive privilege, signing statements, and accountability while discussing the Iraq War and other recent events. George W. Bush's increased use of signing statements is just one example of executive abuse. The book goes into good detail about the function of regulatory and oversight agencies.

However, as you read the book, you quickly become aware that the true title of Shane's book should have been "How the Republican Right Threatens Democracy", because the book focuses almost entirely on how Shane believes Republican administrations have grown presidential power, culminating in what Shane calls George W. Bush's "hugely dysfunctional government". Bill Clinton's administration is almost always discussed in a favorable light. Shane's bias was evident by just the third sentence of the preface: "Whether it is a President running foreign policy behind Congress's back, Congress impeaching a President for lying about his sexual affairs, or the Supreme Court effectively deciding a presidential election through a dubious application of equal protection law cut from whole cloth, we seem to have abandoned checks and balances for something very different. At this point, that 'something' looks more and more like a virtually unchecked presidency..." How Congress impeaching a President, or a Supreme Court "deciding" an election, are examples of "virtually unchecked presidency" I don't know. But as you read the book you realize that during the Clinton years, Shane shifts his focus from criticism of the presidency to criticism of the Republican Congress.

Shane writes that the informal practices that sustain the checks and balances "have fallen prey to partisanship, most conspicuously--though not exclusively--the drive for complete policy control by the hard-right wing of the Republican party...." That checks and balances have been weakened by partisanship is all too true. Perhaps the Republican party's role is more conspicuous because they have held the presidency for 20 of the past 28 years? Note also that by focusing the book on events after 1981--with the exception of criticism of the Nixon administration and the Vietnam War--Shane sidesteps any discussion of how Wilson, FDR, Kennedy, Johnson, and Carter grew the power of the administrative branch.

This book contains much useful information about the growth of the executive branch over the past few decades. The thesis is certainly valid--checks and balances are essential to good non-authoritarian government, and the surge in presidential power is a threat. The book presents one of the more thoughtful critiques of the Bush presidency. Shane knows his topic--he was an attorney-adviser in the U.S. Department of Justice Office of Legal Counsel, and assistant general counsel in the Office of Management and Budget. Just beware that the book's arguments are weakened as a result of the author's own partisanship. You can read more of Shane's thoughts on government and law at the Huffington Post.

In this book, Shane contends that over the last thirty years the American constitutional structure of checks and balances has been devastated by a variety of forces producing increasing and increasingly effective claims of unilateral presidential power, what the book calls "presidentialism"--"a theory of government and a pattern of government practice that treat our Constitution as vesting in the President a fixed and expansive category of executive authority largely immune to legislative control or judicial review." The book attends to the contrast between presidentialism and the vision of the framers, deconstructs the recent political events that have furthered presidentialism, disputes on their own turf both the empirical claim that presidentialism is good government practice (particularly in the modern era) and the legal claim that the Constitution, properly understood, supports presidentialism, and, finally, sets out proposed prescriptive steps to find the way back to constitutional pluralism. A theme throughout the book are examples and evidence for Shane's view that a successful separation-of-powers system is as much a matter of norms as a matter of legal rules: "[W]here powers are allocated to each branch precisely with the purpose of rendering each branch vulnerable to the discretion of the others, some degree of institutional self-restraint is imperative."

Beyond that sketch, a project of this (book-length) scope cannot be adequately summarized in one or two paragraphs. I highlight a few points here. The book discusses Presidentialism in the context of both inherent and delegated powers. The former debate considers the President's ability to use presidential authority over military and foreign affairs to act unilaterally, or, indeed, in opposition to specific direction from Congress in such spheres. The latter debate concerns the President's authority over powers that come from Congressional delegation--which includes most domestic policy. In this context, the question is whether the president is "the overseer" or "the decider" for the federal bureaucracy. As developed by Shane, each of these issues emerges as multi-faceted, distinct and important. As an empirical matter, the book argues that "presidentialism" has reduced the quality of presidential decision-making--as a result of the insularity and defensiveness it fosters--and undermines the independent values of the rule of law and respect for alternative ideological perspectives. Shane supports these arguments with brief but trenchant reviews of particular executive actions. The book's final chapter offers prescriptions for a return to Madison's pluralist vision. This includes, first, many suggestions for changes within government, such as a more consultive process for presidential appointments, more consultive legislative agenda-building from the executive, and a statement by the Supreme Court that "presidential signing statements have no jurisprudential weight." Second, the chapter prescribes multiple democracy-promoting initiatives (e.g., election reforms). Such efforts are essential, Peter argues, because of "democracy's foundational aim--legitimating government decision making through processes that respect the value of both political freedom and political equality."