Madison’s Nightmare: How Executive Power Threatens American Democracy.
He applied the “Page 99 Test” to his new book, Democracy’s Chief Executive: Interpreting the Constitution and the Defining the Future of the Presidency, and reported the following:
Page 99 of Democracy’s Chief Executive: Interpreting the Constitution and the Defining the Future of the Presidency lands in the middle of a key point. Starting with the Nixon Administration—but at an accelerated pace since Reagan—both Republican and Democratic presidents have innovated in a variety of ways to ratchet up White House control of the larger federal executive establishment. Such centralization of power threatens to elevate the role of our highly polarized presidential politics in administrative policy making, while diminishing the role of expertise and independent agency judgment. The top of the page concludes a description of how George W. Bush used formal presidential statements accompanying his signing of dozens of new congressional enactments into law to assert often novel claims for the scope of unilateral presidential authority. The bottom half is an explanation of how Barack Obama increased the use of so-called “policy czars” to intensify White House oversight of key administrative agencies.Follow Peter M. Shane on Twitter.
By itself, however, page 99 would not give readers a flavor of the book’s overall argument or strategy. My basic position is that how the three branches of government interpret ambiguous constitutional text about the structure and powers of government has a significant impact on whether the contemporary presidency advances American democracy or becomes increasingly autocratic. More specifically, I argue that constitutional theories of the presidency advanced mostly by right-wing lawyers since the Reagan Administration have helped set the stage for the turn towards authoritarianism exhibited most alarmingly (so far) by the administration of Donald J. Trump. Chapter 3 (including page 99) explicates the arcane legal disputes through which aggressive presidentialists have sought to entrench their views of the president’s legal powers into legal doctrine. It also describes how modern presidents have sought to consolidate power in the White House in ways consistent with these doctrinal maneuvers.
Champions of aggressively presidentialist theories insist that the “original public meaning” of our 233-year-old Constitution commands their observance. I argue two points in response. First, the originalists who defend aggressive presidentialism are bad historians. The current Supreme Court’s embrace of ideas such as “unitary executive theory” rests largely on myth. Moreover—although recent research by legal historians shows how the Constitution supports a more pluralistic view of executive power—reliance on “original public meaning” to apply a 1789 Constitution to the needs of contemporary government is inevitably problematic. As I state on pages 138-139: “Constructing. . . contemporary applications of the Constitution by asking how dead generations understood their text runs the risk of being doubly wrongheaded: It mistakenly locates in past generations the legitimate authority to restrict our contemporary political choices, and it runs the risk of pretending that the communicative content of words is properly ascertainable apart from what would have been their real-world implications when the words were written.”
Democracy’s Chief Executive argues for a mode of pragmatic, common law-like constitutional interpretation that would resolve the meaning of ambiguous provisions in ways that advance the needs of contemporary American democracy. Such an adaptive constitutional approach would favor interpretations that increase the prospects for more inclusive deliberation both within and among the three branches of government, and that protect the rule of law by promoting reasoned decision-making and genuine accountability in the exercise of power. A concluding chapter lays out a series of reforms both within and beyond government that would enable a more democratic form of constitutionalism to take hold.
--Marshal Zeringue
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