by Peter M. Shane. Chicago: University of Chicago Press, 2009. 258pp. Cloth. $27.00. ISBN: 9780226749396.
Reviewed by Daniel Hoffman, Johnson C. Smith University, retired. Email: guayiya [at] bellsouth.net.
There is a large and growing literature about theories and practices of executive power, stimulated largely by the ambitious claims and actions of recent presidents. These works can be classified, in the first instance, by the extent to which they defend these claims and actions, criticize them, or are ambivalent. Next comes the question of materials and methods: whether the work is primarily an exercise in constitutional law, focused on framers’ intent and/or court decisions; in political theory, focused on concepts like prerogative and rule of law; or policy analysis, focused on the costs and benefits of specific executive actions. Some studies, of course, do more than one of the above.
Peter Shane’s book is a welcome contribution on the antimonarchist side. A professor of law, he begins with reflections on constitutional theory and history, but the bulk of the study brings empirical political science insights to bear on developments since 1980, and especially in the G.W. Bush administration.
Chapter one expounds Madison’s theory of checks and balances as a guard against tyranny. It also introduces the claim that in recent decades, a major assault has been levied against this theory and the associated practices, in the name of presidential powers unchecked by the rule of law. This assault has eroded the traditional culture of self-restraint that generally prevailed within each separate branch. Examples include the Iran-Contra affair, the Clinton impeachment, and BUSH v. GORE. Shane contends that, unlike earlier aberrations, “the impulses behind recent breaches of interbranch accommodation were decidedly undemocratic” (p.13). He relates this to the current composition and agenda of the Republican party, though he does not and cannot claim that Democratic presidents and their supporters are immune to these impulses and ideas.
Chapter two frames the contemporary debate between presidentialist and pluralist understandings of the Constitution. He notes that the debaters’ motives are effectively asymmetrical, because presidents consistently seek to maximize the power of their office, while leaders in the other branches are often motivated to support a president whose policies they agree with, or to pass the buck and avoid blame for policy failure. (They may also, by the way, shrink from weakening an office they hope one day to occupy.) Shane identifies two distinct issues in the debate: the scope of the president’s authority to oversee the implementation of powers Congress has expressly delegated to executive agencies (the “unitary presidency” issue), and [*70] presidential claims to inherent powers in the national security realm that are allegedly beyond congressional control. Shane amply demonstrates the radical nature of the presidentialist arguments on both issues. They take advantage of constitutional vagueness to advance arguments that, to say the least, are not grounded in demonstrable original understandings.
Chapter three reviews the White House decisionmaking processes that prevailed in the Vietnam and Iraq wars. Both episodes were dominated by very small groups that neglected to ask essential questions and rejected dissident viewpoints out of hand. Shane argues that the decisionmaking structures and the prevailing ideologies were resistant to outside influence or accountability and intolerant of internal critical thinking. Advisers said what they believed the President wanted to hear. The result in each case was repeated, serious mistakes of judgment that had grave consequences for the country. These pathologies were manifested under four different presidents -- Kennedy, Johnson, Nixon, and G.W. Bush -- regardless of political party and personal character. Shane concludes that presidentialism promotes bad military decisionmaking, and that more genuine and open debate, promoted by the alternative, pluralist vision of policymaking, is an essential safeguard for our democracy.
Chapter four focuses on the role played by executive branch lawyers in the evolving constitutional claims of recent presidents. Shane, who once worked in the Justice Department Office of Legal Counsel, describes a tradition that once prevailed, in which government lawyers sought and were expected to give impartial advice in the best interests of their client, the American people. Presidentialism, he says, has subverted this tradition, tempting the lawyers to become instead zealous, ethically blinkered advocates for unchecked executive power. He illustrates this by documenting how lawyers in the G.W. Bush administration produced “a series of legal opinions ranging from the dubious to the downright unethical” (p.84) on matters including warrantless electronic surveillance and treatment of enemy combatants. His legal arguments are completely convincing. If anything, he is too generous in his judgment of the perpetrators, declining to examine whether any of them committed crimes.
Chapter five goes beyond these specific legal performances to explore the underlying presidentialist attitude toward the rule of law. Shane characterizes this attitude as formalism, in the sense that it suffices for a president to cite any formal source of law – Constitution, statute, court opinion, or executive branch regulation – as justifying his action, while no one else is entitled to refute the claim. In contrast, Shane elaborates an alternate, institutionalist conception of the rule of law, which depends heavily on informal norms of official self-restraint along with formal legal rules. Thus, for example, “Attorneys General have established an informal norm of deferring to Congress” (p.118), generally defending the constitutionality of statutes in court even when opposing arguments are strong. This norm too runs counter to presidentialist ambitions. Shane elaborates by examining how the executive branch has deployed claims of executive privilege, state secrets privilege and presidential signing [*71] statements. Again, his critique is detailed and convincing. Unfortunately, the book is not recent enough to report on the sorry record of the Obama administration with regard to some of the same and related practices criticized in these central chapters.
Chapter six focuses on the making and implementation of domestic policy. The “unitary executive” theory seeks to minimize congressional power here as well. Drawing on his expertise in public administration and organizational behavior, Shane notes the cross-cutting pressures that administrators feel as they try to satisfy congressional committees, presidents, and agency clients. When Congress delegates to an agency the power to regulate in a certain area, a question may arise as to the respective roles of the agency head and the president – whether or not the agency is technically “independent.” If the president can simply tell an agency head what to do, her problem is greatly simplified – but not in a way that pluralists will favor. As Shane recounts the history, Presidents Nixon, Ford, and Carter sometimes required agencies to consider a certain factor, Reagan centralized White House oversight and veto power over rulemaking, Bush I and Clinton both issued numerous direct mandates to agency heads, and Bush II went beyond this by insisting that all discretionary authority in the executive branch was subject to his direct control. Given the vast scope of such discretion, Shane argues, this unitary executive doctrine effectively elevates the president from chief executive to chief lawmaker. Theory aside, presidents today effectively enjoy very nearly that much power, because of the extent to which the other branches typically defer to their wishes. The reasons for this deference are complex but worrisome. Shane argues at length against the point that a unitary system is more accountable to the people – a point that, by the way, reduces democracy to the outcome of an electoral college vote, in which the winner need not have majority support, or even a plurality of the popular vote. He then elaborates on the costs of ideologically motivated White House interference in the regulatory process.
Chapter seven concludes the book with a lengthy agenda of suggested reforms. Madison’s remedies for the evils of faction are not sufficient: needed today are measures to strengthen interbranch accountability and revitalize pluralist norms and processes. The cure for excessive partisanship, Shane argues, is more democracy, in a messier, pluralist version. Many of his suggested reforms involve changes in behavior rather than new rules, such as in criteria for nominating and confirming executive and judicial appointments, in increased interbranch consultations, in focusing congressional oversight on developing legislation rather than exposing wrongdoing, or in instituting a congressional “question time” for the President. He advocates several steps to increase transparency, by executive order [Several presidents, including Carter and Obama, have done this, to little or no avail] or by statute, including changes to the Freedom of Information Act. The other branches should also take specific steps toward increased transparency. He would replace the War Powers Resolution with a firmer regulation of presidential military actions. The Supreme Court, among other things, should agree to review [*72] challenges to partisan gerrymandering of legislative districts. Shane then turns to a set of additional, democratizing reforms: securing universal suffrage, bypassing the electoral college, curbing corporate political spending [good luck], reducing candidates’ media costs, making broadband available to all, and more.
Shane does not assess the [meager] prospects for adoption of his proposals, nor does he analyze how effective they might be in the context of an imperial foreign policy and an ill-informed, hero-worshipping political culture. Still, this is an impressive book in the scope of questions addressed, the materials–both legal and political science–drawn upon, and the clarity and cogency of its thinking. It would be a valuable enhancement to courses on the presidency, constitutional theory, or public administration.
© Copyright 2011 by the author, Daniel Hoffman.