By William Fisher
Since the Obama Administration now has czars for cars, information technology, bonuses, financial products, et cetera, can a book czar be far behind?
Well, here’s a memo for the inbox of our book czar (or czarina) to-be. It’s about a slender volume that I want our new book czar/czarina to mandate as a “must read’ for every American from middle school to grad school and way beyond.
The book is titled “Madison’s Nightmare: How Executive Power Threatens American Democracy.” Its author is Peter M. Shane, a law professor at Ohio State University.
Understanding why Madison is having nightmares is a tall order for a country where a large majority of citizens is unable to name the three branches of their government. Where we are clueless about separation of powers. And about checks and balances. And where courses we once used to call Civics are now landfill in our academic graveyards.
But if we care about the future of America, we all need to understand what’s been happening to our unique form of government over the past decades.
Peter Shane writes in compelling non-lawyerish commonsense prose about how ambitious assertions of presidential power are the logical outcome of a decades-long trend that started with Ronald Reagan and George H.W. Bush, continued under Bill Clinton, and culminated most spectacularly under the “unitary executive” doctrine embraced by the George W. Bush administration.
What Shane calls “aggressive presidentialism” has seen presidents of both parties waging an assault on the basic checks and balances of the U.S. government that has diminished the role of the other branches of government – all too often with their supine acquiescence -- and led to ideological, inappropriate, and sometimes downright illegal actions.
Prof. Shane tells us why this trend is giving James Madison such nightmares. He writes: “At the heart of our founders’ design for a new republican form of government is a web of political institutions structured to hold each other accountable.” One-branch governmnent holds only one branch accountable – and accountable only to itself.
“Time and time again,” Shane writes, “it has become evident that presidents, left relatively unchecked by dialogue with and accountability to the other two branches, behave disastrously.”
And even those of us who may be historically challenged can see the results of that disastrous behavior in the wreckage that currently litters our constitutional landscape.
“If we want our government to work as the Founders intended, simply electing a new president is not enough: both liberals and conservatives must launch a wide-ranging reform effort that will change all levels of government and support a renewed culture of accountability.”
Prof. Shane finished writing this book before Barack Obama’s first day in the Oval Office. But in a more recent article – “The Ambivalent Presidency? Executive Power Under the Obama Administration” – he tells us where he thinks our new president stands in relation to his predecessors.
He notes that the George W. Bush Administration “had the most ambitious view of executive power in history. Bush sympathizers see little difference in the Obama Administration. Bush’s detractors, in some respects, agree.”
But the truth, he says, is probably closer to the Obama Administration casting aside some of the Bush Administration’s more audacious claims while “still struggling to find a consistent stance with regard to its philosophy of executive power.”
He writes:“Though he campaigned on a theme of change, in his first months in office, Barack Obama has already asserted inherent presidential power in ways reminiscent of his Republican predecessors. While abandoning some of the Bush Administration’s more audacious claims, President Obama has asserted the state secrets privilege in national security litigation, resisted judicial review of enemy combatant detention in Afghanistan, issued signing statements suggesting constitutional reservations about bills he has signed into law, and pursued the Bush Administration’s Status of Forces Agreement with Iraq, even though it was never approved by Congress.”
On the other hand, he notes, “President Obama revoked President Bush’s obnoxious executive order on presidential records, which seemed to invent the idea of vice-presidential privilege from whole cloth and purported to allow family members of former Presidents to claim privilege in their name. He implicitly revoked the Bush Administration’s restrictive view of the Freedom of Information Act, and famously released Bush-era OLC memoranda on torture. The Obama order on military interrogations reasserts the applicability of congressional restrictions to the conduct and conditions of military detention.”
But he also senses Obama’s ambivalence. For example, he writes, “Within his first two weeks in office, President Obama pointedly revoked two Bush Administration executive orders that tightened White House oversight of regulatory policy making by executive branch agencies. In March, however, OMB Director Peter Orszag issued a memorandum reclaiming much of the authority the Obama order seemed to repudiate.”
And On March 9, “President Obama issued a presidential memorandum pledging restraint in the use of so-called signing statements. Within weeks, he issued two such statements of his own.”
But despite these moments of ambivalence, Shane writes, he remains “hopeful that the Obama Administration will turn its back with increasing clarity on the theory and practice of the ‘unitary presidency’.”
If that happens, Madison’s Nightmare – and ours -- may be over.
Let us read!