Waking from Madison's Nightmare

The book I just read is in the running, in my estimation, for
second-best text on how to undo the imperial presidency. (Can't be first,
of course.) It's called "Madison's Nightmare: How Executive Power
Threatens American Democracy," by Peter M. Shane, and it's 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:

"Up until at least 1981, if a federal administrative
lawyer were asked to describe the relationship between the President
and the administrative bureaucracy of the United States, the lawyer
would probably say something like this: The President has powerful
influence over the federal bureaucracy. He appoints the heads of all
agencies (albeit with Senate advice and consent). Under the
administrative laws enacted by Congress, the President can also fire
most agency heads at will -- and he can discharge any of them for good
cause, such as lawbreaking. An agency's failure to attend respectfully
to the President's concerns may elicit punishment in the preparation of
the agency's future budget. And, of course, the President is the
President. By virtue of his office and his personal influence, what he
says always carries great weight.

"But that lawyer would have added a crucial final point: the
President cannot actually order administrative agencies to issue
precise rules and regulations he wants. Agencies can issue rules and
regulations that bind the public insofar as they have legislative
authority from Congress to do so. That authority may leave the agency
with substantial room for exercising its own judgment in how to develop
the very best regulation. In exercising discretion, no sensible agency
will be oblivious to the President's policy agenda. But the decision of
how best to exercise agency judgment remains with the head of the
agency, not the President. That means the president may fire an agency
head if he is disappointed too often, but he cannot insist beforehand
that the agency head follow the President's policy preferences."

If you've been paying attention to how things work in Washington,
this should sound like something from another planet. 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?

Shane's recommendations at the end of the book are generally excellent. Many of them overlap with the ever-evolving list I've been maintaining, but the following were new ideas that I added to that list after reading this book:

Legislate a ban on presidents firing US attorneys at will. Give them
four-year terms and allow their dismissal only for good cause.

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