Checks, Balances Sidelined

In its early months, the Obama administration is posing some puzzles for American progressives. On one hand, America - including the political left - is clearly looking for robust and decisive presidential action to help deal with two wars abroad, an energy crisis, global warming and a series of domestic calamities that have shaken the nation's economy to its roots. On the other, decisions to invoke the state secrets privilege in national security litigation, to withhold photographs of aggressive interrogations from public view and to revamp rather than abandon military commissions have left many wondering whether the current Administration can be counted on to curb the abuses of power that many saw as the hallmark of the Bush-Cheney era.

These contrasting impulses pose obvious questions: How should a President calibrate his ambitions? Is it possible to address national problems with sufficient energy and vigor without making implausible claims of underlying presidential authority? And where do Americans, if they care about checks and balances, exert their political energies to help keep the executive branch within the law?

Madison's Nightmare: Executive Power and the Threat to American Democracy analyzes the separation of powers landscape that President Obama and the country must now navigate in addressing these dilemmas. It both describes and analyzes the theory and practice of "presidentialism" as they unfolded from 1981 to 2009. The book argues that American presidents during this period waged an escalating war on checks and balances. They (and their lawyers) advanced ambitious and unsubstantiated claims of vast unilateral executive authority. They claimed to be largely immune to oversight by Congress and the courts. In a sense, their practices simply extended a trend towards increased executive power, which has existed since the Depression, World War II and the founding of the modern national security state. On the other hand, recent claims to presidential authority - including the genuinely audacious theory of "the unitary executive" - have so clearly accelerated the modern trend as to represent a genuinely distinct and dangerous phenomenon.

Stated in most general terms, the book's two central points are these: First, as a matter of law, the constitutional theories allegedly supporting aggressive presidentialism are without foundation. Second, in practice, aggressive presidentialism fosters bad governance. As an operating ideology of government, presidentialism too easily promotes what turns out to be shallow, defensive, ideologically driven, and sometimes lawless decision making. The George W. Bush administration provided illustrations of these points that almost beggar the imagination, but the point is not partisan. Aggressive presidentialism in the hands of Republicans or Democrats can undermine wise policy-making in war time, subvert the rule of law (especially in national security affairs) and promote a degree of White House control over domestic regulatory policy that actually runs counter to the goals of democratic accountability and sound decision-making.

The lesson for Presidents is that, sometimes, they can improve the performance of their administrations by claiming less power, not more. But the moral for progressives is that no President can be counted on to restore checks and balances unilaterally. It is heartening, of course, and enormously important that President Obama has substituted a full-throated rhetoric of public accountability and of fidelity to the rule of law as an antidote to the Bush administration's rhetoric of presidential prerogative and immunity to regulation. All things being equal, an administration that understands its authority to be at the sufferance of Congress and the American people will likely conduct itself with less arrogance and more attentiveness to the full range of interests affected by government decisions than an administration imbued with a psychology of constitutional entitlement. The President has also made impeccable leadership choices for the Department of Justice, whose counsel will be critical to the rule of law. It will be helpful that President Obama seems to embody the very tendencies in governance that checks and balances were intended to foster - tendencies towards thoughtful, inclusive and deliberative decision-making.

On the other hand, it must be recognized that the health of our constitutional system cannot rest alone on the virtues of any particular President. Democracy must rest on institutions, not just personalities. If real checks and balances are to be restored after the assaults of the last quarter century, then the "checking" institutions - Congress and the courts - must be vigilant, and the executive branch must respect that vigilance. From this point of view, the President's willingness to entertain the prospect of revamping military commissions is actually less worrisome - because such commissions will be subject to judicial review - than the administration's apparent reluctance to embrace an independent inquiry into America's national security practices after September 11.

Madison's Nightmare pursues a number of additional themes, but one of the most important - at this particular juncture in history - is this: From a legal standpoint, the contest between presidentialism and checks and balances is asymmetrical. Even if, as I argue, the Constitution does not demand presidentialism as a matter of law, it still permits Congress and the judiciary to cut the President a wide berth. Presidents, for their part, always have incentives to assert unilateral authority. This will be true for moderate, pragmatic Presidents as well as Presidents more ideologically driven. If progressives want to see the executive respect checks and balances, they must do more than mobilize around the President. They must also pressure Congress, the first branch among equals, to take its constitutional responsibilities and checks and balances seriously.