The Specter of Dictatorship: Judicial Enabling of Presidential Power 9781503628625

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The Specter of Dictatorship

S TA N F O R D S T U D I E S I N L AW A N D P O L I T I C S

Edited by Keith J. Bybee

THE SPECTER OF DIC TATOR SH I P Judicial Enabling of Presidential Power

D AV I D M . D R I E S E N

Stanford U niversity Press Stanford, California

S ta n f or d U n i v e r s i t y P r e s s Stanford, California © 2021 by the Board of Trustees of the Leland Stanford Junior University. All rights reserved. No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying and recording, or in any information storage or retrieval system without the prior written permission of Stanford University Press. Printed in the United States of America on acid-­f ree, archival-­quality paper Library of Congress Cataloging-­in-­Publication Data Names: Driesen, David M., author. Title: The specter of dictatorship : judicial enabling of presidential power / David M. Driesen. Other titles: Stanford studies in law and politics. Description: Stanford, California : Stanford University Press, 2021. | Series: Stanford studies in law and politics | Includes bibliographical references and index. Identifiers: LCCN 2021011349 (print) | LCCN 2021011350 (ebook) | ISBN 9781503611757 (cloth) | ISBN 9781503628618 (paperback) | ISBN 9781503628625 (epub) Subjects: LCSH: Presidents—United States. | Executive power—United States. | United States. Supreme Court. | Separation of powers—United States. | Political questions and judicial power—United States. | Democracy—United States. Classification: LCC KF5053 .D75 2021 (print) | LCC KF5053 (ebook) | DDC 342.73/062—dc23 LC record available at https://lccn.loc.gov/2021011349 LC ebook record available at https://lccn.loc.gov/2021011350 Cover design by Kevin Barrett Kane Typeset by Kevin Barrett Kane in10/14 Minion Pro

CONTENTS

Preface  vii I n t roduc t ion 

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1 Avoiding Tyranny at the Founding

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2 The Rise of Presidential Power

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3 Declining to Adjudicate Claims Against the President

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4 Implied Presidential and Congressional Power

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5 The Specter of Dictatorship: Poland, Hungary, and Turkey

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6 Parallels to America’s Democratic Erosion

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7 Judicial Treatment of Presidential Power in an Age of Democratic Decline

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C onc lusion Notes  177 Bibliography  201 Index  221

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P R E FAC E

This book addresses judicial treatment of presidential power in an age of democratic decline. Many commentators have criticized the Supreme Court’s separation of powers jurisprudence as overly deferential to the President, especially in the overlapping areas of national security and foreign affairs. Some scholars, however, have defended the Court and even urged the Court to expand its support for presidential control of government domestically, arguing for a unitary executive theory that claims that the President enjoys complete control over the executive branch of government. The Court embraced this theory in 2020, but kept in place precedents in great tension with the theory.1 I wrote this book because Donald Trump’s election suggests that the courts and constitutional law scholars need to take the possibility of autocracy more seriously than we have in the recent past. I say recent past, because many of the founders of our country—­those who framed and ratified the Constitution—­were very concerned with the possibility of the republic they tried to establish becoming an autocracy, a country ruled by a despot. Indeed, a major purpose of the Constitution was to avoid a reversion to autocracy when an ambitious leader became President. This book asks whether this purpose has received too little attention in our contemporary separation of powers jurisprudence. While originalists usually support expanded presidential power, I show that originalism supports giving great weight to avoidance of autocracy. The debate about American separation of powers jurisprudence, however, has been too parochial. It has almost always focused on our Constitution’s text, our Supreme Court’s decisions, our political history, our founding fathers’ intent, and our scholars’ ideas. Our founding fathers were less parochial than we are. They had no choice. As the United States did not yet exist, they drew their ideas for avoiding autocracy from the writing of foreign scholars, experience in other countries, and their own experience as subjects of a monarchy.2

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The Specter of Dictatorship suggests that fulfilling the Founders’ goal of establishing a permanent republic requires us to examine the experience of countries that have lost, or nearly lost, democracies in recent years. Accordingly, this book examines the loss or erosion of democracy in Hungary, Poland, and Turkey to see what we might learn about how societies lose democracies, in the hope that these countries’ experience might teach us something about how to keep ours intact. Since this book aims to evaluate the potential of separation of powers jurisprudence (broadly conceived) to protect democracy, it focuses on the institutional history of democracy loss. It primarily evaluates the role of the head of state in democracy decline. But it necessarily considers the roles of the legislature and the courts in advancing or retarding loss of democracy, both to contextualize the analysis of presidential power and to analyze the potential role of judicial decisions on presidential power in checking a drive to autocracy. It draws on the literature providing political explanations for loss of democracy primarily to test the idea that separation of powers jurisprudence may have something to contribute to limiting or slowing democratic decline when powerful political factors drive a country toward autocracy. While Donald Trump’s election motivated this book, my concerns go beyond President Trump. I evaluate the role concerns about potential autocracy should play in separation of powers jurisprudence not only when the threat of autocracy seems quite present, but also when autocracy seems like a fairly distant threat, as it did in the United States until 2016. And I explain how taking the threat of autocracy seriously might change our approach to separation of powers jurisprudence and statutory cases informed by this jurisprudence. The Specter of Dictatorship, then, seeks to implement in a limited way a suggestion animating Tocqueville’s great work, Democracy in America—­that America might learn something from experience with other people’s mistakes.3 Tocqueville, however, saw a predicament for American democracy. If democracy experiences a real crisis, unlike the fake ones created at least every few years through the hysteria around elections, it might not survive it. And if democracy manages to survive its crises, as American democracy has in the past, a society might view these crises as “false alarm[s]” or as proof that democracy “can survive any crisis.” As David Runciman writes in The Confidence Trap, “recovering from your mistakes can make you reckless.” This book seeks instead to use experience abroad to make us wise and even to see connections between our own crises and the possibility of losing democracy that history demonstrates always exists.



Preface

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Tocqueville, however, entertained doubts about whether America’s insularity made it “capable of learning” from other countries’ experience. My concern that this may remain true informs this book as well. In particular, a case for our judges to learn from other countries requires a justification rooted in our own experience. I show not only that we can learn valuable lessons from abroad, but also that our own experience suggests that some of our predecessors had learned these lessons by looking at foreign models available to them. At the conclusion of the Constitutional Convention, Benjamin Franklin was asked whether we have a republic or a monarchy. He famously replied, “A Republic . . . if you can keep it.” When we took our place as a democratic island in a sea of monarchy, keeping a republic was not a foregone conclusion. As autocracy spreads throughout the world,4 the question of how law can help sustain a republic deserves some fresh attention. I owe a great debt of gratitude to many people and institutions who helped me face the daunting task of writing this book. Syracuse University provided a research leave, which allowed me to give this project the sustained attention it required. Harvard Law School offered me an opportunity to work on this book as a Visiting Scholar during the leave. I am also indebted to the library staff at Syracuse University and at the Harvard Law School. Colleagues William C. Banks, Keith Bybee, Jack Goldsmith, Agata Hauser, Laurie Hobart, Aziz Huq, Seth Jolly, Ayse Kadioglu, Piotr Karlik, Ereneus Pawel Karolewski, Tom Keck, Michael Klarman, Dimitry Kochenov, Anthony Levitas, Stephen Levitsky, Michael Mehling, Witold Plowiec, Aziz Rana, Daphna Renan, Kim Lane Scheppele, Isabela and Peter Schiffauer, Rafal Sikorski, Jim Steinberg, Oren Tamir, Cem Tecimer, Valentin Weber, Roman Wieruszewski, Daniel Ziblatt and the participants in the Harvard Visiting Scholars Workshop all helped me in various ways. I also thank my research assistants, Bukre Nur Ayan, Kathryn J. Harrienger, Erika Hooker, and Kylie Mason. I dedicate this book to my children, Kim, Mai, and Mirrah. My hope that they might live their lives in a democracy as I have motivated me to undertake this work.

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The Specter of Dictatorship

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I N T R O D U C T I O N

M a n y w r i t e r s v i e w e d Donald Trump as a Russian-­supported threat to American democracy.1 Others viewed him as an alien force sent here by misguided voters to enact unwise policies. And, of course, many voters saw him as a source of salvation from a corrupt political elite’s failure to address their concerns. While a view of Trump’s presidency as a product of forces outside mainstream political institutions has some merit, presidential power has been growing in this country long before Trump came to power.2 And our nation’s founders anticipated that a President might someday arise who was corrupted by foreign governments or who sought personal power through exciting a mob of supporters. In creating and ratifying the Constitution, the Founders aimed to establish institutions and customs capable of containing a President with “despotic” tendencies, since they understood that such a person was bound to win an election eventually. Accordingly, they gave Congress a substantial role in shaping the executive branch of government and the principal powers necessary to establish domestic policy and to cope with an emergency. Unfortunately, the mechanisms that the Founders created to avoid foreign subversion and mob rule through a despotic executive have eroded. In recent years especially, the Supreme Court has aided and abetted this increase in presidential power through various doctrinal innovations weakening constraints on presidential power, often without giving substantial weight to the possibility 1

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Introduction

that increasing presidential power might, someday, lead to permanent loss of democracy. This erosion has gone so far that we cannot be sure that the Department of Justice can indict and convict a sitting President, even if it obtains solid evidence that he acts as an agent of a foreign power. And Presidents much more committed to the rule of law than President Trump have felt free to exercise a dangerous customary unilateral war power completely at odds with the Constitution’s scheme for preserving democracy. This focus on presidential power and the jurisprudence addressing it hardly exhausts the mechanisms that can erode or help restore democracy. Political factors and political parties, for example, play critical roles. Nor does the Court’s presidential power jurisprudence stand alone as a possible site of judicial influence on democracy’s future. The Supreme Court’s decisions interpreting the First Amendment as licensing unlimited spending to influence elections, limiting voting rights enforcement, and prohibiting the federal courts from policing even the most blatantly partisan political gerrymanders contribute to democratic erosion.3 But the chief executive’s assertion of power plays a key role in unraveling democracy, and therefore presidential power jurisprudence figures prominently among the subjects meriting attention in light of the wave of democratic erosion currently sweeping the globe. Autocrats, after all, establish autocracies. Therefore, this book asks whether we have given too little weight to the Founders’ concern about losing democracy and how the Supreme Court’s jurisprudence on presidential power might change if we took that threat more seriously. From a purely American perspective, concerns about permanently losing democracy can appear far-­fetched.4 We have enjoyed the blessings of democracy for more than two hundred years.5 Presidential power may wax and wane, but surely, we may tell ourselves, the American Republic will not “perish from the Earth.” But relatively few countries have enjoyed democracies during the history of the world.6 And many democracies have died.7 Countries have elected leaders who proceeded, often over a prolonged period, to erode democratic constraints in order to establish an autocracy.8 Accordingly, prudence requires us to ask if the courts should give safeguarding democracy more weight than they have in the recent presidential power case law rather than take our democracy’s survival for granted.9 Globally, President Trump was not the first elected head of state to show authoritarian tendencies. And he may not be the last elected President in the United States who seeks to substitute personal rule for constitutional democracy.



Introduction

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This book argues that the courts should give the concern about democratic loss substantial weight, primarily because a loss of democracy can prove permanent or at least very long lasting. And loss of democracy often leads to a loss of liberty, rampant corruption, and a decline in workers’ ability to make ends meet.10 By contrast, Congress can overturn judicial decisions that stymie needed presidential action in order to minimize the danger of autocracy. Even when Congress fails to timely reverse an important judicial ruling stopping a useful policy initiative, we usually can cope with the consequences of mistakes, even in the area of emergency powers. These arguments build upon Peter Shane’s observation that judicial acquiescence to presidential power grabs creates a one-­way ratchet augmenting presidential power and eroding checks and balances over time and my own book arguing that government must, at a minimum, protect us from systemic risks, like the risk of losing a democracy.11 Avoiding even a seemingly small probability of a catastrophe matters a lot more than the problem of occasional error in overruling Presidents. American debates about separation of powers jurisprudence (and constitutional law more generally) often pit “original intent” at the founding against the idea of a “living constitution” responsive to contemporary circumstances. This book marries these two strands of thought in support of the argument for giving the possibility of autocracy more weight. It provides an account of the founding era focusing on the dominating concern with avoiding tyranny. The Framers sought to create a balance of power preventing tyranny both from the President and from the legislature. In order to avoid the eventual rise of tyranny, the Framers checked presidential control over the executive branch of government, giving Congress a substantial role in appointments and in removal through at least the impeachment mechanism. I argue that in the many grey areas that remain, courts should give weight to the Framers’ clear intent to guard against eventual tyranny. Realizing the Framers’ intent of avoiding tyranny today requires an understanding of how societies lose extant democracies. While many Americans may imagine a sudden military coup as the cause of losing democracy, political scientists and comparative law scholars describe many recent losses of democracy as products of a gradual process of erosion of democratic norms, which they sometimes call “slippage,” eventually producing an irrecoverable loss of democracy.12 The Specter of Dictatorship provides case histories of democracy loss or erosion in Hungary, Poland, and Turkey in order to provide a basis for understanding how countries can lose democracies, supplemented by some mention

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Introduction

of other cases. President Trump openly admires the rulers of these countries and emulated some of their tactics while in office. Furthermore, they provide modern models likely to enjoy future influence. These case studies focus on the role of institutional moves in eroding separation of powers constraints that limit the potential for autocracy. A key lesson emerges from this recent history. The main risk to democracy stems primarily from the head of state. This may seem like a trivial lesson, but often the Supreme Court treats vigorous judicial policing of presidential power as the primary threat to democratic institutions. Although autocrats establish autocracies, they do not subvert democracy on their own. Turkish, Polish, and Hungarian heads of state relied on a powerful political party to secure sufficient support to destroy checks and balances. Because the United States Constitution gives Congress a substantial role in overseeing executive power, the United States President must have loyal backing from an antidemocratic party to subvert democracy. Because of the constraints placed on presidential power in the Constitution, even many autocracy-­fearing antifederalists did not express great concern that the President alone would establish an autocracy in the ratification debates. Rather, many of them sought modification of the Constitution on the ground that a risk of a “cabal” between the President and the Senate could threaten democracy. This book suggests that the antifederalists got it right. The Senate’s power to approve presidential appointees with no loyalty to the law, thwart impeachment, and limit passage of legislation probably makes control of the Senate by loyal backers of an autocratic President an essential prerequisite to presidential success in establishing an autocracy. The fundamental threat stems from an autocratic chief executive who through charisma, bribery, blackmail, corruption, and/or foreign intrigue obtains Senate acquiescence in the destruction of the rule of law. A second lesson emerges from the history of democracy loss. The so-­called unitary executive theory, which maintains that the Constitution gives the President sole control over the executive branch of government, provides a pathway to autocracy. Unitarians—­proponents of the unitary executive theory—­read this right to control the executive branch as including a right to remove executive branch officials from office, even officials who properly carry out their legal duties. They therefore consider independent agencies—­government agencies designed to be independent of political control—­constitutionally illegitimate, at least if they exercise executive power.13 Some of our independent agencies, like other independent agencies around the world, exercise authority vital to



Introduction

5

democracy, such as the authority to regulate elections and the mass media. Unitarians also frown upon the constitutional custom, dating back to the founding, of delegating meaningful authority to other officials in the executive branch, arguing that the President must have the right to control, not just influence, all exercises of executive authority. They also embrace presidential control over federal prosecution, a stance in tension with our history of prosecutorial independence. While scholarly unitary executive proponents usually do not mention the civil service, the theory envisions a system of complete presidential hierarchical control, which seems at odds with the whole concept of the civil service. In the United States and most democracies, civil servants enjoy protection from removal from office, except in cases of failure to properly perform their duties. These protections are seen as important in preserving a stable rule of law somewhat shielded from corrupting political influence. The unitary executive theory suggests that the whole idea of an apolitical civil service might be unconstitutional, although even the theory’s most ardent judicial supporters have, so far, not embraced that conclusion. All of the countries studied and every case of democracy loss I know of established direct or indirect head-­of-­state control over key state bureaucracies in order to create authoritarian government. As a theoretical matter, head-­of-­state control over the executive branch of government constitutes the heart of what an autocracy is. It establishes the basis for subverting the rule of law. Illustrious Supreme Court Justices, such as Louis Brandeis and Joseph Story, explicitly recognized this problem. Even the modern Supreme Court sometimes shows awareness of this, but rarely acts accordingly. This book also explains that our own history of presidential power shows that control over removal of executive branch officials in particular provides means of substituting a rule of charismatic personality for the rule of law and tools for rigging elections so as to keep the President and his party in power in spite of majority opposition. Several Presidents have abused the power of removal toward those ends. The Turkish and Hungarian experiences (along with that of Nazi Germany) teach a third lesson—­unchecked exercise of emergency power can greatly accelerate the establishment of autocracy. The Founders understood this as well, and therefore did not explicitly grant the President any emergency power. In spite of anxiety about having an insufficiently powerful executive to check foreign encroachment (the emergency they were most concerned about), the Founders gave the power to declare war to Congress. Because of our tradition’s unwillingness to risk autocracy by giving the President emergency powers, the courts have

6

Introduction

not taken a deferential attitude toward presidential claims of emergency powers until recently. This book shows that judicial acquiescence in the transfer of the war power from Congress to the President and retreat from its customary active checking of claims of emergency powers creates a dangerous situation. The first chapter focuses on the original intent to guard against “tyranny” by creating a balance of powers. This chapter links the Constitutional structure to specific founding era concerns about monarchy—­the eighteenth-­century equivalent of contemporary autocracy. At the same time, it acknowledges that some of the Constitution’s framers were at least as concerned with legislative tyranny, and divided Congress into two houses and gave the President a veto to guard against it. This chapter also establishes that the Founders created checks on presidential power in order to avoid creation of tyranny. The Framers’ decision to include these checks made it possible to secure ratification of the Constitution, in spite of public anxiety about despotism that might otherwise have led to the Constitution’s rejection. Even the so-­called antifederalists—­those who thought that the Constitution should not be adopted without amendment—­tended to argue against the Constitution based on prescient fears of a “cabal” between the Senate and the President, not expressing anxiety about the President alone in light of the congressional restraints built into the Constitution. It also shows that the Founders, in spite of anxiety about foreign encroachment and recognition of the utility of a strong President in resisting that, declined to give the President explicit authority to address emergencies or to create them by declaring war. This decision also stemmed from the Framers’ anxiety that presidential creation of emergencies or responses to them could lead to autocratic rule. The second chapter focuses on the rise of presidential power since the founding. Chief causes of this growth include the growing complexity of the modern American economy and the emergence of the United States as a global power in the twentieth century, both of which led to Congress delegating vast powers to the President, usually with the courts’ acquiescence. This chapter shows that during the eighteenth and nineteenth centuries, Congress tended to dominate policymaking. Presidents Jackson and Andrew Johnson, however, abused their removal power to wrest policymaking authority from Congress, thereby illustrating the dangers of the unitary executive theory. Congress resisted in a variety of ways, including by establishing Senate control over removal of key executive branch officials, which, according to Alexander Hamilton, formed part of the constitutional design. Abraham Lincoln, while



Introduction

7

recognizing congressional dominance in theory, asserted vast unilateral power to meet the emergency of the Civil War. In spite of some congressional acquiescence to Lincoln’s unilateral responses to the Southern rebellion, the courts took an active role in resisting the idea that the President could unilaterally control emergency powers. The twentieth century witnessed the growth of judicial acceptance of a unilateral presidential removal power, at least for high officials exercising executive (as opposed to quasi-­legislative or quasi-­judicial) power, and growing acceptance of a large presidential role in policymaking. But the Supreme Court stopped short of embracing the unitary executive theory during those years. The end of the first half of the century saw a repeat of developments after the Civil War. The Supreme Court, informed by the experience of Hitler using emergency powers to destroy German democracy, rejected unilateral presidential power to define and respond to emergencies in Youngstown Sheet & Tube Co. v. Sawyer. Its most learned Justices, Frankfurter and Jackson, expressed a fear of democratic erosion in the face of acceptance of unilateral presidential emergency power. Although the office of the President became immensely powerful in the twentieth century, a robust legal framework largely constrained presidential power in the domestic sphere at least through the 1960s. The next two chapters explain how the modern Court has tended to erode the legal framework constraining presidential power. Chapter 3 shows that concern about judicial overreaching led the Court to invent new doctrines and amplify old ones to justify limiting the federal courts’ jurisdiction over cases contesting presidential power grabs. These doctrines include standing (requiring that only parties injured by the challenged action can sue), the political question doctrine (maintaining that some challenges pose only political issues and thus merit dismissal), and ripeness (avoiding premature litigation). The courts have applied the justiciability doctrines selectively, using them aggressively to screen out challenges to presidential power while applying them with much less vigor when litigants allege congressional encroachment on presidential power. Scholars recognize that the courts apply these doctrines inconsistently, but have not shown that the inconsistencies tend to favor the President over Congress.14 This chapter also shows that the idea of the unitary executive catalyzes especially vigorous application of justiciability doctrine to shield claims of presidential abuse of authority from judicial review. Chapter 4 shows that the Court developed a doctrine of presidential implied power, which supports presidential power grabs in part to facilitate adapting the Constitution to the Cold War and, later, the war on terrorism. Conversely,

8

Introduction

it weakened implied powers doctrine in addressing the limits of congressional power, thereby impairing congressional efforts to check increasing presidential power. Scholars recognize that the Court has tended to imply a robust presidential power over foreign affairs and national security. This chapter shows that in addition to this, the Court has used implied power concepts to diminish presidential accountability to the law and rejected congressional claims of implied power to check the President, in keeping with the spirit of the unitary executive theory. Finally, in 2020, the Supreme Court embraced the unitary executive theory, granting the President a constitutional right to fire individual agency heads for political reasons.15 At the same time, the Court did not overrule precedent preserving independent agencies headed by multimember commissions. Thus, the Court has tended to aid expansion of presidential power at home and abroad. The fifth chapter explores the menace of dictatorship, drawing lessons about presidential power from countries that have lost democracies or at least seen significant democratic decline. These case studies of Poland, Hungary, and Turkey show that loss of democracy comes primarily from actions of the head of state, supported by a party eager to do his bidding and entrench him in power. The case studies show that creating centralized control over the executive branch of government by destroying power-­sharing arrangements within the executive branch plays a key role in allowing an autocrat to gain power and keep himself and his party in power. Centralized control over law execution functions as a key procedural mechanism for manipulating prosecution to sideline political opponents, altering election law to empower the autocrat and his party, and exercising sufficient government control over the media to marginalize government critics. Abuse of emergency powers can also accelerate the demise of democracy. In Turkey, the President used emergency powers to accelerate establishment of a democracy-­ending unitary executive just as Adolph Hitler had done. Hungary used emergency powers to have the army construct a wall on its southern border to keep out immigrants, thereby aiding its campaign of stoking dread of immigrants as a source of political support for its autocrat. More recently, Hungary’s prime minister took advantage of the coronavirus pandemic to seize vast emergency powers, thereby probably finishing the job begun ten years earlier of destroying Hungarian democracy. Chapter 6 shows that American democracy has begun to erode and appears at risk, partially because of executive practices centralizing control over administration in the President and the Supreme Court’s endorsement of the unitary executive theory. These practices have weakened the rule of law to a significant



Introduction

9

degree and create a risk of undermining fair elections and an independent media. In particular, President Trump and some of his predecessors sought to assert unilateral control over the executive branch to tilt electoral outcomes, and Trump used his power to begin to use authoritarian tactics associated with Hungary’s and Poland’s autocratic leaders to undermine opposition media. Countries that lost democracy did so in part by taking steps that we have already taken in the United States (at least to some degree), such as putting political appointees not dedicated to the rule of the law at the head of government agencies, attacking civil servants, substituting lockstep party-­line voting for deliberative democracy based on compromise and fact gathering in the legislature, gerrymandering legislative districts, restricting voting to entrench a ruling party, stacking courts with party loyalists, and losing much of the independent press. The analysis shows substantial decline of the rule of law, especially in recent years. Over the long term, deep partisan division (like that prevailing in the United States) makes government incapable of meeting challenges, diminishes trust in government, and therefore may eventually lead to a desperate public providing sufficient public support for an autocrat to allow democracy to decline or perish. The seventh chapter explores how the specter of dictatorship might inform the jurisprudence of presidential power. This chapter claims that the Founders’ original concern about avoiding tyranny should play a larger role in separation of powers jurisprudence than it has in recent years, in light of experience indicating that constitutional democracies can founder under pressure from the head of state. It argues that the systemic risk of losing a democracy permanently should matter more than the risk of delaying or even thwarting a desirable action until the political branches can agree on a course of action. This chapter argues that if the Court erroneously limits a claimed executive power, Congress can usually correct judicial errors. But if the Court approves expansive claims of executive power, this can disable legislative supremacy. Once an autocracy takes hold, the Congress can become powerless. Accordingly, the Court should check presidential power more often and more vigorously than it has in the recent past. This chapter also argues that a proper understanding of national security focuses on preserving democratic sovereignty, not just on stopping physical attacks that happen to come from foreign nationals. Courts’ best opportunities for contributing to autocracy prevention arise before an autocrat takes power. Even then, political science suggests that political parties play a more important role in preserving democracy than courts. Nevertheless, the courts have something to contribute both in laying a foundation

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Introduction

for preserving democracy during relatively untroubled times and in pushing back as an elected leader takes steps toward establishing autocracy. This chapter examines the role courts have played in contributing to a political dynamic resisting autocracy, drawing on experience in other countries and in the United States to examine the potential contribution and its limits. This final chapter then explores some of the specific implications of giving the specter of dictatorship greater emphasis. The lessons from the case studies suggest the need to repudiate the unitary executive theory or at least limit its reach and to employ meaningful judicial review of claims of presidential abuse of power, especially in response to claims of emergency power. The case studies imply that sole presidential control over the executive branch paves the way for autocracy. The U.S. Supreme Court’s recent endorsement of the unitary executive theory could empower the President to control the political decisions of the executive branch of government by weakening the influence of the career civil servants and independent agencies. An understanding of the role establishment of a unitary executive plays in destroying the rule of law should matter in how the Court responds to efforts to advance the theory in future cases. The courts should strengthen judicial oversight of presidential exercises of power by recognizing that the Constitution requires arbitrary and capricious review of presidential actions. This enhanced oversight should apply to judicial review of uses of emergency powers and other measures relying on national security justifications. The Court should take the utility of using national security concerns to justify steps toward autocracy into account in how it approaches such cases. The chapter contains some specific recommendations for how the Court can check abuses of emergency power without significantly impeding presidential flexibility to protect the nation in an emergency. A brief conclusion caps the exposition.

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AV O I D I N G T Y R A N N Y AT T H E F O U N D I N G

T h e pe opl e w ho cr e at e d the American Republic did so in part to avoid submitting to tyranny. This means that keeping faith with the people who adopted the U.S. Constitution today requires the courts to interpret it to avoid establishing the preconditions for autocracy—­the tyranny of our day. The conservative legal movement, usually traced to the Reagan Department of Justice (DOJ), especially under Attorney General Meese, heavily promoted the idea that a focus on original intent provides a single answer to fine-­grained constitutional questions independent of the views of judges interpreting the Constitution.1 And it likewise promoted the idea that original intent unequivocally demonstrates a founding era commitment to strong presidential power. This view has proven influential. Many judges and originalist legal scholars now believe that there is only one way to understand presidential power. They evince faith in the “unitary executive theory,” which maintains that the President enjoys complete control over the executive branch of government through a rigid hierarchy. And they claim a founding era commitment to a vast array of presidential foreign affairs authorities. Many scholars, however, find a founding era commitment to more limited presidential power than this view suggests.2 I do not plan to resolve this debate about the original intent respecting presidential power here. The account of the founding of America’s constitutional democracy below only aims to establish that not all of the evidence is on one side of the debate.3 11

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Chapter 1

Original intent, however, clearly and uncontroversially reveals some core features of our constitutional democracy. All of the sources that originalists rely on show that the Founders—­the Ratifiers and Framers—­established the American Republic in part to avoid autocracy. This goal therefore must influence interpretation of the Constitution.4 The materials that follow emphasize tyranny emanating from the head of state, both because concern about a reversion to monarchy played a large role in our constitutional history and because this book will later argue that contemporary experience makes the old concern about autocracy vital. At the same time, some of the Constitution’s framers were at least as concerned about the possibility of mob rule—­a tyranny of the legislature if you will.5 The Constitution addresses both concerns by coupling separation of powers with checks and balances to avoid concentrations of power in either the legislative or executive branches of government. Before reviewing the founding era history demonstrating the aversion to tyranny, a few words about the concept of original intent will set the stage.

Original Intent Judges regularly consider original intent (or original meaning) in interpreting the Constitution. Proponents of original intent often say that judges should interpret the Constitution in light of its text and the intentions of the people who ratified it—­i.e., the citizens of the several states who met in conventions to ratify the Constitution.6 Judges, however, more often refer to the intentions of the Framers—­the people who created the Constitution that the People adopted. The Framers’ intent constitutes some evidence of what the people who adopted it—­the Ratifiers—­might have thought it meant. This is especially true of the Framers’ intent expressed in the Federalist Papers, because the authors of these materials publicly disseminated them to explain the Constitution to some of the people considering its ratification and convince them to adopt it.7 By contrast, the Framers’ post-­ratification statements provide less reliable indications of the Ratifiers’ intent, as they may reflect the Framers’ subsequent views, rather than the views of “We the People” who adopted the Constitution and gave it binding force. The notion that original intent properly informs constitutional interpretation excites little controversy. Most scholars, however, think that those who identify themselves as originalists often place more weight on original intent than it can bear.8 The Constitution’s text and the Framers’ statements are usually quite general and often do not provide definitive guidance to specific issues coming before the courts hundreds of years later. Furthermore, some of the Framers expressed support for a living Constitution that adapts to future needs and suggested that



Avoiding Tyranny at the Founding

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their intentions should not guide future interpretation.9 Thus, original intent may, ironically, require taking contemporary needs into account. Historians also doubt the existence of consensus on points not explicitly mentioned in the Constitution, as the Framers barely managed to agree on a Constitution at all and its ratification proved controversial.10 Scholars have recently pointed out that originalists have a variety of approaches to assessing original intent, that the choice of approach can influence results, and that prominent originalists sometimes depart from the approach they espouse in particular cases.11 Early originalists relied heavily on the Framers’ statements as evidence of original intent, with others stating that the Ratifiers’ intent should govern. While these approaches still play a role in some cases, modern originalists often place much more emphasis on the “public meaning” of constitutional text, with a variety of approaches to figuring out what that might be.

Tyranny Before the Founding The goal of overthrowing tyranny animated the revolution that established the independence of the United States, although it does not constitute the revolution’s sole cause. The Declaration of Independence accuses the King of England of establishing “an absolute tyranny” over the American States. It catalogues a “long train of abuses” designed, it states, to establish “absolute Despotism.” Most importantly for this book, the Declaration complains of arbitrary conduct of executive branch officials and invasion of liberties. It accuses the monarchy of persecuting its enemies and protecting its friends in the American colonies, a characteristic of autocrats that emerges as an important point from this book’s case studies. It states that the King protects his own officers from punishment for murders committed in the colonies. At the same time, it accuses the tyrant of depriving colonists of trial by jury and even sending them “beyond Seas to be tried for pretended offenses.” The Declaration also complains of corruption, accusing the King of sending “swarms of Officers to harass our people, and eat out their substance.” Many of the catalogued abuses involve the failure to approve needed laws and interference with elected legislative assemblies in the colonies. The Declaration speaks of the King dissolving legislatures, failing to approve needed laws, and requiring legislative bodies to meet in distant inconvenient places so as to “fatigue them into compliance with his measures.” The Declaration also cites interference with judicial independence by making judges dependent on the King for their salaries and terms of office. The Declaration protests military oppression. It charges the King with establishing military dominance, quartering troops in the colonies, and sending

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“foreign Mercenaries to complete the works of death.” It damns the King for plundering the seas, burning towns, and destroying people’s lives. This does not mean that each abuse leading to revolution came from the King. The colonists objected to Parliamentary taxation without representation and much else. But a major theme of the revolution permeating the Declaration involves rebellion against autocracy. The Declaration most famously establishes the foundation for our understanding of democracy. That understanding involves government respect for certain inalienable rights, among them “Life, Liberty, and the pursuit of Happiness.” The document insists that men secure these rights by establishing governments with the “consent of the governed.” We now identify democracy with the regular free and fair elections that the state constitutions and later the federal constitution relied on to establish government accountable to the People. The Declaration of Independence’s complaints also imply a concept of democracy based on a rule of law, where the head of state implements legislation passed by representative assemblies rather than acts arbitrarily. Thus, when this book speaks of preserving democracy, it means free and fair elections, a rule of law, and protection for fundamental rights, such as that of Free Speech and Assembly. While we can trace the origins of this idea of democracy to the founding period, this concept of democracy has since become widespread.

The Constitution and the President After the War of Independence, the Framers met in Philadelphia to draft a constitution for a new national republic. They did so because of the need to establish a strong national government capable of bringing together the states and defending the United States against foreign encroachment. Hence, the Framers aimed to make the government more powerful than it had been under the Articles of Confederation, the agreement among the states to cooperate in prosecuting the war.12 At the same time, many of the Framers wished to avoid a return to monarchy and all of them realized that creating a strong head of state might doom the entire constitutional project, owing to the fear of “despotism” that gave rise to the revolution. Many of them though wanted a strong executive and expressed concern about the legislature as a potential source of despotism. T H E R U L E O F L AW

The Founders therefore crafted a constitution that would substitute a rule of law for the rule of arbitrary executive authority many Americans saw in King George. The rule of law established in the Constitution imposes duties not just



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on citizens, but on all public officials, including the President. The duty of the President and other executive branch officials to obey the Constitution and the laws Congress establishes differentiate a “rule of law” from the arbitrary authority identified with King George. The Constitution’s second article grants the President the “executive power” and creates a presidential duty to “take care that the laws be faithfully executed.” The laws that the President must faithfully seek to have executed would come from Congress. Article I, section 8 of the Constitution grants Congress a vast array of lawmaking authority, including the power to regulate interstate commerce and to tax and spend. Nor did the Framers strictly limit Congress to the powers expressly mentioned in the Constitution. Instead, the Constitution authorizes laws “necessary and proper” to the execution of the listed powers. Early in our history, opponents of the first national bank argued that Congress lacked the power to establish such an institution, because it was not essential to carrying out the powers enumerated in the Constitution. In McCulloch v. Maryland, the Supreme Court upheld the law creating the national bank, recognized that the Necessary and Proper Clause creates implied powers, and interpreted those powers broadly to enable Congress to set key policies for the new Republic. It held that the nature of the Constitution and the need for it to adapt to the “crises in human affairs” justified generally allowing Congress to select any means it wished toward achieving legitimate ends within the spirit and letter of the Constitution. The Founders expected laws passed by Congress to guide presidential law execution. Although the Founders understood that executing law requires some discretion, they did not envision a President acting according to the preferences of a single political party.13 Indeed, they sought to avoid creation of political parties altogether (faction, in the language of the time). They envisioned a disinterested leadership model, seeing the public interest as a single thing that all people of discernment would agree upon.14 C H E C K I NG PR E SI DE N T IA L P OW E R TO AV O I D C H A R G E S O F M O N A R C H I S M

In spite of the imperative need to establish a strong national government, fear of tyranny loomed so large at the founding that some delegates to the Philadelphia convention favored placing a council of several people at the head of the executive branch of the new government, as many of the state governments had.15 Ultimately, the Founders rejected this idea of a plural executive in favor of a unitary executive—­a government headed by a single elected President.

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The Framers’ statements suggest that they chose the unitary model primarily out of fear of paralysis, especially during time of war. The leading quasi-­ monarchist among the Framers, Alexander Hamilton, spoke of the need for energy and dispatch. At the same time, Hamilton claimed that having a single executive would help ensure accountability and responsibility.16 The Framers did not leave this accountability and responsibility to the mercies of the office’s occupants, partly because they anticipated that a foreign government might succeed in getting its candidate elected President. Alexander Hamilton insisted that the Constitution contained “every practicable obstacle” to “cabal, intrigue, and corruption” because a foreign power might try to “rais[e] a creature of their own to the chief magistracy of the Union.”17 Hamilton thought that the multiple “precautions” in the Constitution provided “security against this mischief.” In order to induce Presidents to comply with their constitutional duty of faithfulness to congressional policy, the Constitution requires each President to swear an oath to “faithfully execute the Office of the President” and to “preserve, protect, and defend the Constitution of the United States” to the best of his ability. This oath reinforces the Take Care Clause by obligating the President to carry out the laws passed by Congress and to defend individual rights listed in the Constitution’s bill of rights. The Constitution also requires all other executive branch officials (and other federal and state officials) to swear an oath to “support the Constitution.” This General Oath Clause reflects a deliberate decision to reject a key element of the heritage of monarchy. In Europe, it had usually been customary for officials to swear allegiance to the King. But the Constitution omits an oath of allegiance to the head of state in favor of an oath of allegiance to the rule of law. Still, the Framers did not rely on the presidential oath and a sense of duty alone to make the President a faithful servant of the law. They employed outside checks on presidential power toward that end as well. The creation of checks on presidential power reflects a compromise. Alexander Hamilton considered constitutional monarchy the best form of government in the world and sought to establish a close approximation of that for the government of the United States.18 To that end, he proposed having a single elected President, which would make the President a much stronger head of state than any of the Governors in the States. Hamilton and others also proposed that this President have the power to appoint government officials in the executive branch



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to serve “during pleasure,” meaning that the President would have the power to remove them at will.19 While some Framers supported these proposals, others thought them incompatible with the idea of republican government. Furthermore, the strong republican and anti-­monarchist sentiment among the People made it unlikely that a Constitution giving a single leader too much power could obtain ratification. The compromise that the Convention adopted rejected Hamilton’s proposal to give the President sole control over appointment of executive officers but placed a single elected President at the head of the government. The Constitution allows the President to nominate “officers of the United States,” such as cabinet members. But it does not allow presidential nominees to take office unless the Senate approves the nomination. And it authorizes denying the President any role in appointing inferior officers, by allowing Congress to vest their appointment in the independent judiciary. But the Constitution also authorizes Congress to vest the power to appoint inferior officers in department heads or the President himself, thereby allowing Congress to increase the presidential role if it wishes. This flexibility allows the Congress to choose the location of the appointment power to ensure the selection of “inferior officers” faithful to the laws it passes. The authority to vest appointment of inferior officers in the judiciary brings into question the notion that the Constitution establishes complete presidential hierarchical control over the executive branch of the government. The Constitution explicitly provides one means for removing federal officials—­impeachment. This made the question of whether the Constitution authorizes the President to unilaterally remove an executive officer who has not committed an impeachable offense an issue that the Framers discussed from early on.20 The Framers viewed a congressional role in selection and removal of officers (through impeachment) as a way of providing a check on a President seeking to establish a new monarchy. And they understood that the People might reject a Constitution that provided for too powerful a presidency, so fearful were the People of “despotism.”21 Alexander Hamilton viewed the Senate role in appointments as a safeguard against “incautious or corrupt” presidential nominations. He assured the people considering ratification that the Senate’s role in appointments would prevent people too easily controllable by the President from assuming office. As Hamilton put it, the Senate’s advice and consent role discourages the President from nominating candidates “personally allied to him, or . . . possessing

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the necessary insignificance and pliancy to render them obsequious instruments of his pleasure.”22 Because the Constitution removed “the most insidious and powerful weapon of eighteenth century despotism”23 from the presidential arsenal­—t­ he appointment power—­and included the requirement of Senate approval of treaties, Tench Coxe argued that “from such a servant” as the American President, “with powers so limited and transitory, there can be no danger” like that presented by the British monarch.24 Similarly, Hamilton explained that the Constitution provides for “stability of the administration” because the “Senate’s approval would be required in order to remove an executive officer.”25 It is not entirely clear whether his insistence that the President lacks the power to remove federal officials unilaterally relies on the exclusivity of the Constitution’s Removal Clause, which authorizes Senate removal of officials after impeachment by the House, or the principle that the power of removal goes with the power of appointment (i.e., with the Senate). But Hamilton defended denial of presidential control over executive branch officials as promoting a stable rule of law, rather than a rule of presidential personality: A change of the Chief Magistrate, therefore, would not occasion so violent or so general a revolution in the officers of the government as might be expected if he were the sole disposer of offices. Where a man in any station had given satisfactory evidence of his fitness for it, a new President would be restrained from attempting a change in favor of a person more agreeable to him by the apprehension that a discountenance of the Senate might frustrate the attempt and bring some degree of discredit upon himself.26

In keeping with the Constitution’s adoption of at least some checks on presidential control over the executive branch of government, Hamilton, in the debate on New York’s ratification of the Constitution, referred to the Constitution’s “proper balance to the different branches of administration.”27 Hamilton, however, did not ascribe this “balance” to a pure system of separated powers, but rather to the inclusion of “all of the checks which the greatest politicians and the best writers have ever conceived,” rendering the structure of government so “complex” and “skillfully contrived” that carrying out a “wicked measure” would prove “next to impossible.” Instead of giving all of the executive power to the “executive magistrate,” Hamilton wrote, the “executive power is divided between two branches,” meaning between the President and the Congress.28 Other commentators at the founding rejected the characterization of the Senate’s role as



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exercising executive power, but recognized that it had a role in checking presidential appointments and abuse of power by the President or other government officials. The People considering ratifying the Constitution in state conventions understood that the Senate possessed significant authority over the executive branch under the Constitution, and some of them criticized this departure from a pure version of separation of powers while others criticized the Constitution for not creating an executive council to further restrain the President. The Constitution also gives Congress as a whole significant authority over the executive branch, authorizing it to pass “All laws Necessary and Proper for carrying into Execution all Powers Vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”29 This “Horizontal Sweeping Clause” means that Congress may enact legislation governing the executive branch, for example, by determining what executive branch departments and offices will exist. The combination of the grant of executive power to the President and the duty to “take care that the laws be faithfully executed” to the President, however, led some scholars and judges, most prominently the late Justice Antonin Scalia, to endorse the unitary executive theory. After all, they reason, how can the President faithfully execute the law and exercise executive power, if he cannot hire and fire executive branch employees?30 While this reading of these two clauses appears fairly natural, it is not the only possible reading of the Take Care and Vesting Clauses. In coupling a unitary executive with a lack of complete presidential control over appointments, the Framers followed the example of the New York Constitution, which vested the executive power in a single Governor with the duty to Take Care that the Laws be Faithfully Executed. But the New York Constitution granted its Governor no unilateral authority to appoint or remove executive branch officials, instead placing the power to appoint and remove executive branch officials in a council.31 Thus, the Vesting and Take Care Clauses can be read as compatible with a system where a President has no authority to remove executive branch officials without consent of some other body. Scholars who doubt that the Constitution gives the President sole control over the executive branch of government find that idea incompatible with the Oath Clauses, the Appointments Clause, the Removal Clause, and the Horizontal Sweeping Clause. Advocates of strong presidential power read these clauses as limited exceptions to a general rule of absolute presidential control over the executive branch.

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Unitarians also advance a structural argument to support the unitary executive theory. They claim that congressional control over legislation and the vesting of judicial power in the courts under Article III support complete presidential control over the executive branch of government.32 This structural argument emphasizes separation of powers at the expense of checks and balances. But the Constitution’s text shows that the claim that each branch of government enjoys sole control over functions within its domain is at least contestable.33 We have already seen that the Constitution gives Congress a measure of control over the executive branch of government through its legislative authority and through the Senate role in appointments and removals. The text, in fact, casts doubt on the notion that the Constitution gives any branch of government sole control over its functions. The Constitution gives the President legislative power, by authorizing a veto. While the Framers expressed concern about the potential for the President becoming a tyrant, they also evinced worry about irrational popular passions. They sought to avoid mob rule by dividing the legislature, making a Senate consisting of statewide representatives chosen by state legislatures a check upon the popularly elected House of Representatives. And they granted the President the power to veto improvident legislation. But they allowed the national legislature to override a veto with a two-­thirds majority in both houses. The Constitution also gives Congress a huge role in the exercise of judicial power. The Senate must confirm judicial appointments and may remove judges through impeachment if they commit “high crimes” or “misdemeanors.” The Constitution establishes only the Supreme Court, giving Congress the right to decide what, if any, lower courts will exist. And it gives Congress substantial control over the courts’ jurisdiction. Thus, the idea that the constitutional text, its structure, and pre-­enactment history support complete presidential control over the executive branch of government proves at least contestable. EMERGENCY POWERS

Although the Framers sought energetic law execution in the President in part out of concern for foreign encroachment, they did not give him express emergency powers, even though emergency power had been part of the executive power conception of John Locke and the legacy of the Roman Empire, which the Framers studied.34 An enemy attack had constituted the primary emergency justifying emergency powers since Roman times, but the Framers gave the authority to declare war to Congress, pointedly rejecting giving the President a



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traditional executive prerogative associated with monarchy.35 The assignment of the war power to Congress received support even from strong proponents of presidential power in the Constitutional Convention, such as James Wilson.36 The Framers almost universally considered bestowing a general war power on the President as conducive to creating an autocracy.37 As Alexander Hamilton explained in the Federalist Papers, “It is the nature of war to increase the executive at the expense of the legislative authority.”38 Furthermore, war “will compel nations . . . to resort for . . . security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of becoming less free.”39 Article I also authorizes Congress to “provide for the common defense,” deploy irregular forces against an enemy, establish rules for captured persons and property, and “define and punish” crimes committed on the high seas and “Offences against the Law of Nations.” Furthermore, it authorizes Congress to raise, support, and make rules for the armed forces. The Constitution, however, makes the President the Commander in Chief of the armed forces. And proponents of executive power tend to read the Commander-­in-­Chief Clause in broad terms. A second common type of emergency involves an insurrection. Article I, section 8 grants Congress power to “provide for calling forth . . . organizing, arming, and disciplining, the Militia” in order to “execute the Laws . . . [and] suppress insurrection and repel Invasions.” It also authorizes Congress to establish the punishment for treason. But the Constitution makes the President the Commander in Chief of the militia, the instrument of suppressing insurrection and rebellion.40 The Framers also placed the authority to “suspend” the writ of habeas corpus in an emergency in Article I, which lists congressional powers. During normal times, a citizen imprisoned by the government can use this “Great Writ” to get a judge to determine whether his imprisonment is lawful. But emergencies may require limiting this right so that the executive branch or the military can maintain order. The Constitution suggests that the body imprisoning people cannot decide whether the imprisoned have the right to get a hearing before a judge. Thus, the Framers took most of the emergency powers assumed by monarchs in Europe and placed them in Congress. Article I grants to Congress other foreign affairs powers that had been prerogatives of the King of England, such as the ability to approve treaties (the primary engine of foreign policy at the time) and to establish rules for naturalization.41

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The Constitution also grants Congress the power to regulate foreign commerce and commerce with Indian tribes. The Constitution, however, empowers the President to negotiate treaties and receive ambassadors. Thus, the Framers sought to avoid tyranny by dividing power even over foreign policy.42 In any case, Hamilton’s assurances that the Senate’s powers would prevent the President from establishing an autocracy worked. In spite of deep concerns about a President becoming an autocrat, the People ratified a Constitution containing a controversial proposal to allow for a single head of state. Joseph Story, a famous Supreme Court Justice in the early Republic, maintained that the Federalist doctrine that the Senate has a right to participate in removal of executive branch officials “quiet[ed] the just alarms of the overwhelming influence and arbitrary exercise” of executive power, “which might prove fatal to” public officers’ “personal independence . . . , as well as to the public liberties of the country.”43 Even many of those who expressed misgivings about approving the Constitution without amendments—­the antifederalists—­seemed persuaded that the President alone no longer posed a danger by himself in light of the checks and balances in the Constitution. Instead, many of them expressed a fear that a “cabal” between the President and the Senate (which they viewed as aristocratic) could threaten the Republic.44 Elbridge Gerry worried that the tight relationship between the “chief magistrate” and the Senate would give the President “undue influence over the legislature.”45 Thus, the Founders approved the Constitution in part because the combination of an energetic single President likely to strengthen the nation, the denial of royal prerogatives such as the war power, and a congressional role in checking the executive branch of government promised a rule of law rather than a return to autocracy.46 Some originalists, however, read the term “executive power” as necessarily encompassing a broad array of foreign affairs powers by positing a shared understanding at the founding of executive power based on the writings of Locke, Blackstone, and Montesquieu.47 They thus derive the public meaning of the term “executive power” from writings known to the Framers, rather than from the statements of those ratifying the Constitution. Curtis Bradley, Martin Flaherty, and Julian Davis Mortenson, however, have argued that this executive powers “essentialism” defies history.48 Dictionaries of the period, the founding era debates, and the writings the Founders relied upon defined executive power as simply the power to carry out the laws that the legislature enacts. They claim that the writers of the period used a different



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term—­the term “prerogative”—­to refer to the Monarch’s foreign affairs power and that law often governed even that power. Thus, the claim that the “public meaning” of the term “executive power” embraces an array of powers going beyond mere law execution turns out to be at least contestable. Questions of presidential power have both a horizontal and a vertical dimension. Horizontal questions revolve around relationships between congressional and presidential power. Vertical questions implicate the relationship between the President and the rest of the executive branch. The unitary executive theory constitutes a theory about vertical separation of powers. The theory that the President has a vast unilateral foreign affairs power exemplifies a theory about horizontal separation of powers, as does the theory that the Constitution generally puts Congress in charge of foreign affairs. In principle, one could believe in a unitary executive and a President of very limited independent authority.49 For example, if the executive authority only involves execution of specific statutes passed by Congress, the President may still have sole control over the executive branch of government. But in practice, most proponents of the (vertical) unitary executive theory envision a President having significant unilateral (horizontal) authority. And its opponents tend to endorse a more modest version of presidential authority across both the horizontal and vertical dimensions. Unitarians tend to rely more on post-­enactment history than on pre-­ enactment history, even though many of them claim that pre-­enactment history should get greater weight.50 The first Congress, which contained many of the Founders and therefore might provide some evidence of original intent, directed the Departments of War, the Navy, and Foreign Affairs to follow the President’s directions, providing support for the unitary executive theory. But the same Congress gave a measure of independence to the Secretary of the Treasury and the Postmaster General, thereby undercutting the theory.51 In establishing the new government’s executive departments in 1789, the House and Senate debated who should have authority to remove executive officers. We have a record only of the House debate, and it reflects more diverse views on this question than the pre-­ratification materials. Some House members argued that impeachment was the exclusive means for removing officers. Others did not read the Impeachment Clause as exclusive but thought Senate approval a required element of removal (probably as an inference from the Senate’s role in appointment).52 Some thought that Congress could locate the removal authority wherever it thought appropriate. Others supported the unitarian position,

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claiming that the President must have removal authority. (James Madison moved to the unitarian position during the debate).53 The House rejected language that would have unequivocally granted the President removal authority and passed a quite enigmatic bill by a narrow margin. The Senate split 10-­10 on this bill, and Vice President John Adams allowed it to pass by casting the tiebreaker in favor of the legislation. The strongest claim that unitarians make these days is that the majority of the House supported a presidential removal right.54 That claim has been contested.55 And nobody claims that half of the Senators and the House minority that voted against a removal authority even in the area of foreign affairs supported the unitary executive theory. Thus, the post-­ratification history does not provide evidence of a consensus supporting the unitary executive theory.56 But a consensus continued to exist on a higher level of generality. All involved wanted to avoid tyranny. They all believed that the goal here involved establishing a rule of law by avoiding excessive concentrations of power in either the legislative or executive branches of government.

Intent to Prevent Tyranny as a Basis for Broadly Acceptable Originalism While constitutional scholarship frequently juxtaposes originalism and living constitutionalism, no judge wholly ignores either original intent or contemporary circumstances.57 Constitutional law necessarily requires a mixture, partly because original intent provides no guidance about some issues and uncertain guidance about many more issues. Originalism can provide uncontroversial guidance at a high degree of generality even when it fails to provide uncontestable answers to many fine-­grained questions. So-­called “new originalists” generally recognize this.58 The impossibility of the Founders foreseeing and resolving all future constitutional issues helps explain why even Justice Scalia, an ardent originalist, felt constrained to say, “I’m an originalist, but I’m not a nut.”59 A good example of a very specific issue about which originalism provides almost no direct guidance involves questions about the constitutional status of various executive branch officials. The Constitution specifies that the President must nominate and the Senate must approve the appointment of the principal “officers of the United States.” On the other hand, it allows Congress to locate the appointment of “inferior officers” elsewhere­—in the judiciary, the head of a department, or the President. But the Constitution does not define “inferior officers,” and the



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Framers did not discuss the distinction between principal and inferior officers. This issue of how to classify officials arose in Morrison v. Olson, which addressed the constitutionality of a congressional decision to delegate the appointment of an independent counsel tasked with investigating high-­level executive branch wrongdoing to the judiciary. The Court characterized the independent counsel as an inferior officer, because of the narrowness of her responsibilities. But Justice Scalia dissented, stating that the independent counsel did not constitute an inferior officer, because the statute did not make her subordinate to some other government official. Scalia’s reasoning would likely allow an autocratic President to escape federal investigation, even if he committed treason, because it would only allow appointment of an “independent” counsel if the President nominated one for Senate advice and consent. Neither the majority nor the dissent appear terribly convincing, as they both make good points but provide no basis for choosing between independence and breadth of responsibility as the crucial determinant of the independent counsel’s status. Certainly, originalism provides no direct evidence bearing on such a fine-­grained choice, as we have no debates about what this distinction should mean from the founding period. But one can take into account original intent that is so clear that is utterly uncontroversial in making this choice. Specifically, one can consider the founding era consensus that we wish to avoid tyranny. That concern might point toward allowing Congress to provide for an independent counsel and leave the crafting of mechanisms to constrain possible abuses not amounting to violations of constitutional rights to Congress. Congress did become concerned about abuses of the special counsel statute after its use against President Clinton for sexual misconduct and let it lapse. Later chapters show that the Supreme Court has at times considered the Founders’ wish to avoid tyranny, mostly in response to presidential claims of emergency authority. Chapter 7 discusses how the Court can take the founding era consensus about the need to avoid autocracy into account today. Indeed, even if one believes that the Framers’ original intent supports a particular resolution of an issue, one cannot ignore the Founders’ (Ratifiers and Framers) original intent to avoid autocracy. If the two conflict, courts should give primacy to the intent to avoid autocracy, as that was not just an arrangement that the Founders barely agreed upon, but one of the most widely agreed upon objects of the entire process of creating a Constitution, including its ratification. But if originalism teaches us that we should interpret the Constitution to avoid creation of tyranny, we must have a way of determining when cases

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implicate potential tyranny and what sorts of constitutional moves avoid tyranny. To do that, we have to examine the histories of countries that have lost (or largely lost) democracies and moved to autocracy. The notion that we have to pay attention to recent history and contemporary circumstances to implement original intent properly should not be surprising. After all, Justice Marshall (one of the Founders) taught us long ago (in the McCulloch opinion) that the Constitution is intended to endure for ages and to adapt to “the potential crises of human affairs.”60 It can hardly do so if we do not reflect on relevant experience as we pursue goals that played a central role at the founding.

2

THE RISE OF PRESIDENTIAL POWER

C ongress tended to d ominate the government during the eighteenth and nineteenth centuries, but some Presidents found the inherited constitutional order too constraining and challenged it through abuse of removal authority to subvert legislative control and use of emergency powers potentially inimical to liberty. President Andrew Jackson vigorously asserted a presidential authority to supersede congressional policy on the national bank, incurring a censure. After the Civil War, President Andrew Johnson sought to establish a reconstruction policy at odds with congressional policy, and suffered impeachment (but not removal) as a result. President Lincoln found it necessary to exceed what he viewed as the normal constitutional constraints on the presidency in order to respond to an emergency, the onset of the Civil War. But after each episode of presidential challenges to the rule of law, the courts and Congress restored the constitutional order’s heavy reliance on faithful implementation of legislation as a touchstone of the constitutional order, often with the President’s acquiescence. During the twentieth century, however, presidential power grew enormously and continuously, especially after World War II. Congress delegated vast authority to the executive branch to address increasingly complex problems stemming from economic modernization and the emergence of the United States as a world power. Furthermore, after World War II Presidents with increasing frequency asserted unilateral authority to combat not just imminent emergencies, but potential emergencies embedded in the concept of national security. 27

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The treatment of the rise of presidential power below emphasizes information important to understanding the unitary executive theory and the utility of presidential removal for resisting the rule of law and tilting elections. Furthermore, it covers the role restrictions on removal played in helping secure competent and honest administration of the law and in keeping the rule of law intact when challenged. It also emphasizes the contrast between congressional control over emergency power early on with increasing presidential power to address real and potential emergencies in the twentieth century. Finally, it highlights the Supreme Court’s willingness to consider the potential of authoritarianism and even democracy loss abroad when confronted with alleged presidential abuse of power prior to the late twentieth century.

The Era of Congressional Dominance L AW E X E C U T I O N

The constitutional norm of Congressional policymaking was so well entrenched in the early Republic that Presidents before Andrew Jackson rarely exercised the legislative authority that they possessed—­the power of the veto.1 While one can find vetoes of bills in the field of foreign relations, the constitutional custom at the founding usually reserved vetoes of domestic legislation for unconstitutional legislation.2 The executive contributed to policy primarily by making policy proposals to Congress. Alexander Hamilton’s program of banking and fiscal improvement constitutes the first major example. Even though the President exercised executive power from the beginning, Congress structured the executive branch of government in a way that often diffused authority rather than centralized it.3 Certainly, no consistent pattern of centralized presidential control over administration through a strictly hierarchical arrangement appears in the early period (or thereafter). For example, the very first Congress created a national bank, a public/private corporation. The First Congress did not give the President control over federal prosecution either. It created an Office of Attorney General, but gave the Attorney General no prosecutorial authority. Instead, the Attorney General gave advice to the President and litigated in the Supreme Court. Congress lodged prosecution authority in local District Attorneys nominally under the supervision of the Department of State, but in practice, almost completely independent. Moreover, most prosecution through the mid-­nineteenth century lay in state or private hands, not in the hands of any federal official.4 And Congress as early as 1795 prosecuted bribery itself and continued to prosecute acts obstructing the legislative process



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throughout our history.5 By the time Congress created the DOJ in 1870, Congress had made presidential control of the department through removal impossible by forbidding unilateral presidential removal of its key officials.6 Congress delegated significant authority to the Secretary of the Treasury and to less prominent officials such as the Comptroller. The Treasury Department—­the government’s most important and largest department—­served in part as an arm of the Congress. Early Congresses also established independent commissions staffed by existing executive officers. Congress at first made the Postmaster General subject to presidential direction, but removed the presidential direction provision in 1792, giving him substantial independent authority. On the other hand, Congress denominated the War and Foreign Affairs Departments (and later the Navy) “executive departments” and expected them to take instruction from the President. Domestic statutes of the period sometimes included very detailed instructions, particularly with respect to tax collection. Still, all of the statutes required some exercise of discretion, so a variety of officials inevitably made some judgment calls in administering federal statutes. Mostly in areas involving foreign affairs, however, Congress used broad delegations of authority, often to the President rather than the departments. Even statutes addressing emergencies, however, sometimes involved detailed legislation. The most dramatic example comes from the embargo President Jefferson persuaded Congress to enact to defend the United States against French and British attacks on American shipping. These attacks, which created a huge threat to what we call today national security, triggered legislation, not just unilateral presidential action. While the embargo statutes delegated some broad powers to the President, they also delegated important powers to lower-­ranking officials. The delegation of authority to a customs collector to enforce the embargo led to a much-­discussed circuit court opinion, Ex Parte Gilchrist.7 In that case, President Jefferson, acting through Secretary of the Treasury Gallatin, suggested that the customs collector in Charleston detain Gilchrist’s ships, which he did. Gilchrist then sued to compel the collector to release his ships. The circuit court held that since Congress had given the collector authority to enforce the embargo, the collector must make his own judgment and ignore presidential instructions. Jefferson resisted the opinion, securing an opinion from his Attorney General disagreeing with the Gilchrist court. While the press at the time reported that the collectors complied with presidential instructions after the issuance of this opinion, Gallatin doubted

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this in light of the personal liability that the collectors faced for not properly enforcing the law.8 Congress responded by amending the statute to provide a defense for collectors who act pursuant to presidential instructions, but declined to relieve them of personal liability for improper law enforcement. The embargo, however, did not prove successful and Congress eventually repealed it. That repeal signaled a decline in presidential power and ushered in an era of even greater congressional dominance.9 Increasingly, Congress relied on frequent statutory amendments and oversight to control the administration of law. Since even in George Washington’s time the President could not effectively make sure that all of the federal officials scattered about America’s empire enforcing customs duties, providing postal services, and the like properly enforced the law, Congress supplemented occasional presidential intervention with other tools. These included paying federal officials, some of whom were part-­time employees, for services rendered and providing common law actions to make them personally liable for abuses of authority. The statutes also made liberal use of private enforcement through qui tam actions, which give citizens reporting fraud a reward for litigating to cure government corruption. And they allowed private parties to bring criminal charges against errant officials in some cases. Finally, Congress frequently resolved individual complaints about administration through private bills. After the founding, a customary constitutional norm against at-­will removal of federal officials constrained presidential removal authority. Stephen Skowronek refers to a “common understanding” in the early Republic that a President would only remove federal officials for just cause. He explains that at that time political opponents decried all removals as “an assault on the integrity of the government.” Accordingly, John Adams kept George Washington’s appointees in office, although later he would replace many of them for interfering with his foreign policy.10 As a result of the norm of not always changing officers with a change of administration, the early Republic produced something like the stable administration that Hamilton touted as a consequence of the Constitution’s vesting of appointment and removal authority in the Senate. The growth of political “factions” and partisan division that the Framers had feared and tried to guard against, however, would undermine the stable rule of law envisioned at the founding. Although Jefferson too kept Federalist officeholders in place, he consistently replaced officers who resigned with Republicans and suggested that he might stretch the meaning of for-­cause removal to undermine Federalist resistance.11



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In doing this, he started down the path of creating a custom of patronage, where Presidents appointed their supporters to key posts, often as a reward for help in winning an election. During this period, Attorney General Wirt offered an alternative to the unitary executive theory, explaining to President Monroe that the President’s role was one of “general superintendence” and that presidential exercise of an authority vested in some other officer “would not only be not taking care that the laws were faithfully executed, but . . . violating them.” This opinion is consistent with the Horizontal Sweeping Clause authorizing Congress to pass laws necessary and proper for executive branch implementation of the law. If Congress delegates authority to a particular officer within the executive branch, then the law itself vests authority in that officer. Prohibiting the proper exercise of discretion of an executive branch official charged with an administrative responsibility by Congress therefore, on this reading, violates the Constitution. Yet, Presidents with strong views about policies at odds with the law they inherit tended to use their appointment power and to assert a removal authority in order to people the government with their political supporters. In other words, when the rule of law interferes with what they want to do, they tend to use removal to subvert it. The alternative involves fighting for their preferred policy, but not obtaining its enactment unless and until Congress agrees. While this need to wait and perhaps lose a policy battle comports with a rule of law based on legislative supremacy, it proves unattractive to ambitious Presidents. President Jackson came to power through a populist campaign in the first election in which all white males could vote, regardless of how much property they owned. He railed against the elites and promised to abolish the national bank, which he viewed as an opponent of the farmer and the laboring man. He posed a significant challenge to the old Federalists and even to traditional Republicans like Thomas Jefferson. According to many commentators, Jackson carried the patronage system to new extremes. He introduced the custom of simply replacing officeholders below the cabinet level with his own people, announcing a principle of “rotation of office.”12 His removals excited controversy, and the Senate, in a few cases, declined to approve his appointees. His successors also implemented the “spoils” system, using administrative officials for partisan advantage in elections and requiring political campaign contributions commensurate with the remuneration of the sought office.13 The spoils system reduced the effectiveness of federal administration and increased partisan division.14

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President Jackson’s desire to usurp congressional power over policy also led him to break the custom of generally reserving the veto for strong cases of unconstitutionality when he vetoed legislation renewing the national bank in 1832. The Supreme Court had already declared a national bank constitutional in McCulloch, but Jackson vetoed the bill renewing it anyway.15 Moreover, in doing so, he claimed an authority to ignore Supreme Court precedent to decide on his own whether legislation is constitutional under the Necessary and Proper Clause.16 This amounted to a vigorous assertion of presidential policymaking authority in tension with the assumption of congressional (and judicial) supremacy. Ensuing events demonstrate the value of removal of officials in allowing the President to supersede the law’s objectives with his own policy. Jackson sought to remove federal deposits from the national bank in 1833, even though the old legislation still in force kept the bank in place for four more years. Treasury Secretary Louis McLane refused to remove the deposits so Jackson transferred him to the State Department, appointing William J. Duane, a known bank critic, as Secretary of the Treasury.17 Duane, however, also considered the withdrawal of deposits illegal as they were perfectly safe in the national bank and refused to withdraw them.18 He specifically resisted Jackson’s effort to persuade him to act as a mere agent of the President, declaring that since Congress had given the Secretary discretion in the matter and required reasons for its exercise, he could not comply.19 Jackson overcame this problem by dismissing Duane and replacing him with a more compliant official, Roger B. Taney. (Taney went on to become a Supreme Court Justice and helped precipitate a civil war by writing the infamous Dred Scott decision, which struck down the Missouri Compromise on slavery while declaring that black people were not citizens even in free states.) In 1833, a parade of the countries’ finest constitutional law scholars condemned the removal of executive officers and the refusal to hand over papers about the removal of the officers and the deposits as an unconstitutional power grab, even though a literal statutory argument at odds with the legislative purpose supported Taney’s view that the removal of deposits complied with the law’s terms.20 By ousting the official charged with making decisions about bank deposits, Jackson had adopted policy at odds with congressional wishes. The story of Jackson’s use of removal to sabotage the national bank suggests that a presidential power to remove officials can serve to undermine the rule of law, specifically governance by statute. It can enable a President who has not yet persuaded Congress to change a fundamental policy to displace it on his own either by defying the law outright or interpreting it to undermine its purpose.



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The Senate passed a resolution of censure predicated on the unconstitutionality of removing the Secretary of the Treasury in order to change the decision he had properly made with the authority delegated the Secretary and refused to confirm the recess appointment of Taney. Jackson protested the censure in part based on an assertion that the President has unilateral power to remove the Treasury Secretary. Jackson’s actions also led to the defection of leading Democrats in Congress and to the founding of the “Whig Party,” a term used to denominate opponents of executive usurpation.21 When Jackson’s Democrats took control of the Senate, they expunged the censure resolution. In spite of Jackson and the Democrats’ position that the President enjoyed a removal power, they did not contend that the President had authority to implement the law himself when Congress directed the Treasury Secretary to make a decision. Leading opposition congressmen denied that the President had a removal authority, but were unable to get passage of legislation limiting the authority that Jackson seized until after the Civil War. The Jackson presidency, however, represents the high-­water mark in presidential power prior to the Civil War. While Attorney General Cushing would advise President Pierce that “no Head of Department can lawfully perform an official act against the will of the President,” perhaps having absorbed Jackson’s view, that view did not reflect practice after Jackson, when Congress tended to dominate administration.22 Jackson’s challenge to the rule of congressional policymaking so angered citizens that some of them physically attacked him.23 They apparently considered him an enemy of democracy, because democracy implies the rule of law, not unilateral presidential policymaking. While Jackson’s handpicked successor, Martin Van Buren, won the 1836 election against the still nascent Whig Party, opposition to Jackson’s (and Van Buren’s) autocratic approach contributed to Van Buren’s defeat in the 1840 election, in which 80 percent of the eligible electorate voted, a record.24 The victor in 1840, William Henry Harrison, emphatically rejected Jackson’s autocratic tendencies in his inaugural address, by pledging to seek only one term, to support a constitutional amendment requiring a one-­term limit, never to fire a Treasury Secretary without communicating the circumstances to both houses of Congress, and to limit his use of the veto power.25 Harrison, however, did not last through his term, dying of pneumonia in a matter of months. His successor, Vice President John Tyler, continued Jackson’s “profligate” use of the veto power to negate constitutional bills on mere policy grounds, vetoing new bills establishing a national bank and ending up with

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six vetoes in all (plus four pocket vetoes), a record at the time.26 These actions excited furious opposition, leading a House committee to accuse Tyler of committing impeachable offenses. Ultimately, however, the constitutional custom of restraint with respect to vetoes did not survive. It came to be viewed as a legitimate policymaking tool, constrained at times by political considerations, but not generally limited by an informal constitutional norm. After the Civil War, congressional efforts to reconstruct the South by securing freedom and civil rights for recently emancipated ex-­slaves led to a revival of the Senate’s removal authority, which President Jackson had challenged. The assassination of President Lincoln put President Johnson—­an opponent of the “radical” Republican program of securing voting and other basic rights for freed former slaves—­in the White House with a cabinet inherited from Lincoln. Fearful that President Johnson would use removal authority as a tool to subvert congressional legislation on reconstruction, Congress passed the Tenure of Office Act generally forbidding removal of officials appointed by the Senate without the Senate’s consent. This bill, however, allowed the President to remove officials for cause when Congress was out of session. President Johnson vetoed the bill, but Congress overrode the veto. Johnson, however, removed Lincoln’s Secretary of War, Edwin Stanton, and the House responded by impeaching President Johnson for misconduct. Thus, the first impeachment of a United States President stemmed from an effort by the Congress to assert the removal power that Hamilton claimed the Senate had under the Constitution when he lobbied for its ratification in the Federalist Papers. A trial in the Senate lasting three months ensued, which helped restore the constitutional order predicated upon congressional control over policy. President Johnson’s representatives defended him by relying on a loophole in the Tenure of Office Act and challenging the Act’s constitutionality, thereby echoing President Jackson’s approach in the national bank controversy decades earlier. President Johnson may have understood that these arguments were not likely to carry the day (indeed, the Senate had voted 35 to 6 for Stanton’s reinstatement) and promised to install the widely respected John Schofield as War Secretary.27 These concessions promised a return to congressional control over policy and a rule of law faithful to legislation. Senators also had concerns about Johnson’s likely successor, Senator Benjamin Wade. Making Wade President might also make it harder for Republicans to elect Ulysses S. Grant as President in the next election. Still, the effort to remove Johnson over his failure to allow Congress to control removal of officials received support from the House and the majority of the



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Senate, an indication that in the eyes of Congress the old Federalist position on removal lived on. But removal requires a two-­thirds majority in the Senate, and the Republicans came up one vote short, probably because of Johnson’s reassurances and the unacceptability of Wade. The Tenure of Office Act would remain in place until 1887, and other statutes requiring Senate consent for removal of some of the officials it appoints remained in place through the beginning of the twentieth century. Congress also eventually reined in the practice of appointing and removing federal functionaries to further the President’s political ambitions. The enormous corruption of the Grant Administration and the assassination of President Garfield by a disappointed office seeker helped galvanize demand for the reform of the spoils system. In 1882, Congress responded by passing a civil service reform statute—­the Pendleton Act. It required competitive examinations for hiring and promotions and only allowed discharge of civil servants for cause. It also created a Civil Service Commission to administer the statute. The Pendleton Act limited the President’s authority to people the government with his political supporters. George Washington had selected people based on their character and strength of reputation in the community as a way of securing the rule of law envisioned in the Constitution. By the late nineteenth century, the same purpose of ensuring a rule of law (instead of a rule of presidential personality and politics) would require civil servants with relevant expertise and some protection from politics, which had long since become quite partisan and indeed had led to a Civil War. Civil service laws became a hallmark of constitutional democracies around the world over time. COPING WITH EMERGENCIES

Congressional dominance also applied to questions of how to respond to emergencies in the eighteenth and nineteenth centuries. Yet, both the courts and the political branches recognized that a President facing a sudden attack demanding an immediate response while Congress was out of session might have to take action before Congress could meet and agree on a course of action. They were careful, however, not to allow this occasional necessity to metastasize into a rule undermining congressional supremacy as a check on despotism. Even though Congress increased the President’s power by expanding the military establishment in the early years,28 Congress exercised detailed control over armed conflicts through statutory schemes limiting the use of military force and determining how the government might treat property owned by enemies.29 Perhaps the first big emergency confronting the Republic came from French and

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Indian attacks on American shipping during the Jefferson administration. We have already seen that Jefferson responded primarily by persuading Congress to pass legislation creating an embargo. But President Jefferson took some unilateral action as well, borrowing money to construct ships without authorization of Congress.30 Congress responded by specifying in its appropriation act that the President may only spend money for the purposes authorized by Congress.31 At the same time, it acquiesced in an expansion of executive power by including an emergency exception, giving the President authority to transfer funds.32 Thus, the law evolved to at once retain congressional control over responses to emergencies, subjecting the response to ordinary law, while delegating some limited unilateral power to address true emergencies. Congress exercised its emergency authority during a “quasi-­war” with France to authorize the President to seize American ships headed to France at the end of the eighteenth century. President Adams acting through the Secretary of the Navy instructed American ship captains to also seize vessels coming from France. Captain Little, acting pursuant to the President’s instructions, seized the Flying Fish, a vessel coming from France. The owner of the Flying Fish brought a lawsuit seeking damages against Captain Little and the case made its way to the Supreme Court. In Little v. Barreme,33 the Supreme Court agreed that Congress has the authority to determine the rules for capturing ships in wartime, and held Captain Little liable for seizing the Flying Fish without statutory authority. It refused to accept the President’s order as a sufficient ground for exempting Captain Little from liability. Thus, the Court recognized congressional supremacy even over military power in wartime and declined to defer to the executive branch’s view of how to interpret a statute structuring the conduct of war. In the years between the War of 1812 and the Civil War, Congress authorized and limited uses of military power, directed the location of troops, prohibited a class of interservice military appointments, and prescribed treatment of detainees.34 During this period, however, treatises began to assert that in commanding troops the President has a core power not shared with Congress, and the Presidents themselves began to claim, usually tentatively, limited unilateral authority.35 The Mexican-­American War furnishes the most important example of a President maneuvering unilaterally in ways that tended to undermine congressional control of the war power. President Polk unilaterally provoked a confrontation with Mexico by moving troops into Mexican territory and ordering them to defend themselves if attacked. When Mexican troops predictably attacked the American soldiers, American troops fought back. Polk went to Congress and



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asked for a declaration of war against Mexico and approval of his action, but argued that his unilateral decision to have recourse to arms prior to seeking congressional authorization was justified by the need to defend the United States from attack. After bitter debate, Congress agreed to declare war against Mexico. Several years later, however, the House passed a resolution censuring Polk for “unconstitutionally beginning the war.” The Mexican War ended with the annexation of territory now encompassing the states of Texas, California, Nevada, Utah, and most of Arizona and New Mexico. In exchange the United States relinquished claims to Baja California, assumed $3.5 million in Mexican debts owed American citizens, and paid Mexico $15 million. The Mexican War, however, also produced an early ruling limiting the President’s Commander-­in-­Chief authority.36 In that case, the President invoked his Commander-­in-­Chief power to justify exempting goods shipped from the American-­controlled Mexican city of Tampico from tariffs applicable to foreign goods during the war. The Supreme Court rejected the claim, holding that the power to act as Commander in Chief only extended to directing the troops, but not to annexing territory. The Court declined to defer to the President’s judgment as Commander in Chief that the goods shipped must pass free of tariffs in order to support the American army. The Civil War period caused a greater increase in presidential power. Because Congress was not in session when the Confederacy fired on Fort Sumter, President Lincoln took a number of unilateral actions to put down the rebellion without specific congressional authorization. He did seek congressional ratification of what he himself viewed as extraordinary measures, but not immediately. Lincoln even defied a court order against his unilateral suspension of the writ of habeas corpus. Congress ratified most of Lincoln’s actions later, but limited Lincoln’s suspension of habeas corpus and required wider confiscation of rebel property than the President thought prudent.37 Even in the midst of the Civil War, however, the Supreme Court carefully reviewed conduct of the war for legality. President Lincoln ordered a blockade of Southern ports in April of 1861, which triggered a lawsuit by the owners of seized vessels challenging capture of their ships. In the Prize Cases, the Supreme Court affirmed President Lincoln’s proclamation of a blockade against the Confederacy, based on delegation of authority to put down insurrections in 1795 and 1807, as well as congressional post-­hoc ratification of the particular proclamation challenged.38 The Court deferred to the President’s determination that a Civil War amounting to an insurrection had commenced, using language that also

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recognized the role of Congress in affirming the obvious existence of a state of insurrection.39 But showing no deference to the President at all, it carefully reviewed each shipowner’s claim that the proclamation issued by the President did not reach its cargo.40 While the Court ruled for the government in almost all of the Prize Cases, it held that the embargo did not justify the seizure of tobacco purchased prior to the outbreak of hostilities.41 After the Civil War, Congress radically restricted the Commander-­in-­Chief power by forbidding peacetime dismissals of army and navy officers without a court martial and by forbidding the removal of the General of the Army (Ulysses S. Grant).42 These measures assuming some control over the executive branch limited emergency powers to responses to a sudden emergency. They also advanced Republican reconstruction policies, which favored granting freedmen civil rights over rehabilitation of white rule in the South. After the Civil War, the Supreme Court also hastened to restore the rule of law. During the war, President Lincoln had declared martial law and established military tribunals to try conduct detrimental to the war effort even in areas far from the battlefield. In one of these areas, Indiana, a military commissioner sentenced a lawyer living in Indiana, Lamdin P. Milligan, and others to death by hanging for hatching plans to liberate Confederate soldiers held in Midwestern prisoner-­of-­war camps and contribute to the southern insurrection. Milligan filed a writ of habeas corpus in federal court, and his case made its way to the Supreme Court. In Ex Parte Milligan, the Supreme Court ordered Milligan’s release.43 The decision recognizes the danger of autocracy and the role that the rule of law plays in securing human rights. The Court affirmed that the Constitution and the rule of law persist even during wartime and explained that suspending the law during wartime would leave the people “at the mercy of wicked rulers” leading directly to “anarchy and despotism.”44 Moreover, the Court recalled the Framers’ concerns that someday an autocrat might become President, who would be especially dangerous during wartime. Justice Davis wrote, the nation “cannot always remain at peace, and has no right to expect that [it] will always have wise and humane rulers.” Indeed, he pointed out that “wicked men, ambitious of power, with hatred of liberty and law” may become President and the “dangers to liberty” from such a President during wartime “are frightful to contemplate.”45 And the Court claimed that the Founders knew, based on study of the “history of the world,” that war would occur and that “unlimited power” during wartime would prove “especially hazardous to freemen.” Hence, the Court took the Framers’ concern about an autocratic President ending democracy into account in a



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ruling limiting emergency powers by declining to defer to an esteemed President’s view of what constitutes an emergency. The Court recognized that an emergency might require a suspension of law. But it stated that emergency power, in this case martial law, cannot arise from a “threatened invasion.”46 Instead, the emergency must be actual and present. Furthermore, it suggested that the measure must be necessary, not in the President’s judgment, but in that of the Court. It explained that when the ordinary courts are open, there is no need to authorize military commissions to try civilians. But when they are closed because of foreign invasion or civil war, then courts should accept the plea that necessity requires the emergency measure in the disrupted area.47 Four Justices wrote separately to question the implication that Congress lacks the authority to establish a military commission during insurrection and rebellion.48 But the entire Court agreed that the President lacks unilateral power to establish military commissions based on a threatened emergency. A case arising out of German espionage during World War II would later acknowledge that Congress may establish military commissions during wartime.49

The Twentieth Century Rise of Presidential Power D E L E G AT I O N O F A U T H O R I T Y A N D T H E R I S E O F A D M I N I S T R AT I V E A G E N C I E S

By the late nineteenth century, the American economy had become much more complex than in the past. The rise of railroads, corporations, and modern technology produced enormous economic opportunity, but also created threats of monopoly, economic disruption, and dangers to public health. Congress responded in the ensuing years by delegating vast authorities to the executive branch of government, including authority to write rules that Congress itself might have written if it were feasible for a large collective body to write all the rules necessary to effectively address these multifaceted problems. Although the modern administrative state has antecedents going back to the early days of the Republic, scholars conventionally trace the beginning of the modern administrative state to the creation of the Interstate Commerce Commission in 1887, which received authority to regulate shipping rates to protect farmers and other small businesses from the railroad companies’ price gouging.50 Before the nineteenth century ended, Congress created the first antitrust legislation, which it amended several times in the early twentieth century. Unsafe food and drugs led to the creation of the Food and Drug Administration. The

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new technology of radio could only work properly with assignments of radio frequencies to individual stations, so Congress created the Federal Communications Commission (FCC). The Great Depression led Congress to grant President Roosevelt vast powers to implement his New Deal­­—­a vast government program to revive the failing economy. Growing environmental problems in the 1970s led Congress to delegate authority to a new Environmental Protection Agency, an Occupational Safety and Health Administration, and older federal agencies with responsibility to administer federal lands. While most of the statutes creating the modern administrative state delegated authority to the administrative agencies, some delegated authority to the President. And the President sometimes sought to control or influence the exercise of authority delegated to administrative agencies, as we shall see. During the twentieth century, Congress created “independent agencies” by passing legislation creating multiparty commissions with terms of office long enough to immunize them from wholesale change with each presidential election. This legislation authorized the President to remove commissioners only if they failed to carry out their duties properly. Congress used this technique in part to insulate agencies with functions central to maintaining a democracy from partisan political control. For example, it established the FCC and the Federal Election Commission (FEC) as independent agencies. Democracies around the world have likewise created independent media regulators and electoral commissions to safeguard democracy from capture by a single party intent on bending discourse and electoral rules to its advantage. The delegation of vast authorities to the executive branch over time, sometimes with only vague policy instructions, led the public to view the President as a policymaker. The emergence of new technology putting the President in direct contact with the public—­namely radio, television, and then the Internet—­augmented the expectation that the President will make policy. Prior to the 1930s, the Supreme Court never struck down delegation of authority to a government agency, but it had consistently suggested in dicta that Congress cannot delegate its legislate authority to another branch of government. In the 1930s, the Supreme Court, for the first time in its history, struck down legislation (the National Industrial Recovery Act, aimed at combatting the Great Depression) for violating this nondelegation doctrine. Recognizing the impossibility of distinguishing between delegation of legislative authority and delegation of executive authority, the Court subsequently returned to its earlier jurisprudence and held that any legislation containing



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an “intelligible principle” to guide executive branch discretion passed muster. Under that test, it approved extraordinarily vague delegations, such as requirements for regulation “in the public interest,” and upheld all congressional delegations of authority to the executive branch challenged under the nondelegation doctrine. These frequent and sometimes broad delegations greatly increased presidential power. J U DIC IA L R EV I EW T H ROU G H T H E 1970S

Yet, even though the presidential control over policy had become more central to the public imagination, a robust rule of law continued to limit presidential power at least domestically through the 1970s. In one of the two cases striking authority under the National Industrial Recovery Act, Panama Refining Co. v. Ryan, the Court also held that the President’s exercise of delegated authority was arbitrary because unsupported by factual findings and a rationale, which had in the past accompanied executive orders.51 In that case, the President issued an executive order barring the sale of “hot oil”—­petroleum products produced in violation of state production limits. Panama Refining Company, an owner of a Texas refinery, sued to prevent enforcement of the executive order, alleging a violation of the nondelegation doctrine and the Due Process Clause. The Court explained that it must reverse executive orders lacking factual findings, because without that sort of review statutory restraints would prove “ineffectual.” This holding was consistent with the Court’s Due Process jurisprudence of the period, which subjected all government action, including presidential action, to an arbitrary and capricious test. That test required some rationale for government action, but established a practice of deference to administrative decisions based on plausible reasoning. The Court later reaffirmed the arbitrary and capricious test even as it repudiated Lochner-­era cases that had gone beyond it, such as Smyth v. Ames (a leading utility rate-­setting case) as overly aggressive.52 The Lochner era (1897–­1937) is mainly known for cases, like the Lochner case itself, in which the Supreme Court struck down acts of Congress that it found unreasonable. The Lochner Court struck down a New York statute limiting the working hours of bakers as an unreasonable infringement on liberty violating due process. But the period also featured a line of cases in which the Court invalidated government regulations (mostly setting maximum rates for public utilities) based on its own views of sensible policy, rather than the deferential approach embodied in the arbitrary and capricious test. Congress incorporated the arbitrary and

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capricious test into the Administrative Procedure Act (APA), passed to regularize executive branch administration of the law, in the 1940s. Scholars generally assumed that the APA applied to executive orders and prohibited arbitrary presidential conduct.53 According to Kathryn Kovacs, the APA reflects fear of authoritarianism in light of the rise of fascism in Europe and President Roosevelt’s exercise of vast authority to regulate the economy both to effectuate the New Deal and later to put the economy on a wartime footing.54 The inclusion of the President within the APA furthers the purpose of guarding against authoritarianism that helped drive the enactment of the APA. With the demise of the nondelegation doctrine, arbitrary and capricious review might nevertheless guard against presidential abuse of authority. T H E D E M I S E O F T H E S E N AT E ’ S R O L E I N R E M O VA L

Because requirements for Senate approval of decisions to remove certain federal officials remained a part of the constitutional landscape at the time the administrative state began its rise at the end of the nineteenth century, Congress had tools to ensure that conscientious officials properly administering the new laws enhancing executive branch power remain in place. If a President took office who wished to subvert the laws, Congress could limit the removal power. That Senate power, however, soon vanished from the constitutional scene. Justice William Howard Taft, a former President, wrote an opinion—­Myers v. United States55—­that invalidated a fifty-­year-­old statute requiring that the body approving the appointment of a Postmaster General—­the Senate—­must also approve his removal.56 Ignoring Hamilton’s statements in the Federalist Papers affirming a requirement of Senate concurrence in removal and the defeat of his proposal in the Constitutional Convention to give the President unlimited removal authority,57 Justice Taft relied heavily on the post-­enactment history of the First Congress. He read that debate as evincing a consensus that the President has a constitutional power of removal. Legal historians, however, have since claimed that the First Congress did not reach consensus on that issue.58 Justice Taft also read Article II as implying that the President has the power to remove executive officers without Senate approval. In dicta, Justice Taft opined that the Constitution grants the President at-­will removal authority—­meaning the authority to remove an officeholder without providing any reason. The logic of Taft’s position might lead to corruption and the decimation of the civil service system that Congress introduced in 1883 to counter the spoils system. Justice Taft, however, would not go that far, suggesting



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that Congress may protect inferior officers from removal and can expand the class of protected officials, as the Court had previously held in United States v. Perkins.59 The dissenting Justices read the Constitution as giving Congress control over both the term of office and removal, partly based on the belief that a right of removal could become the basis for establishing an autocracy. Justice Brandeis saw the Founders’ decision to reject “uncontrollable” presidential removal as part of the separation of powers designed “to save the people from autocracy.”60 He found the inference of such a power inconsistent with the rejection of “customary” monarchial “prerogatives” in Article II and the decision to rely on “representative assemblies for the protection of . . . liberties.”61 Quoting Joseph Story, Justice McReynolds opined that an “unlimited power of removal” may become an “instrument of the worst oppression and most vindictive vengeance.”62 He also cited Senator Daniel Webster’s concerns that an absolute removal power would turn public officers into “sycophants . . . and man-­worshippers.”63 While Taft’s destruction of the Senate’s removal authority would prove long-­ lived, the Court pushed back against the idea of constitutionally required at-­will removal not long after it handed down Myers. When President Roosevelt relied on Myers to remove a Federal Trade Commissioner in order to replace him with somebody supportive of the President’s policy views, the Court balked and repudiated the Myers dicta requiring for-­cause removal.64 It went on to explain that the Myers dicta could not possibly apply to the FTC, because it was carrying out quasi-­legislative and quasi-­judicial duties, unlike the Postmaster whose removal led to the Myers decision. The Court held that Congress could make quasi-­judicial and quasi-­legislative officers independent from presidential control. The Court’s decision also pushed back on Justice Taft’s reading of the “decision of 1789” by noting that the First Congress did not make all high officials subject to presidential removal.65 The Court, however, suggested that the President may retain power to remove “purely executive officers.”66 Subsequently, the Court applied similar reasoning to overturn President Eisenhower’s decision to remove a member of the War Claims Commission (a quasi-­judicial body judging compensation claims).67 The Watergate scandal demonstrated the utility of at-­will presidential removal authority in subverting not just the rule of law, but free and fair elections. The Watergate story also shows the value of for-­cause provisions in protecting the rule of law. Richard Nixon decided to tilt the electoral playing field in his favor by trying to get dirt on the political opposition, ordering a burglary to get documents from the Democratic National Committee housed in the Watergate complex and

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ordering tax audits of his opponents. In response to evidence of the Watergate break-­in, Attorney General Elliott Richardson appointed a special counsel to investigate. President Nixon responded to this threat of uncovering his crimes in the same way that Presidents Jackson and Johnson had responded to threats to their ability to unilaterally create policies at odds with the law then in force, by firing law-­abiding subordinates and trying to put more pliant officials in their stead. Nixon ordered Attorney General Richardson to fire the special counsel. Richardson refused and resigned in protest. Nixon then ordered his successor, William Ruckelshaus, to fire the special counsel. Ruckelshaus likewise refused and resigned. President Nixon, however, found an “obsequious instrument of his pleasure” (in Hamilton’s words) in Ruckelshaus’ successor, Robert Bork, who agreed to fire the special counsel. But the Justice Department regulations governing the special counsel office only authorized for-­cause removal, and a federal district court judge held Bork’s firing of the special counsel illegal. The reaction to the “Saturday night massacre”—­the firing of Richardson and Ruckelshaus—­led to increased support for impeachment. And Nixon resigned to avoid almost certain impeachment and removal. The Nixon story shows that removal can be a tool for subverting the rule of law in the service of crimes aimed at changing electoral outcomes. Congress, alarmed at the use of the removal power to undermine the rule of law, passed the Independent Counsel Act, establishing an independent counsel appointed by the judiciary and subject to removal only for cause. In Morrison v. Olson, the Court upheld the Independent Counsel Act against a challenge to its removal and appointment provisions.68 Morrison arose from a context that involved another possible abuse of authority to tilt electoral outcomes—­a congressional investigation into whether President Reagan’s EPA used federal funds dedicated to cleaning up hazardous waste sites to benefit Republican candidates in the 1982 Senate elections.69 President Reagan himself directed the EPA not to turn over some documents sought by a House Committee investigating this potential abuse, citing executive privilege.70 This controversy over political abuse of funding led to the appointment of an independent counsel based on alleged wrongdoing by DOJ officials involved in the dispute about the release of relevant documents. Thus, both the Watergate controversy and the controversy giving rise to Morrison show that removal authority can threaten the rule of law, help entrench an incumbent, and impair democracy. The Morrison Court added to the doubt cast on the Myers for-­cause removal dicta in the cases involving independent commissions by upholding creation of



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for-­cause removal protection for a prosecutor, whom it did not characterize as a quasi-­legislative or quasi-­judicial official. The Court upheld the removal provision on the ground that it did not ‘impede the President’s ability to perform his constitutional duty” to faithfully execute the law.71 Hence, the Court recognized that for-­cause removal suffices to ensure faithful execution of the law. As mentioned in Chapter 1, the Supreme Court also approved the statute’s provision authorizing the judiciary to appoint an independent counsel, holding that the independent counsel is an “inferior officer.” As noted previously, the Constitution’s text explicitly authorizes judicial appointment of inferior officers. Justice Scalia issued a blistering dissent articulating the modern unitary executive theory. The modern Court embraced the dissent’s theory in Seila Law LLC v. Consumer Financial Protection Bureau, with some significant exceptions.72 Scalia insisted that the provision of the Constitution vesting “[t]he executive Power” in the President vests all executive power in the President. Starting from this premise, Scalia would hold that since prosecution constitutes the “quintessential” executive power and the statute deprives the President of “sole control” over the independent counsel, the statute conflicts with Article II. Justice Scalia’s dissent articulates what I have called the “political dimension” of the unitary executive theory by stating that the President must have control over all exercises of executive branch discretion, not just an ability to check illegal conduct by lower-­ranking officials.73 In particular, he characterizes prosecutorial discretion as involving the weighing of “political considerations.” And he maintains that the President must have control over the weighing of these political considerations against legal and practical factors. Accordingly, Scalia would require that the President have the power to remove executive branch officials at will, i.e., without any cause. Scalia’s Morrison dissent catalyzed the unitary executive theory scholarship discussed in Chapter 1. Subsequent use of the independent counsel statute, however, raised accountability concerns leading to its demise. An independent counsel appointed under the Ethics of Government Act in 1994 undertook a long and wide-­ranging investigation of President Bill Clinton, leading to charges that he lied about sexual misconduct. The House impeached him for this conduct, but the Senate declined to remove him. Apparently concluding that the Ethics in Government Act had led to an overly broad and protracted investigation into relatively minor misconduct, Congress let the statute lapse, leaving in place the older regime of special counsels. Thus, we see that in the area of domestic administration, presidential power grew enormously in the twentieth century. During the century, Congress

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delegated enormous power to the President. And the Supreme Court under the leadership of a former President gave future Presidents a unilateral removal authority for Senate-­appointed officials, which had been at times subject to Senatorial constraint. The twentieth century demonstrated that removal authority could be used not only to effectuate unilateral policy change bypassing legislative mechanisms for changing course, but also to cover up crimes and efforts to improperly influence elections. EMERGENCIES IN THE TWENTIETH AND T W E N T Y-­F I R S T C E N T U R I E S

In the years after the Civil War, Congress created a detailed statutory framework for the armed forces and passed extensive neutrality legislation preventing Presidents from engaging in armed conflict.74 During times of crisis, such as World Wars I and II, Congress would add to the framework governing the conduct of war, granting the President vast emergency powers not only to conduct the war but also to regulate the domestic economy and put it on a wartime footing. While Congress repealed many of the statutes conceived of as wartime expedients, it extended some of them after the wars that motivated their enactment, and some remain in place even now. Over time, Congress has delegated sufficient emergency powers to the President to make abuse of those powers a potential danger to American democracy. Prior to the run-­up to World War II, the same basic framework applied to judicial review of exercises of delegated authority to respond to an emergency as to regulation in ordinary times, including the general requirement of reasonableness under the Due Process Clause. During World War I, Congress passed emergency legislation authorizing very broad price controls in support of the war effort. President Wilson used that authority to lower the price of coal. This led the Russell Car & Snow Plow Company to refuse to pay a higher price agreed to prior to President Wilson’s order, triggering a breach of contract action from the coal seller. The coal seller argued that the President’s order violated due process and therefore could not furnish a defense justifying Russell’s breach of contract. In Highland v. Russell Car & Snow Plow Co., the Supreme Court applied the Due Process Clause’s arbitrary and capricious test in adjudicating the validity of the wartime price-­fixing order.75 The Court held that even though the price controls had led to a breach of contract they “were not so clearly unreasonable and arbitrary as to require them to be held repugnant to the Due Process Clause of the Fifth Amendment.” The Court’s use of the word “clearly” suggests some



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deference to the executive branch, but the opinion also leaves open the possibility of holding a wartime measure “unreasonable and arbitrary.” The same framework also permitted second-­guessing of determinations that an emergency existed, as illustrated by the colorful case of Sterling v. Constantin.76 Sterling arose from a complaint by holders of oil and gas leases that the Texas Railroad Commission had violated the Due Process Clause in limiting their production of oil. Governor Sterling responded by declaring a state of insurrection in oil country, imposing martial law, and appointing Brigadier General Wolters of the Texas National Guard to “enforce and uphold the majesty of the law.” The “majest[ic]” law Wolters enforced via martial law sharply limited oil production. In the Supreme Court, Governor Sterling tried to use the state of insurrection as a defense against the district court’s determination that the production limits were arbitrary and capricious and therefore violative of Due Process. The Supreme Court rejected the Texas Governor’s argument that a state of insurrection justified having the Texas National Guard impose strict limits on oil production.77 It simply disagreed with the chief executive’s findings, holding that no evidence of a state of insurrection and hence no justification for the oil production limits based on emergency powers existed. The statutory framework governing war powers and emergencies substantially constrained President Roosevelt in his effort to cooperate with allied forces resisting Nazi Germany, leaving him to do less than he wanted because he had to respect statutory limits.78 But when the Japanese bombed Pearl Harbor, thereby converting a threat of an emergency into a real emergency, Congress acted, declaring war and delegating enormous power to Roosevelt to establish wartime price controls and take other domestic measures necessary to prosecute the war. Even before World War II, however, the Supreme Court issued an opinion, United States v. Curtiss-­Wright Export Corp., which would establish a basis for enlarging the President’s unilateral power over foreign affairs after the war.79 In 1932 a war broke out between Paraguay and Bolivia for control of the “Chaco” region, which was thought to have rich oil reserves. Congress passed a joint resolution in 1934 authorizing President Roosevelt to prohibit arms sales to the belligerents if doing so would contribute to peace in the region, which the President did. The government subsequently indicted Curtiss-­Wright Export Corporation for selling fifteen machine guns to Bolivia in violation of the President’s order. Curtiss-­Wright responded by challenging the validity of the statute giving the President the authority to issue his prohibition on arms sales under the nondelegation doctrine. The Supreme Court, unsurprisingly, upheld

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congressional delegation of authority to the President to restrict arms sales, but Justice Sutherland chose in dicta to articulate an expansive theory of presidential power.80 He unmoored foreign affairs from constitutional text by finding that “the powers of external sovereignty did not depend upon affirmative grants of the Constitution.”81 Justice Sutherland wrote of “the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations.”82 Justice Sutherland did not explain how the Court could legitimately imply such a broad presidential power over foreign affairs from the spare text of Article II in light of the numerous provisions granting Congress broad foreign affairs powers.83 Nonetheless, his opinion and the “sole organ” dictum has enjoyed considerable vitality as a justification for broad implied presidential powers over foreign affairs.84 The Court could have read the “sole organ” dictum as authorizing transfer of the war power from Congress to the President. But when President Truman initiated a war against North Korea without seeking a declaration of war from Congress, the response from the Supreme Court suggested that the specter of European fascism haunted the Court. After the war began, labor strife threatened to shutter the nation’s steel mills, and Truman issued an executive order seizing them in order to make sure that the supply of steel needed to sustain the war effort continued. The Supreme Court, however, disapproved of President Truman’s seizure of steel mills in support of his unilateral war in Youngstown Sheet & Tube Co. v. Sawyer. The Justices adjudicating the Youngstown case had lived through Hitler’s destruction of the Weimar Republic in Germany. Indeed, Justice Jackson had served as the Nuremberg prosecutor of Nazi war crimes, and in that capacity he issued a government report on the Nazis’ rise to power. His opening argument at Nuremberg placed emphasis on the abuse of emergency powers. He noted that the German Constitution authorized suspension of civil liberties “if the public safety and order” require it.85 He attributed the subsequent Nazi coup to Hitler’s success in securing an emergency decree from President Von Hindenberg, which lacked procedural safeguards, such as a prompt judicial hearing, a right to inspect relevant records for appeal, and compensation for erroneous arrests. In other words, he saw abuse of emergency powers as playing a central role in creating the Nazi regime. A historian cited in Jackson’s opinion in Youngstown, Clinton Rossiter, pointed out that the German courts had failed to place any limitations on emergency powers, instead deferring to the political branches of government.86 At the same time, Jackson’s office’s statements at Nuremberg stated that the Nazis reached the point where Hitler could obtain and exercise these emergency



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powers through “legal” means, albeit with the support of terrorism from the party’s supporters.87 The document recognized that Hitler had worked to obtain power by slowly eroding the Weimar democracy from 1925 until the Nazis came to power in 1933, an eight-­year period. The document also recognizes the role that Hitler’s centralized control played in establishing the Nazi dictatorship. Hitler established control even of local government through laws creating a unitary executive, giving the President, upon recommendation of the Chancellor, the authority to choose the chief officials of state governments. The merger of the offices of Chancellor and President in 1934 consolidated Hitler’s de facto power as head of state. This gave Hitler command of the armed forces, who were then required to swear an oath of loyalty to Hitler. Hitler also purged the civil service of political opponents.88 Jackson’s report characterizes an act establishing Hitler’s at-­will removal authority as finally accomplishing the “total subjugation of the German civil servant” to the head of state.89 In support of the Court’s Youngstown ruling, Justices Jackson and Frankfurter linked then recent events in Europe to the Founder’s concerns about emergencies contributing to democratic destruction and establishment of autocracy. Justice Frankfurter found that “the experience through which the world has passed in our own day” had “made vivid” the Founders’ wisdom in creating checks and balances.90 More specifically, Justice Jackson rejected the government’s claim that the “executive power” includes the power to seize steel mills in wartime, because he doubted that the Framers sought to create an executive possessing royal prerogatives in light of the Declaration of Independence’s denunciation of their exercise.91 And, he stated, “if we seek instruction from our own times” we see a “match” between the vision of executive power the government advanced and the practice of the “totalitarian” governments of the Nazi period. Thus, Justices Jackson and Frankfurter drew lessons from the democracy losses in Weimar Germany and other countries in Europe and linked them to the Founders’ anxiety about excessive presidential power. Justice Jackson also used the same sort of link between contemporary experience and the Founders’ concerns to justify rejecting the inference that the Constitution grants the President broad unilateral authority to address emergencies. He rejected the assumption that “necessity knows no law” (echoing Ex Parte Milligan).92 He argued that “our forefathers” left emergency powers out of the Constitution because they “afford a ready pretext for usurpation.”93 He suggested that they understood that “emergency powers would tend to kindle emergencies.” He then cited the experience of Weimar Germany to explain why the Court should not “amend” the Founders’ “work.”94 He noted that under the Weimar

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Constitution’s provisions for suspending individual rights in cases of emergency governments of differing “shades of opinion” suspended these rights 250 times in thirteen years.95 Finally, he pointed out, “Hitler persuaded President Von Hindenberg to suspend all such rights and they were never restored,” citing to the record he had compiled for the Nuremberg trials.96 Thus, Jackson recognized that useful and benign emergency powers could become instruments of democratic subversion in the hands of a chief executive wishing to establish personal rule. On the other hand, he noted that parliaments in France and Britain had delegated vast emergency powers to their leaders during the war, but that these delegations had not lead to dictatorships. He attributes these successes to legislative control and argues against inherent presidential authority to address emergencies. In support of this he notes the “ease” and “expedition” with which Congress has granted ample powers to address real emergencies.97 Jackson and Frankfurter recognized that the creation of presidential power can slowly destroy democracy over time. Justice Frankfurter read the recent history as counseling against complacency about the “hazards of concentrated power.” He also recognized that “the accretion of dangerous power does not come in a day,” but slowly from sanctioning a loosening of restrictions on benign exercises of authority. Similarly, Justice Jackson wrote, “I am not alarmed that [emergency powers] would plunge us straight away into dictatorship, but it is at least a step in the wrong direction.” In saying this, he echoed his dissent from the Court’s approval of President Roosevelt’s internment of Japanese citizens in California during World War II in the Korematsu case. In his Korematsu dissent he suggested that after judicial approval of an emergency power, the principle justifying the approval “lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”98 Justice Jackson also recognized that the President constitutes the primary potential threat to democracy in light of the growth of presidential powers in the first half of the twentieth century. He noted, writing in 1951, that the President’s national election has made him “the focus of public hopes and expectations.” He added, No other personality in public life can compete with him in access to the public mind through modern methods of communications. By his prestige as head of state and his influence on public opinion he exerts a leverage upon those who are supposed to check and balance his power which often cancels out their effectiveness.



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He also explains that the President as party leader often has control going beyond the formal powers of his office. Thus, Jackson recognized that the twentieth century President, in practice, enjoys an ability to frequently thwart legislative efforts to constrain him. He then writes, “I cannot be brought to believe that this country will suffer if the Court refused to further aggrandize the presidential office, already so potent and so relatively immune from judicial review.” Thus, Jackson considered the growth of presidential power since the founding important in assessing the proper judicial stance toward presidential power. Justice Jackson explains that in spite of “delays and inconveniences” preservation of “free government” requires placing the “Executive . . . under the law” and making the law through “parliamentary deliberations” not unilateral actions. In the Jackson opinion’s final sentences, he wrote that the Court must be the “last, not first” to give up on the rule of law and deliberative democracy even though they “may be destined to pass away.”99 Thus, even while apparently recognizing, in light of the pre-­war experience, that political factors can destroy democracy, he insisted that the Court must resist that. After Youngstown, however, Presidents continued to assert a unilateral authority to engage in military operations without congressional approval.100 The pressures of being a world power after World War II led Presidents to assume unilateral power to send troops anywhere in the world.101 America had to cope with a cold war, in which the Soviet Union sought to exert global influence in order to spread communism, and the United States became the principal defender of a democratic order it helped establish at the end of World War II. On September 11, 2001, terrorists unleashed a series of coordinated attacks on U.S. targets, killing thousands. These attacks put enormous pressure on the President, as the leader of the United States, to take actions to ensure our safety going forward. Even though the immediate emergency ended quickly as the planes carrying out the attacks crashed to the ground, President Bush handled significant elements of the response to the attack unilaterally. He did this even though Congress proved amenable to ratifying far-­reaching responses to the September 11 debacle. It became clear not too long after the planes crashed that Al Qaeda posed a long-­term threat that would be with us for years, so that an augmentation of presidential authority to deal with terrorism would pose a long-­term risk of having vast power fall to a President seeking to establish an autocracy. While Bush did seek and obtain congressional authorization of the use of military force against Al Qaeda, which permitted a war in Afghanistan, he

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unilaterally waged war against the antiterrorist Iraqi government using the terrorist acts as a pretext, rounded up many people associated with terrorist groups and imprisoned them in Guantanamo, and, in an illustration of the tendency of emergency powers to lead to domestic oppression, began a wiretapping program not authorized by statute.102 President Bush also established an entire system of military commissions to try enemy combatants outside the statutory framework that Congress provided, without seeking fresh legislation.103 Individuals imprisoned in Guantanamo Bay challenged the President’s exercise of emergency power. Militia forces in Afghanistan turned a Yemeni named Salim Ahmed Hamdan over to the U.S. military in November of 2001, which transferred him to Guantanamo Bay seven months later. After he was held two years without charges, the U.S. military charged him with conspiracy. Hamdan challenged the constitutionality of the military commission to which the government had assigned his case. In Hamdan v. Rumsfeld, the Supreme Court invalidated Bush’s order creating the military commissions as in conflict with the existing statutory framework and international law. Concurring opinions by Justices Breyer and Kennedy rejected emergency power as sufficient justification for the order establishing military commissions in ways quite congruent with Justice Jackson’s concern about emergency powers tending to kindle emergencies and unravel deliberative democracy. Justice Breyer distinguished between a sudden emergency when Congress was not in session and an ongoing crisis that Congress can address through legislation. “Where . . . no emergency prevents consultation with Congress,” he wrote, “judicial insistence upon that consultation . . . strengthens the Nation’s ability to determine—­through democratic means—­how best to” confront a danger facing the Republic. Writing for four Justices, he affirmed the judges’ duty to safeguard democracy, stating, “The Constitution places its faith in those democratic means. Our Court today simply does the same.” Justice Kennedy, writing for the same four Justices, emphasized the importance of allowing deliberative democracy to govern responses to emergencies whenever possible, rather than hasty unilateral responses. He characterized the statutory framework for military commissions as “the result of a deliberative and reflective process engaging both of the political branches.” He saw the rule of law by adherence to statutes as “giv[ing] some assurance of stability in time of crisis.” And he recognized, as Jackson had, that unilateral assumption of emergency power threatens our democracy. “The Constitution,” he wrote, “is best preserved by reliance on standards . . . insulated from the pressures of the



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moment.” (emphasis added) Furthermore, he recognized that “[c]oncentration of power puts personal liberty in peril of arbitrary action.” Congress did respond to the same necessity that motivated Bush’s creation of military commissions. It created a commission to study the failure to prevent the 9/11 attacks, which recommended reorganization of national security responsibilities in the executive branch to facilitate information sharing. It promptly passed legislation along the lines recommended by the commission. It also expanded wiretapping authority in the Patriot Act. After Hamdan struck down Bush’s military commissions, Congress promptly passed a statute providing for trial by military commission of alleged “enemy combatants,” but provided procedural safeguards not present in Bush’s executive orders.

Conclusion The twentieth century witnessed a vast increase in presidential power in both domestic and foreign affairs. Practice and judicial opinions rewrote the Constitution in some respects, with practice suggesting a unilateral presidential power to respond to emergencies and an ex-­President sitting on the Supreme Court resolving a long-­standing battle between various Presidents and Congress over removal authority by creating a unilateral presidential authority to remove top-­level officials. The twentieth century demonstrated by the 1970s that the removal authority not only gave Presidents means of circumventing legislative control over policy, but also provided tools useful in carrying out illegal measures to change electoral results. Some of the most revered Supreme Court Justices, however, recognized that the Court needed to countervail presidential power. And some of them linked the founders’ concerns about excessive concentration of power in a single individual to experience with democracy loss in Europe. The next two chapters show that the modern Court, in spite of occasional rulings checking presidential power (such as Hamdan), authorized a vast expansion of presidential power and repeatedly disabled congressional efforts to make the President legally accountable. Both the unitary executive theory and judicial support for presidential emergency power played a role in this judicial enabling of presidential power.

3

DECLINING TO A D J U D I C AT E C L A I M S AGAINST THE PRESIDENT

Du r i ng t h e t w e n t i et h century the Supreme Court developed a set of justiciability doctrines limiting federal adjudication of cases—­including doctrines of standing, ripeness, and political questions. The standing doctrine requires courts to dismiss a challenge to government action unless the challenger can show that the challenged action is likely to injure her in a way that a favorable decision would redress. The ripeness doctrine limits premature adjudication, by allowing courts to dismiss cases when waiting to see how a law is applied would make the legal issues more clear and concrete without inflicting undue hardship on parties challenging the law. The political question doctrine requires courts to dismiss questions that are political, rather than legal. The Supreme Court identified six factors that may indicate a political question in Baker v. Carr, the case that led to the one man, one vote principle to avoid racially discriminatory gerrymandering.1 Federal courts most often find an issue political when they find a “lack of judicially discoverable and manageable standards” for deciding the issue presented or a constitutional commitment of the relevant issue to the political branches of government. The courts frequently employ justiciability doctrines in ways that tend to shield claims of presidential misconduct from judicial review, although they provide general rules applicable to all federal adjudication. When judges decline to review a case challenging a presidential action, the President can continue engaging in the conduct alleged to violate the Constitution or governing statutes. 54



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Accordingly, rulings denying justiciability function, to some degree, as rulings on the merits, even though the Supreme Court conceives of them primarily as limits on its jurisdiction.2 Rulings declining to adjudicate complaints against the President, in effect, authorize potentially illegal presidential conduct, albeit without explicit judicial approval. Justiciability rulings declining to adjudicate claims of illegal presidential conduct tend to create additional presidential power. Executive branch lawyers have some tendency to favor presidential power anyway and may find it difficult to counsel restraint when no court has reached an issue of presidential power relevant to matters about which they must issue advice.3 At the same time, Congress may find it impossible to restrain presidential power once asserted and left unchecked by the courts, because legislation limiting presidential power may have to overcome a presidential veto and therefore require a two-­thirds majority. Increasingly aggressive presidential assertions of authority to initiate war unilaterally provide the most dramatic example of this link between judicial abdication and enhanced presidential power. While the Constitution’s text places the power to declare war squarely in the Congress, consistent executive practice unchecked by the courts and rarely checked by Congress over decades has effectively transferred the war power to the President. Justiciability rulings also tend to augment presidential power because the executive branch often operates in secret. It therefore becomes difficult to know how its operations affect individuals with precision, even when the public learns about the existence of a secret program.4 A strict approach to standing can leave mostly secret operations unchecked because the requirement to show that a challenged practice harms the plaintiff places impossible burdens on litigants seeking to challenge even blatantly unconstitutional presidential acts. Commentators recognize that justiciability doctrines are flexible and that the courts do not apply them consistently.5 For examples, judges decide which injuries they will recognize as a basis for standing—­a “judicially cognizable injury” in the jargon of the federal courts. Judges sometimes declare that an abstract interest in opposing illegal government conduct does not constitute an injury justifying standing. But on other occasions, judges declare that invasion of a legally protected right constitutes an injury, thereby granting a litigant a right to adjudicate based on his interest in deterring illegal conduct. The Supreme Court’s causation requirement for standing—­that the litigant’s injury be “fairly traceable” to the challenged conduct—­can raise metaphysical problems of how to address causal chains when factors other than the challenged government

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action affect the likelihood of future injury.6 The same is true of the requirement that the remedy sought be “likely” to redress the alleged injury. The ripeness doctrine also affords judges a lot of leeway in deciding whether a particular issue would gain concreteness through delay and whether dismissing a case imposes too much hardship on litigants. And the political question doctrine remains so inchoate that one of the leading articles on it bears the title “Is There a Political Question Doctrine?”7 This chapter makes three claims about justiciability doctrines in the context of cases implicating the scope of presidential power under the Constitution. First, the courts sometimes bend the doctrines beyond recognition to avoid adjudicating cases that might require them to limit presidential constitutional authority in the foreign affairs area, even though the Constitution grants extensive foreign affairs powers to Congress. Second, the idea that the judiciary ought not restrain the President lurking in the foreign affairs cases tends to arise in domestic affairs as well. Finally, the Supreme Court takes a liberal approach to justiciability challenges to cases claiming congressional encroachment on the President, even as the courts adopt a stingy approach to reaching the merits of claims that the President has usurped congressional authority.

Avoiding Resolution of Foreign Affairs Power Cases That Might Limit Presidential Power Perhaps the clearest example of the Supreme Court engaging in extraordinary doctrinal maneuvering to avoid adjudication that might recognize a congressional role in foreign affairs by limiting the President comes from Goldwater v. Carter.8 That case arose out of President Carter’s effort to normalize relations with Communist China. To facilitate that, he decided to terminate a long-­ standing treaty with Taiwan. Senator Barry Goldwater challenged the treaty abrogation, claiming that the President may not terminate a treaty without the Senate’s consent. The entire D.C. Circuit Court concluded that the justiciability doctrines did not bar the court from reaching the merits, and unanimously found that the case posed a legal question, rather than a political one. This unanimity is striking because almost all court of appeals rulings involve only three judges, whereas this ruling involved every judge in the circuit. The Supreme Court reversed, but could not agree on a rationale for dismissing the case on justiciability grounds. Justice Rehnquist, writing for four Justices, claimed that the case posed a nonjusticiable “political question” because “it involves the authority of the President in the conduct of our country’s foreign



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relations and the extent to which the Senate or the Congress” may negate the President’s action.9 This view, which has strongly influenced the lower courts, suggests that the Court should never limit the President to vindicate unexercised congressional foreign affairs powers, but instead must always dismiss cases seeking to limit the President’s constitutional authority in this area. As such, its logic powerfully supports presidential assertion of vast foreign affairs power at the expense of Congress. One can readily see why the court of appeals unanimously found a legal question here, not a political question. The constitutional question presented in Goldwater poses fewer difficulties than the questions the courts routinely address in other areas of constitutional law. Article II, section two of the Constitution requires Senate approval of a treaty, so a straightforward inference from that provision would suggest that the Senate must approve its termination. Justice Brennan, however, indicated that he would instead hold that the President could terminate the treaty with Taiwan at issue in Goldwater, because it formed part of a deal to recognize communist China.10 Since he read prior case law as providing the President with a power to recognize foreign governments, he would have vindicated the President’s decision to terminate the treaty with Taiwan in order to recognize Communist China. Goldwater therefore poses a classic question of constitutional interpretation requiring resolution of a conflict between an inference from constitutional text and a customary constitutional power.11 Justice Rehnquist bent the political question doctrine beyond recognition to avoid ruling on a foreign affairs case challenging unilateral presidential power. Federal courts usually find a political question when a case involves a “lack of judicially discoverable and manageable standards” for resolving the question before the Court. The Supreme Court relied on this factor in 2019 in holding that questions about the fairness of political gerrymandering constitute political questions.12 Nobody claimed that this manageable standards problem arises from the question involved in Goldwater. Indeed, this problem arises most frequently in the context of cases that the Court regularly adjudicates, such as Dormant Commerce Clause cases, which have judicial standards that Justice Scalia (rightly) characterized as a quagmire, and cases arising under the Commerce Clause itself, which have a politically charged messiness that seems hard to miss. The two other Supreme Court cases that somewhat recently found political questions invoked the very first Baker factor—­“a textually demonstrable constitutional commitment of the issue to a coordinate political department.” In one of these cases, the Court held that questions about the procedures Congress uses to handle impeachments

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constitute political questions, because the Constitution commits impeachment to Congress.13 In the other case, it held that the Constitution assigns regulation of the National Guard to Congress and the President.14 Baker lists other factors beyond constitutional commitment to other branches of government and the lack of judicially manageable standards that can justify finding a political question, but none of them suggest that the possibility of a political remedy converts a legal question into a political one. Justice Rehnquist justified characterizing a classic constitutional law issue as a political question by stating that Congress has resources to vindicate its interests outside of the judicial forum.15 The existence of political remedies has never figured as a factor in the multifaceted test governing the political question doctrine. Similarly, Justice Powell, who favored dismissal on ripeness grounds, wrote an opinion claiming that the courts should not resolve separation of powers questions until the political branches have each asserted their constitutional authority. Thus, the Goldwater majority suggested that the possibility of political remedies justifies treating a legal question as a political one. Justice Powell’s use of a requirement for exercise of political remedies as a prerequisite to litigation grossly distorts ripeness doctrine. He treated the treaty termination issue as unripe absent a congressional vote against treaty termination. This idea of making the congressional stance relevant to justiciability does not fit ripeness doctrine any better than it does the political question doctrine. Ripeness constitutes a prudential doctrine designed to avoid premature adjudication of issues that might become more clearly defined and less abstract with the passage of time. In assessing whether the courts might benefit from waiting without impairing litigants’ legitimate interests in prompt resolution of disputes, the courts assess the hardship to the parties from withholding review and the fitness of the issue for judicial review. Justice Powell’s concurrence does not articulate a relationship between his rationale and the doctrine’s fundamentals, but one might understand his opinion as suggesting that the lack of congressional action fighting the treaty termination defeats the issue’s fitness for review. This idea, however, proves tautological and disconnected from the doctrine’s purpose. The doctrine’s fitness-­for-­judicial-­review prong focuses on whether the court’s resolution of the issue before it would benefit from information gleaned from awaiting application of the law or instead whether the plaintiff seeks to litigate a “purely legal issue” that does not gain clarity from further factual development. In separation of powers cases, the Court engages in abstract review that usually gains nothing from concrete context, as I have shown elsewhere.16 Certainly, none



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of the Goldwater opinions indicate that later adjudication would clarify the issues before the Court. The issues involve textual inference and considering the scope of presidential recognition authority based on past custom and precedent. Hence, Powell’s opinion, like Rehnquist’s, distorted justiciability doctrine in a way that shields the President from a potential ruling subjecting his treaty termination decision to constitutional restraint. The lower courts for many years took an approach similar to that suggested by Goldwater’s indication that the Court ought not adjudicate separation of powers claims against the President until Congress has acted and shielded presidential usurpation of the congressional war power from judicial scrutiny.17 This line of cases stands in increasing tension with older Supreme Court decisions reviewing questions arising from military operations during wartime for compliance with statutes, such as Little v. Barreme and the Prize Cases. After the War in Kosovo, the D.C. Circuit confronted a case where Goldwater’s demand for congressional action appeared to be met. President Clinton had started bombing raids in Yugoslavia as part of a NATO effort to limit ethnic violence. In response to the war in Vietnam, however, Congress had passed a War Powers Resolution seeking to reassert its war power by requiring Presidents to cease military actions if Congress does not authorize their continuation within sixty days of a President’s commencement of hostilities. In response to Clinton’s bombing in Yugoslavia, Congress took the rare and difficult step of enforcing the War Powers Resolution by declining to pass an authorization to continue hostilities. Several congressmen then brought suit to oblige the President to end his air raids in Yugoslavia.18 The court, however, rejected their attempt to enforce the War Powers Resolution by holding that they lacked a cognizable injury under the standing doctrine. To add insult to injury, the court suggested that the congressmen must do more than defeat a war authorization to obtain standing.19 Although the result is always the same, the rationales for declining to adjudicate war powers cases vary. Sometimes, the courts conflate the question of who has war-­making power with the issue of whether the war is a good idea in invoking the political question doctrine. At other times, they hold that defining what sort of military action constitutes a war constitutes a political question, in spite of the centrality of difficult and contestable line-­drawing exercises to most legal interpretation. When faced with clear offensive initiation of war presenting no definitional issue, the courts shift away from reliance upon the definitional problem to other sorts of justiciability grounds. Sometimes they shift away from the political question and ripeness doctrines with cramped readings of standing

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jurisprudence, but more often they conflate the various doctrines and use them in a mish-­mash to deny challenges questioning unilateral presidential war making. While some of the earlier claims seemed to challenge wars directly, litigants increasingly sought relief that did not require a court to order troops home or even substantially limit ongoing military operations. Some of these cases sought damages compensating those losing property or life in unilateral presidential wars.20 And a few sought relief against military contractors rather than the federal government.21 In dismissing these more peripheral challenges the courts sometimes conflate the issue of whether a President has unilateral war-­making authority with the question of whether his conduct violated some statutory limits on how to exercise that authority. For example, the D.C. Circuit sitting en banc threw out a tort claim seeking compensation for destruction of a pharmaceutical plant on the President’s order by stating that the political question doctrine bars claims that “call into question the prudence of the political branches in matters of foreign policy or national security constitutionally committed to their discretion.”22 But this was a challenge to the executive branch’s actions, not an action of the political branches (in the plural). Judge (now Justice) Kavanaugh wrote a blistering dissent in the pharmaceutical plant case, pointing out that the majority opinion used the political question doctrine to shield President Clinton from a claim that he had violated federal statutes.23 Judge Kavanaugh opined that applying the political question doctrine to statutory claims “loads the dice against the Legislative Branch.”24 Quoting Justice Jackson, Kavanaugh insisted that the judiciary must scrutinize “any claim of exclusive, preclusive Executive authority . . . with caution . . . particularly in the national security arena” because our constitutional system’s “equilibrium . . . is at stake.”25 And indeed, the courts have sometimes held statutory damage claims stemming from wartime operations justiciable.26 Furthermore, the Supreme Court, as Kavanaugh pointed out, has not applied the political question doctrine to statutory claims, even when raised in the foreign affairs context. But the courts have never sought to counter the de facto transfer of the war power from Congress to the President. Even when the courts do not distort doctrine, as they do in cases following Goldwater, they tend to apply existing doctrine very restrictively in ways that tend to shield government misconduct justified in terms of national security from scrutiny. Clapper v. Amnesty International USA provides an excellent example.27 In Clapper, the Supreme Court, in a 5-­4 decision, dismissed an action challenging new law enhancing executive branch surveillance authority from scrutiny on



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standing grounds. The challengers included attorneys representing clients whom the government had detained or charged as terrorists and placed under surveillance in the past. The attorneys alleged that their clients faced a likelihood of future injury through surveillance and that the lawyers suffered a current injury because the possibility of surveillance had forced them to take costly measures to safeguard the confidentiality of communications. The Court found no standing because the future injury was not “certainly impending,” and it viewed the allegations of present injury as an attempt to “manufacture” standing. As the dissent points out, the ruling as to future injury applies a much more restrictive approach to the likelihood of future injury than many other cases. And one might view the costly actions to escape surveillance as a required aspect of competent representation in this context rather than as a strategic effort to manufacture standing. While Clapper involved a challenge to a statute, it promises to shield secretive presidential action from scrutiny. Unless a plaintiff can uncover government surveillance of the plaintiff, Clapper likely precludes any challenge to executive branch surveillance, even if government officials carry it out with no statutory authority whatsoever. Indeed, Clapper requires a specificity of knowledge of secret government activity that will likely preclude almost any challenge to presidential abuses of the rule of law not made public in minute detail. Clapper states that the Court proves especially reluctant to review actions involving “intelligence gathering and foreign affairs.”28 Clapper shows that illiberal application of existing justiciability doctrines applies to both congressional and presidential actions in foreign affairs cases. Because Presidents act so frequently in this area and have seized a war-­making power not given them in the Constitution, the restrictive approach to existing doctrine shields the President more often than Congress from judicial review. The distortion of doctrine emanating from Goldwater, however, shields presidential actions alleged to impinge on congressional authority from judicial review, but not statutes alleged to impinge on presidential authority.

The Spread of Judicial Shields Beyond Foreign Affairs The Supreme Court carried the Goldwater idea that adjudication should often await the full engagement of the Congress in defending its prerogatives into domestic affairs in Raines v. Byrd.29 Raines arose from a congressional decision to try to address budget deficits by giving the President a line item veto—­the ability to veto particular spending authorizations without vetoing an entire budget (which would shut down the government). Various congressmen challenged

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the statute’s constitutionality. The Raines Court suggested that only a House of Congress acting together would have standing to challenge actions enhancing presidential power at the expense of Congress, a stance in some tension with earlier case law.30 Raines, of course, involved an attempt by Congress to enhance presidential power, and the Court’s justiciability ruling served as a precursor to a decision striking down this increase in presidential power. While Raines prevented individual congressmen from challenging a statute impinging on congressional prerogatives, the lower courts have used it to limit challenges to alleged presidential usurpation of the congressional war power. This increasingly restrictive congressional standing doctrine has the same tendency as the Goldwater decision, of demanding an institutional stance against the President before the Court will hear a case. We cannot be certain that the Court will follow Raines’ suggestion that a single House of Congress has standing to vindicate a statute. In 2019, the Court held that a single house of a state legislature lacks standing to challenge a court ruling invalidating the legislature’s redistricting plan.31 But the Court’s increasingly restrictive congressional standing doctrine, unlike Goldwater’s rulings on the political question doctrine and ripeness and Clapper’s ruling on private party standing, does not prevent private litigants from obtaining judicial review. The Supreme Court has not applied Goldwater’s approach to the political question doctrine and ripeness to domestic affairs. But Goldwater’s specific reasoning about awaiting congressional engagement does not appear limited to foreign affairs. In theory, Congress can check any allegedly illegal assertion of presidential power, although doing it in fact in the face of a veto would prove very difficult. Thus, the opinion has the potential to justify judicial failure to maintain the rule of law against presidential defiance of constitutional limits across the board. Some lower courts have used Goldwater’s logic to undermine the domestic rule of law. President Trump, upon his election to office, failed to follow prior constitutional custom of selling assets potentially creating a conflict of interest and placing the rest in a blind trust. As a result of this breach of custom and the President’s ownership of hotels frequented by foreign visitors, he allegedly ran afoul of the Constitution’s Foreign Emoluments Clause, designed to prevent presidential corruption by forbidding his acceptance of anything of value from foreign governments without congressional approval. A district court dismissing complaints about this violation relied in part on Goldwater’s reasoning to justify dismissal.32 Because, in the court’s view, Congress can enforce the Emoluments



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Clause, the judge dismissed the claims, relying on Powell’s institutional ripeness theory. In doing so, he relied not only on Goldwater itself, but also on one of the war powers cases applying its logic. Hence, the notion that the courts ought not adjudicate foreign affairs cases generated a separation of powers logic favoring politics over the rule of law domestically and hindering enforcement of constitutional restraints limiting presidential corruption. Another district court judge used Goldwater’s logic to deny the House of Representatives standing to contest presidential abuse of emergency powers. This case arose out of a dispute regarding funding for a wall that President Trump wanted to build on the southern border to keep out Mexican and Central American immigrants. The dispute produced the longest government shutdown in history, ending with only a token appropriation to support the border wall.33 The President then invoked emergency powers to circumvent the funding limits, and the House of Representatives sued to challenge this use of emergency authority. Even though the House acting on its own has the authority to deny funding for a project, the Court denied that it suffers an injury when the President spends money that Congress has not authorized. It bolstered this ruling by noting that the House could, “with a two-­thirds majority override the President’s veto of the resolution voiding the National Emergency declaration.” Since the House cannot override a veto without Senate support, this judge’s theory destroys the House’s power to stop an expenditure on its own. This approach could, as in the war powers context, facilitate the transfer of congressional power to an aggressive President if combined with an overly stingy approach to private party standing, a presidential power grab not imminently injuring an identifiable private party, or limits on private causes of action (statutory or judicially created rights to sue).34 Other lower courts have not read the institutional logic of Goldwater and Raines quite so broadly.35 One of the judges adjudicating an Emoluments Clause case recognized that taking the Goldwater logic to its extreme would imply that the courts should never constrain presidential lawbreaking, because, at least in theory, impeachment can always remediate presidential misconduct.36 It declined to consider the availability of such an “extreme measure” a remedy justifying staying the judicial hand. And the Second Circuit reversed the trial court decision that had relied on Goldwater’s ripeness logic to justify dismissal of an Emoluments Clause claim.37 Some Supreme Court Justices, however, have suggested in dissent that they see no problem in carrying Goldwater’s conversion of the possibility of political enforcement into a justiciability barrier to extreme lengths. In United States v.

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Windsor, a same-­sex couple successfully challenged the Defense of Marriage Act, which forbade federal recognition of state-­sanctioned same-­sex marriages, as incompatible with equal protection of the laws. The case presented a justiciability issue, because the Obama administration refused to defend the Act in the Supreme Court, thereby creating an issue about whether a case or controversy existed. (Article III only authorizes federal court adjudication of cases and controversies and therefore requires two adverse parties). Justice Scalia’s dissent from the Court’s decision to find a case or controversy suggested that the judiciary should not necessarily remedy presidential abrogation of statutes. Scalia’s Windsor dissent claims that the President may properly decline to enforce or defend a statute that he finds unconstitutional.38 The failure to implement the statute deprives the people it injures of standing, but that is fine, writes Justice Scalia, because it leaves matters to Congress, “which has innumerable means (up to and including impeachment) of compelling the President to enforce the laws it has written.”39 Justice Scalia offered these rather strong deregulatory views to support a narrow proposition—­that the Court ought not to adjudicate friendly appeals by the government of cases the government has won below by siding with the plaintiff. But he goes much further, explaining that where a President enforces a statute but then declines to defend its constitutionality, the court should use the judicial power to cement the President’s decision to abrogate a statute into law. He states that cases like this “should end in a judicial order or consent decree enjoining enforcement.”40 So, a court lacking jurisdiction because of a lack of adverse parties, according to Scalia, should still act to affirm presidential power to nullify an act of Congress without looking at whether the President’s decision to nullify the law has an adequate constitutional basis. This view matters because Justices Roberts and Thomas joined Scalia’s Windsor dissent and remain on the Court, the current conservative majority may find Justice Scalia’s ideas persuasive, and lower courts have begun to follow the Windsor dissent’s logic to unravel congressional power. For example, the district court judge denying the House standing to contest use of emergency powers to circumvent appropriation limits on wall-­building relied on the Windsor dissent. Yet, Scalia claimed that his approach would only render “some” presidentially negated statutes beyond judicial review. He likely made this concession to the power of the courts to check presidential decisions to abrogate statutes because of the possibility that statutory beneficiaries might have standing to sue to challenge presidential nullification of law.



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Justice Scalia’s writing on standing doctrine when he was a law professor, however, suggests a willingness to insulate a President wishing to stop enforcement of law he does not like from judicial review completely. Specifically, he wrote a law review article claiming that the courts ought not adjudicate cases vindicating the majority’s interest in law enforcement, instead confining themselves to enforcing minority rights.41 This view would, in effect, extend the Goldwater concept of declining to resolve challenges to presidential decisions in the foreign affairs area to all executive branch decisions in domestic and foreign affairs. Indeed, it would go further by declining to adjudicate presidential refusal to enforce the law even when Congress has sought to use its powers to reign the President in. The principle of not enforcing law at the behest of the law’s beneficiaries (the majority interest) means that the President’s nonenforcement decisions, which would stop any injuries to minority interests, defeat judicial review entirely. Scalia on the bench sought to move the Court in this direction by advocating an Article II theory of standing based on the unitary executive theory. The unitary executive theory reads Article II’s instruction that the President “take care that the laws be faithfully executed” and his “executive authority” as depriving Congress and other executive branch officials of any independent law enforcement capacity. Scalia suggested that this grant of authority casts private enforcement of the law through devices such as citizen suits and judicial review into doubt. He also stated that creating a general right to sue the executive branch for legal violations would transfer the “primary” responsibility to “take Care that the Laws be faithfully executed” to the courts.42 At least in the standing cases, he did not quite go as far as suggesting that the President’s executive authority completely obliterates judicial review of executive action, but he equated too frequent judicial review with abrogation of the presidential primacy demanded by the unitary executive theory. The Court has rejected the theory that Article II provides a basis for existing standing doctrine,43 but Scalia’s unitary executive reasoning has influenced the Court’s standing doctrine, nonetheless. Scalia has invoked the unitary executive theory-­type reasoning to argue for narrowing standing under Article III.44 And he has on several occasions invited Article II arguments to defeat private causes of action.45 Finally, his majority opinions for the Court, consistent with his hostility to judicial review at the behest of members of the majority, have made statutory standing more difficult for statutory beneficiaries than for regulated parties.46 During the Trump administration, the Court became unusually aggressive in ignoring customary restraints on its own review, sometimes in conjunction with discretionary justiciability doctrine, to shield presidential misconduct from

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the effects of lower court rulings recognizing their illegality. Customarily, the Supreme Court almost always waits until at least one appellate court has decided an issue before the Supreme Court will intervene. But during the Trump administration, it frequently intervened to keep preliminary district court rulings checking presidential assertions of power from taking effect.47 For example, before the court of appeals even reviewed a district court preliminary injunction of construction of a portion of President Trump’s wall on the United States’ southern border, the Supreme Court issued a stay permitting the project to commence immediately in a 5-­4 decision based on its view, reached without briefing and oral argument, that no “cause of action” (a statutory or judicially implied right to sue) existed.48 The stay had the effect of allowing construction of the wall to go forward, even though every lower court that had examined the case found that Trump had illegally circumvented congressional control over the purse and that the Sierra Club had a valid cause of action.49 Another example stemmed from a Trump administration decision to issue a rule denying almost all Central Americans coming over the southern border a right to apply for asylum, unless they can show that they sought asylum first in Mexico or another Central American country. After a district court enjoined the rule denying immigrants asylum rights, the Supreme Court stayed the lower court’s order before the court of appeals had time to review the case’s merits without any explanation.50 In this case, the district court had also found that Trump had likely violated legal requirements, but had not reached final resolution when the Supreme Court intervened.51 In cases not involving challenges to presidential power, the Roberts Court rarely intervenes before at least one court of appeals, and sometimes several, resolves the issues that may generate Supreme Court review. Thus, the Court sometimes ignores the constitutional customs limiting its own review in cases challenging presidential policy. The logic of some of the foreign affairs cases and the unitary executive theory sometimes influences domestic law justiciability doctrine and customs limiting Supreme Court review. These ideas tend to augment presidential power domestically and have the potential to unravel the rule of law.

Judicial Eagerness to Adjudicate Cases Alleging Congressional Encroachment Upon Presidential Power In Clapper and Raines, the Court claimed that its “standing inquiry has been especially rigorous” when the dispute involves a constitutional challenge to “an action taken by one of the other two branches of the Federal Government.”



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Whether this statement about standing doctrine alone is true or not as a general matter, the Court has not rigorously applied standing doctrine or justiciability doctrines generally to limit adjudication of cases alleging congressional encroachment on presidential authority. Instead, it goes out of its way to accept such challenges in spite of barriers to judicial review. In particular, the courts never apply the Goldwater prohibition on adjudication of separation of powers cases that might be resolved through political remedies to cases challenging acts of Congress as encroaching upon the executive branch. In any interbranch conflict, the political branches of government have some resources to restrain each other, and they can almost always do more than they have to assert their interests.52 The courts however, never require the President to use his powers (primarily the veto) before it will find a challenge to congressional authority justiciable. The idea that a failure of a political branch of government to use its powers to engage an issue should defeat justiciability protects only presidential power, not congressional power. Consider, for example, INS v. Chadha. Chadha was an immigrant living in the United States. The Attorney General decided to take an administrative action exempting him from deportation under the Immigration and Naturalization Act (INA). But the INA, like many other statutes at the time, authorized one house of Congress to veto an administrative decision, and the House of Representatives decided to order his deportation. The Immigration and Naturalization Service challenged the congressional decision to deport Chadha, arguing that the Constitution did not permit the one-­house veto. The Court agreed, employing broad reasoning that invalidated numerous statutory provisions authorizing congressional vetoes of administrative actions.53 The Court rejected the argument that it should consider the one-­house veto a political question without even addressing the point that this case implicated an interbranch dispute, which the President could fight by vetoing legislation.54 Chadha provides perhaps the most sweeping example of the Court’s liberality in challenges to congressional encroachment for another reason. Although the Court has long insisted that Article III’s case or controversy requirement demands two adverse parties, the Chadha Court invalidated more statutes than the Court had invalidated in its entire history in a case in which the two main parties were on the same side. Both the INS and Chadha favored invalidation of the one-­house veto. The Court adjudicated the case anyway, finding that the court order below “aggrieved” the INS and therefore satisfied statutory limits on appellate review in spite of the INS’ agreement with the resolution below.55

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It also held that congressional intervention in the case sufficed to create a “case or controversy” under Article III.56 The Court, however, recently declined to follow Rehnquist’s Goldwater concurrence in a case where it ultimately voted for the same result its abstention produced in Goldwater, augmentation of presidential authority at the expense of Congress. In Zivotofsky v. Clinton,57 the Court addressed a justiciability issue like that posed in Goldwater of how to resolve a clash between presidential and congressional control over foreign affairs. Congress passed a statute authorizing American citizens born in Jerusalem to get a passport listing Israel as their birthplace. Zivotofsky sought to vindicate his statutory right as an American citizen living in Jerusalem to have Israel listed as his place of birth on his passport, but the State Department refused to list Israel on his passport, as doing so might undercut the long-­standing executive branch policy of not recognizing Jerusalem as part of Israel. The case thus presented a conflict between the President’s implied authority over recognition of foreign governments and congressional authority over foreign commerce and immigration. The majority, however, rejected Justice Breyer’s argument, relying on Rehnquist’s Goldwater opinion, that the existence of “nonjudicial methods for working out” political differences between the President and Congress made this a political question. While one might read Zivotofsky as repudiating the Goldwater approach to the political question doctrine, it may vindicate the pro-­presidential bias evident in the lower court decisions. The Zivotofsky Court justified its decision to treat this separation of powers question as a justiciable legal issue by stating that the courts have the responsibility to determine the constitutionality of statutes.58 And indeed, it went on to strike down the statute creating a right of Jerusalem residents to list Israel on their passports as an infringement of the President’s authority over recognition in a subsequent 5-­4 decision. Its opinion leaves open the possibility of continuing to invoke Goldwater to support exempting the President’s actions from judicial scrutiny (perhaps as a matter of ripeness), while explicitly affirming the practice of not applying Goldwater’s political remedies principle to shield duly enacted statutes from judicial scrutiny. The Court also took a liberal approach to judicial review of a statute alleged to interfere with presidential power in Seila Law LLP v. Consumer Financial Protection Bureau (CFPB).59 Seila Law announced the Court’s support for the unitary executive theory and invalidated a statutory provision that prohibited removal of the CFPB Director except for good cause on separation of powers grounds. When the CFPB sued Seila Law to enforce a subpoena as part



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of an investigation of its debt relief services, Seila Law resisted on the ground that statutory for-­cause removal protection for the CFPB Director violated the Constitution. The Trump administration agreed. In spite of the lack of adverse parties and any controversy over removal of a CFPB Director, the Supreme Court found the case justiciable. In Bowsher v. Synar, the Court brushed aside serious ripeness problems to invalidate the Balanced Budget and Emergency Deficit Control Act of 1985, in which Congress delegated authority to make budget cuts to the Comptroller General in order to bring government deficits under control. The Court held that the Act delegated substantial budgetary powers to an official removable by Congress under a 1921 statute.60 Unlike previous cases assessing the constitutionality of removal provisions, this case did not arise from an action removing the officer. The Court, however, summarily rejected a ripeness challenge to review of the removal provision’s constitutionality in advance of its application. The debate among the Justices hinged, in large part, on the question of whether the removal provision, which authorized only for-­cause removal, made the Comptroller General subservient to Congress. The majority concluded that the removal provision allows for removal for any actions opposed by Congress in practice notwithstanding the narrow grounds for removal stated in the statute.61 Four Justices disagreed.62 Since arguments about the practical effect of the removal provision might benefit from a factual context revealing how it operates, this case seemed to invite a serious inquiry into whether the issue is fit for judicial review before application of the removal provision, but the Court did not seriously engage the ripeness issue. Similarly, the Court took a liberal approach to the ripeness of challenges to congressional control over appointments to the Federal Election Commission (FEC) in Buckley v. Valeo.63 Buckley is most widely known as the case where the Supreme Court announced that “money is speech” and struck down congressional limits on campaign expenditures (making it a predecessor of the more widely known Citizens United case). Senator Buckley, however, also challenged the Federal Election Campaign Act provisions governing appointment of FEC commissioners. The court of appeals had considered some challenges to the FEC’s as yet unexercised authority not ripe, as the nature of the authority exercised might be relevant to the decision. The Supreme Court, however, took up all questions implicating the appointments power, relying on congressional interest in resolving the claims, the employment of one authority after adjudication in the lower courts, and the likelihood that the FEC would soon exercise

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other challenged authorities. The Court has never treated the possibility of using unexercised presidential authority as relevant to justiciability. In Metropolitan Washington Airports Authority (MWAA) v. Citizens for the Abatement of Aircraft Noise (Citizens), the Court took a liberal approach to standing in order to reach (and strike down) a statute creating a Review Board consisting of nine members of Congress with veto power over plans for the Washington, D.C. airports. Citizens mounted a challenge to the statutory scheme, because the plan enacted created too much air traffic at Reagan National Airport, creating major noise issues for residents in their group. Their case, however, seemed to suffer from major causation problems under the standing doctrine, which the Court sidestepped. The Review Board did not cause the harms that Citizens complained of, as the MWAA enacted the master plan creating the injuries. Indeed, the Review Board gave Citizens a forum it would not otherwise have had to contest the MWAA’s decision. Nevertheless, the Court found standing to challenge the constitutionality of the Review Board.64 In Free Enterprise Fund v. Public Company Accounting Oversight Board (Board), the Court allowed an accounting firm criticized in a Board report to challenge the Board’s appointment mechanism, which the Court struck down as an infringement on presidential power.65Although no penalty had issued and the main plaintiff in the case was an ideological plaintiff, the Court did not ask whether criticism in an audit report inflicts a judicially cognizable injury. Instead, it reached the merits and struck down a measure designed to maintain the independence of the Board tasked with ensuring adequate accounting audits of public companies. My point is not necessarily that all or even any of these rulings are clearly wrong. Indeed, the flexibility of justiciability doctrines makes a wide range of results plausible. My point, instead, is that the courts liberally permit judicial and Supreme Court review of challenges to congressional statutes limiting presidential power, while they tend to apply justiciability doctrines extremely strictly or even distort them out of recognition to avoid adjudicating challenges to presidential exercises of power that may usurp congressional authority.

Conclusion The courts have a pronounced tendency to eagerly exercise judicial review of statutes that might limit presidential power. On the other hand, they have a tendency to duck review of expansions of presidential power, like unilateral initiation of war and termination of treaties.



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These tendencies do not prevent all judicial review of presidential actions or guarantee prompt judicial review of statutes. But they support the aggrandizement of presidential power. They have contributed to transfer of the war power from Congress to the President and weakened congressional efforts to limit the growth of presidential power. The unitary executive theory has played a role in supporting these tendencies. The idea that the President has the authority to control law enforcement leads the Court to consider the question of whether private litigants or congressional actors may enforce the law against the executive branch an open question under Article II. The unitary executive theory, so far, has weakened rather than eliminated judicial review of alleged presidential lawbreaking. But if the Court were to find that the unitary executive theory gave the President sole control over law enforcement and prohibited anybody else from bringing a legal challenge, then a President would be free to disregard the law completely unless impeached.

4

IMPLIED PRESIDENTIAL AND CONGRESSIONAL POWER

T h e mode r n Su pr e m e C ou rt has authorized a vast increase in presidential power and defeated key congressional efforts to establish legal constraints on its abuse. It has done this by liberally implying presidential powers, whilst often declining to accept claims of implied (or express) congressional power to put checks and balances into place. Former Yale Law School Dean Harold Koh once opined that the President almost always wins in foreign affairs cases.1 Koh and many other constitutional scholars maintained that the judiciary cooperated in increasing the implied power of the President over foreign affairs and national security by habitually deferring to or declining to review presidential initiatives in that area.2 This chapter shows that the implied power jurisprudence goes beyond foreign affairs by using implied power concepts to disable legislative checks on growing presidential power not just abroad, but also at home. Ganesh Sitaraman and Ingrid Wuerth recently argued that the counterterrorism cases and the Roberts Court have moved away from the Court’s especially generous implication of executive branch power over foreign affairs.3 Trump v. Hawaii casts doubts on that hypothesis at least as applied to the President’s own actions.4 That case arose from President Trump’s effort to fulfill a campaign promise to issue travel bans preventing Muslims from entering the United States. The federal courts enjoined his first two travel bans, primarily on the ground that they reflected religious animus and therefore violated the Constitution’s Equal Protection Clause. The Supreme Court, however, upheld his third travel 72



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ban because of the perceived need to leave the President largely free from effective judicial oversight in the area of national security, at least in the context of immigration. This chapter’s analysis suggests that even if Sitaraman and Wuerth are correct, the Court may have moved away from foreign affairs exceptionalism in part by tilting its implied powers jurisprudence toward the President across the board, rather than by greatly diminishing implied presidential power in the foreign affairs area.5 The implied powers jurisprudence suggests that the Court creatively reshapes constitutional powers of the President to meet contemporary needs as it sees them.

Implied Power at the Time of Youngstown Through the time of Youngstown (1952), the Court took a more generous approach to implied congressional authority than to pleas to establish broad implied presidential authority, notwithstanding the sole-­organ dictum in Curtiss-­Wright (the case upholding enforcement of an arms embargo preventing shipping weapons to Bolivia). McCulloch v. Maryland (the national bank case introduced in Chapter 1) constitutes the leading case on implied congressional power. McCulloch interpreted the Necessary and Proper Clause as authorizing congressional use of any legitimate means to legitimate ends within the letter and spirit of the Constitution. This chapter will refer to this interpretation as “McCulloch’s means/ends reasoning.” As a corollary, Justice Marshall explained that Congress generally has the right to choose freely among the means of achieving a desired end. The Necessary and Proper Clause applies only to acts of Congress, not to actions by other branches of the government. A concern that applies to acts of Congress, that a rejection or narrow construction of implied powers would debilitate the entire federal government, pervades Marshall’s McCulloch opinion. Yet, McCulloch contains other justifications for implying powers that might apply to the President. Famously, Justice Marshall argued that the nature of a Constitution supports the existence of implied powers. He noted that a Constitution necessarily omits details and therefore the lack of express power cannot be dispositive. Furthermore, Marshall pointed out that a Constitution must permit the government to adapt to new circumstances, indeed to confront the crises of human affairs. Marshall’s admonition that in considering implied power “we must never forget that it is a constitution we are expounding” might apply to all branches of government.6 On the other hand, the Horizontal Sweeping Clause suggests that the Congress, not the courts, should play the lead role in deciding

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whether to expand presidential power to compensate for omitted details or meet new crises.7 McCulloch also articulates an idea of constitutional custom, which Justice Frankfurter expanded and applied to the President in Youngstown (the case invalidating President Truman’s seizure of the steel mills in support of the Korean War). Justice Marshall opined that the history of legislative acts establishing the Bank of the United States deserved great weight in addressing its constitutionality. He noted, however, that the Court should not acquiesce to acts impinging individual liberty or constituting “bold and daring usurpation.”8 Notwithstanding the concerns Justices Frankfurter and Jackson expressed in Youngstown about abuse of implied emergency authority, their opinions in that case provided rationales for implying presidential authority based on either prior custom or implicit congressional approval. The experience of seeing President Roosevelt’s ability to respond to Hitler’s rise to power in Europe hamstrung prior to Pearl Harbor may have made them wary of too narrow an approach to presidential power. The government in Youngstown argued that the President’s power as Commander in Chief and executor of the laws justified the seizure of steel mills to aid the Korean War.9 The government asked the Court to “impl[y]” a power to seize mills from the aggregation of these two powers.10 Justice Black, writing for the majority, declined to imply unstated powers. Instead, he analyzed the government’s argument as a claim of express authority, asking first whether the Commander-­in-­Chief authority authorized President Truman’s order and then whether the executive power did so.11 The majority opinion concluded that Truman’s order implemented no act of Congress and lay beyond his power as Commander in Chief. Black noted that Congress had considered emergency procedures of seizure as a means of settling labor disputes, but rejected it when it passed the Taft-­Hartley Act. Justice Jackson’s Youngstown concurrence, however, endorsed implied executive power and has enjoyed the most influence. He opined that presidential powers fluctuate depending upon their conjunction or disjunction with those of Congress.12 He then set out a tripartite framework for deciding implied power cases. Under this framework, the President’s power is “at its maximum” when “the President acts pursuant to an express or implied authorization of Congress.”13 By introducing the idea of “implied” congressional authorization, he endorsed implying a presidential power without an explicit textual statutory basis. After



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all, implied congressional authorization would only figure in cases where Congress has not expressly authorized the presidential action triggering litigation. In cases where legislation expressly authorizes a challenged action, the President merely executes the law and therefore exercises his executive power under Article II’s Vesting Clause. Justice Jackson then describes a complex second category where Congress has neither authorized nor denied authority to carry out the act in question.14 Within this category, Jackson finds a “twilight zone” in which the President and Congress have “concurrent authority.”15 In this area, he writes, results will likely depend on “imperatives of events and contemporary imponderables.”16 Thus, Jackson sometimes accepts implying presidential power from contemporary events. Jackson concludes by describing a third category, when the President’s “power is at its lowest ebb.”17 This category describes presidential measures “incompatible with the express or implied will of Congress.”18 In this area, Justice Jackson would apparently only uphold actions based on some sort of exclusive presidential authority—­meaning an express constitutional authority not overlapping with congressional constitutional authority. In this way, Justice Jackson suggests that the courts may imply the existence of a presidential power from either congressional silence or implied congressional consent. But Jackson’s opinion suggests frequent rejection of implied presidential power in the face of express or implied congressional opposition. Because of the Congress’ decision not to include an emergency provision authorizing seizure of industrial facilities in the Taft-­Hartley Act, Jackson found that Congress opposed creation of an emergency power to seize steel mills in support of the Korean War. Justice Frankfurter’s concurring opinion endorsed “systematic, unbroken, executive practice” as a source of implied presidential power when Congress knows about the practice and has never questioned it.19 He justified this in part by pointing out that Presidents have “sworn to uphold the Constitution.”20 It follows that the doctrine of implied presidential power stemming from custom rests upon a presumption that Presidents act in good faith. Frankfurter and Jackson’s approaches can overlap, as indications of congressional intent prove relevant to both. Although Justices Frankfurter and Jackson agreed with Justice Black that the President has no authority to seize steel mills, their opinions go out of their way to create bases for judicial implication of presidential power in future cases. Only Justices Black and Douglas failed to endorse judicial implication of presidential powers not stated in the Constitution. The four remaining concurring

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Justices and the three dissenters indicated support for judicially implied presidential powers. While law professors often teach Youngstown as a foreign affairs case, its framework extends beyond the realm of foreign affairs to encompass any claim of implied presidential power.21 Indeed, the Court’s rejection of the Commander-­in-­ Chief argument and its inference of congressional disapproval from the treatment of property seizure in the law of labor relations suggest that the Court viewed Youngstown as a domestic law case. At the same time, the government’s Korean War justification reveals that no bright line divides foreign from domestic affairs.22 The literature has remarkably little to say about what exactly implied powers are, but McCulloch and Youngstown suggest a definition. First, implied powers are not express powers. McCulloch illustrates the point. Nobody claimed that the Constitution expressly authorizes incorporating a national bank. But, as the McCulloch Court pointed out, the Constitution’s clauses creating express powers are broad and open-­ended. Express power questions usually involve contested claims that a broadly worded clause authorizes a particular measure not expressly mentioned in the Constitution. Thus, when President Truman ordered General MacArthur to withdraw from Korea, he acted under his express authority as Commander in Chief, even though the Constitution does not mention withdrawal commands. The Commander-­in-­Chief Clause includes the authority to issue orders to generals. Justice Marshall obscures this point in his McCulloch opinion, but establishing a national bank cannot be considered a levying of a tax or a regulation of interstate commerce. Hence, the Constitution does not create an express power to found a national bank. Second, as suggested by McCulloch, implied powers include cases where a Court finds a power useful in carrying out some express authority but that power does not itself lie within the express power’s scope. Justice Marshall alludes to this possibility when he suggests that a national bank might aid tax collection. Third, an implied power may prove useful in meeting the objectives that an express authority serves. As the Youngstown dissent suggests, the authority to seize steel mills might be useful to the prosecution of a war and therefore serve the objectives motivating the creation of the Commander-­in-­Chief power, even though it does not aid the issuance of commands that the Commander-­in-­Chief Clause authorizes. Fourth, a court may also imply a power because that power will be useful in carrying out several express powers.23 McCulloch suggests such a cumulative-­powers argument could justify the national bank,24 but the Youngstown Court did not accept Justice Vinson’s suggestion that an amalgamation of Article II powers could justify presidential seizure of steel mills. Finally, a Court may imply



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a power without making a case for it serving specific powers or their goals because it views it as appropriate or indispensable to the well-­being of the country.25 These leading cases suggest that the Constitution favors congressional implied power over executive implied power. The constitutional text supports such a reading, as it only expressly creates congressional implied power.26 One can see this tilt toward Congress by comparing what the Court did in McCulloch to what it did not do in Youngstown. The McCulloch Court read the Constitution to grant implied power to pass legislation that serves as a legitimate means to a constitutionally permissible end. The Youngstown Court implicitly rejected the application of such a broad approach to issues of presidential power.27 Even though seizing the steel mills might have advanced the Korean War effort, the Court refused to imply a power to seize the mills. The Court could have said that the purpose of the Commander-­in-­Chief Clause is to aid the national defense. Seizing the steel mills provides at least a useful means toward achieving that end. Since, in Justice Marshall’s words, the end is “legitimate” and the means “plainly adapted to that end” then the measure is “constitutional.”28 But the Court declined to say this. Justice Douglas, concurring in Youngstown, explained why the need to seize steel mills does not create authority to do so. “The fact that it was necessary . . . does not mean that the President, rather than the Congress, had the constitutional authority to act.”29 The Douglas concurrence helps explain why the Youngstown approach to implied powers is less hospitable to implied power claims than McCulloch. Congressional power questions implicate the capacity of the federal government as a whole and therefore require liberal construction of implied powers. By contrast, denying the President an implied power does not generally incapacitate the federal government. Instead, a Court denying a presidential request for judicially implied power simply insists on a deliberative legislative process prior to action. Yet, even as Youngstown implicitly rejected means/ends reasoning, Justice Frankfurter broadened the bases for treating presidential action as a “gloss” on the Constitution, allowing Presidents to change the Constitution’s meaning without congressional approval or a demonstration of necessity. McCulloch’s gloss, by contrast, came from acts of Congress approved, after due consideration, by Presidents and their cabinets. And Justice Jackson’s opinion opens the door to allowing a single President to create constitutional meaning without affirmative legislation authorizing the action by accepting the concepts of implied congressional approval and a twilight zone where the President in some cases might legitimately act on his own.

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Asymmetric Implied Power After Youngstown Since Youngstown, the Court has largely reversed its preference for implied congressional power.30 It generally accepts presidential claims of implied power while very often rejecting congressional implied power claims in adjudicating challenges to legislation under McCulloch. Its approach has not only increased unilateral presidential power to act in emergencies, but weakened checks on presidential power in more routine contexts. This part explains how this occurred. It first shows that in spite of the primacy conventional wisdom gives to the Jackson concurrence in Youngstown, the Court often does not give congressional intent much weight in analyzing questions of implied presidential power. It then demonstrates that the modern Court generally fails to treat a history of legislative enactments signed into law by Presidents as a constitutional gloss on congressional power, while it often gives substantial weight to executive branch custom. Finally, it explains that the modern Court often applies McCulloch’s means/ends reasoning to presidential implied power claims, but often declines to apply it to congressional enactments, contrary to what Youngstown and McCulloch suggest. The Necessary and Proper Clause sometimes gets short shrift from the modern Court, but the notion of judicially implied presidential power usually gets generous treatment. T H E FA I L U R E T O G I V E C O N G R E S S I O N A L V I E W S M U C H C R E DE NC E I N PR E SI DE N T IA L P OW E R C ASE S

While the Supreme Court and scholars generally endorse the Jackson concurrence as the proper framework for analyzing implied presidential powers, the Jackson framework does not explain cases very well. Instead, congressional intent plays a smaller role in implied presidential power cases than one might think. Indeed, the Court often uses implied presidential power to emasculate express congressional checks on presidential power. The Jackson concurrence proves important in cases where conventional statutory interpretation does not directly answer the question of whether the President enjoys a claimed power. Indeed, the statute addressed in Youngstown itself did not directly address the President’s power to seize steel mills. In these cases, application of the Jackson framework requires drawing inferences from statutory silences and the history of congressional consideration of the subject matter. Accordingly, judges can manipulate the framework to obtain desired outcomes.31



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In Youngstown, Justice Jackson inferred congressional disapproval (category three) from congressional silence. Jackson declined to place the case in his twilight zone (category two), because Congress had legislated in the field of property seizure, even though the legislation does not explicitly prohibit the seizure before the Court. Instead, he implied a congressional intent to forbid the seizure (category three) from its consideration of the problem of property seizure in labor law coupled with the failure to include seizures in support of a war effort in the law. Thus, congressional legislation in the field coupled with a failure to mention the specific issue before the Court, in Jackson’s view, justified an inference that Congress disapproved of the seizure. Jackson’s concerns about the tendency of the head-­of-­state’s emergency powers to erode democracy in light of then recent events in Europe contributed to his application of this framework to limit presidential power. The Court followed the same approach more recently, in Medellin v. Texas. That ruling arose out of an international dispute around Texas’ conviction of José Ernesto Medellin, a Mexican national, for rape and murder. The International Court of Justice (ICJ) held that fifty-­one Mexican nationals, including Medellin, were entitled to reconsideration of their convictions because they were not advised of their right to consult with the Mexican consulate. President George W. Bush ordered Texas to implement the ICJ decision. The Medellin Court read congressional silence on the issue of whether the President has unilateral authority to implement an ICJ judgment as signaling congressional disapproval without any direct indicia of congressional disapproval.32 But as memories of the rise of European fascism faded and the threat of terrorism grew, the Court took a different approach to emergency powers more rooted in supporting desirable presidential action in the moment than to preserving limits on executive power that might aid the long-­term preservation of democracy. In 1979, American diplomatic personnel were seized and held hostage in Iran. President Carter negotiated an agreement, which settled various financial claims in exchange for the release of the hostages. Before this agreement had been reached, a firm called Dames & Moore had sued the government of Iran for breach of a contract to pay for studies of sites for a nuclear power plant. And it obtained a federal court order seizing the assets of Iranian entities to make sure that it would get paid if it won its lawsuit. The government orders implementing the settlement with Iran nullified these “attachments,” so Dames & Moore sued to abrogate the orders’ nullification of its attachments. When the case reached the Supreme Court, the Court took an approach to applying

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the Jackson framework at odds with Jackson’s Youngstown opinion. Dames & Moore v. Regan addressed the question of whether the President has authority to nullify legal claims against Iran to implement an executive agreement settling a dispute over the seizure of hostages.33 Congress had legislated in the field of dispute settlement but had not explicitly granted the President an authority to nullify private claims against a settling government. The Court found that the existence of legislation in the field granting other types of power justified an inference that Congress also approved of claim nullification. The Justices invoking the Jackson framework could have placed these cases in the twilight zone, where decisions rest upon their assessment of events rather than on congressional intent. In Dames & Moore, as leading scholars have pointed out, the legislative history indicating a congressional intent to limit the President’s emergency powers seems to place the question of cancellation of claims in the twilight zone (or even in the area of disapproval).34 And in Medellin, the dissent argued that the case lay in the twilight zone, because there were no concrete indicia of congressional intent.35 Dames & Moore undercut a rare congressional effort to limit the President’s emergency powers. Because bills have to pass through both chambers of Congress and the President can veto legislation, passing bills to limit presidential authority proves difficult and only occurs episodically. Thus, undercutting legislation limiting emergency powers constitutes a large contribution to freeing presidential power to invoke and even abuse emergency powers from legislative constraint, even if the particular use of emergency powers at issue in Dames & Moore was entirely appropriate as a policy matter. Zivotofsky v. Kerry, a case where Congress was not silent on the matter at hand, provides an especially telling example of the lack of weight the Court gives congressional views in cases involving presidential power under Youngstown.36 This case adjudicated the merits of the separation of powers issue raised about congressional regulation of passports for American citizens living in Jerusalem that the Court had held justiciable in Zivotofsky v. Clinton. The statute granting Zivotofsky a right to have Israel listed on his passport interfered with the presidential policy of neutrality toward Jerusalem’s status. Congress has authority over naturalization and foreign commerce, which would suggest that it has authority over the documents permitting travel and recognizing citizenship. On the other hand, the President’s authority to receive ambassadors might imply a power to choose whether to recognize a government, a power arguably interfered with by the statute. The Court recognized that the President’s power to deny listing of Israel



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on documents for American citizens living in Jerusalem fell in Jackson category three, where Congress disagrees with the President and therefore his power lies at its lowest ebb.37 Yet, the Court implied a broad presidential authority over recognition to overcome an express assertion of congressional authority under Article I. Even in Youngstown, most of the Justices did not rely as much on congressional disapproval of the steel mill seizure as they did on the lack of an independent source of constitutional authority for the President to justify his actions. For Justices Black and Douglas, the lack of an affirmative legislative delegation of Article II power ended the case. Conversely, the three dissenters supported implying power to seize the steel mills. But even Justice Jackson’s opinion devotes more attention to justifying broad independent constitutional constraints on presidential power than it does to the congressional stance.38 Justice Jackson inveighed against the idea that a President could augment his own domestic powers by unilaterally initiating a war, as Truman had done in Korea. As Chapter 2 explained, he cited the judgments of “our forefathers” and then recent experience in Europe to support the idea that allowing unilateral creation of emergency powers tempts heads of government to create emergencies in order to usurp power. Hence, judicial constitutional and policy judgment often plays a greater role in implied power cases than congressional intent, express or implied, in spite of the Jackson framework’s prominence.39 Subsequent cases also suggest that the Court’s independent judgment about whether the President should have the unilateral power he has assumed often plays a greater role in resolving presidential implied power claims than congressional intent.40 In Dames & Moore, a judicial judgment that the Court must uphold a deal securing releases of American hostages held by Iran justified the result much more convincingly than a reading of congressional intent. And in Medellin, attitudes about international law and federalism better explain the result than congressional intent. Medellin first raised his consular defense after conviction, and Texas law prohibits raising a defense after conviction that the defendant failed to raise at trial or in a direct appeal of the trial court’s decision. Justice Roberts’ opinion for the Medellin Court expressed concern about allowing a President to require a change in state criminal procedure in order to enforce an international judgment and reluctance to allow treaties to become the supreme law of the land absent specific congressional implementing legislation in that context. Thus, the Court’s separation of powers cases give little weight to congressional views, in spite of the prominence of a framework—­Jackson’s tripartite framework—­that purports to make them dominant.

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The broad implied foreign affairs power recognized in Curtiss-­Wright has also motivated narrow readings of congressional efforts to steer foreign policy through statutory directives, as many commentators have recognized.41 The Court often suspends the ordinary rules of statutory construction in order to grant the President broad implied authority over foreign affairs, sometimes in the teeth of contrary legislation.42 These rulings have expanded the President’s implied power over foreign affairs while narrowing effective congressional authority over foreign affairs through extraordinary construction of legislation governing the conduct of foreign relations. Japan Whaling Association v. American Cetacean Society provides an excellent illustration of the Court’s willingness to ignore statutes in order to grant the executive branch broad authority over foreign affairs.43 The case arose from a long effort to help enforce the International Convention for the Regulation of Whaling (Whaling Convention) and other international agreements setting fishing quotas. Beginning in 1971, Congress authorized the President to impose sanctions on nations violating fishing quotas established under international law. To remedy the failure of Presidents to use this authority, Congress amended the statute to require sanctions. After the International Whaling Commission (which administers the Whaling Convention) established a zero quota for endangered whales, Japan continued to harvest them anyway. But the executive branch, as in the past, still declined to impose sanctions in spite of the statutory shift to mandatory sanctions, instead negotiating an executive agreement aimed at addressing the problem. In Japan Whaling, the Court, in a 5-­4 decision, construed statutory language requiring imposition of sanctions for actions that “diminish the effectiveness of an international fisheries conservation program” as not requiring sanctioning fishing in excess of quotas under the Whaling Convention. By basically ignoring the statutory language and its history, it validated a diplomatic compromise preferred by the Reagan administration.44 Another example of strained statutory interpretation comes from one of the cases arising from detentions of “enemy combatants” in Guantanamo Bay in the wake of the 9/11 attacks. The Northern Alliance fighting the Taliban in Afghanistan turned Hamdi, an American citizen, over to U.S. authorities, who transferred him to Guantanamo and detained him there for years. His father sued for his release, relying on the Non-­Detention Act. That statute, passed in response to the unjust detention of Japanese citizens during World War II, forbade imprisonment of American citizens except pursuant to an act of Congress. In Hamdi v. Rumsfeld, the Court declined to give effect to the Non-­Detention Act.



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Instead, it read an authorization to use “necessary and appropriate” force against those involved with Al Qaeda’s attacks on September 11, 2001, as authorizing detention of an American citizen captured on the battlefield.45 Four Justices, however, dissented on the ground that the Non-­Detention Act, a more specific statute, requires a clear statement authorizing detention. On the other hand, as we saw in Chapter 2, the Court invalidated the President’s creation of military commissions to try “enemy combatants” as contrary to several statutes and the Geneva Conventions in Hamdan v. Rumsfeld.46 The Court cited Justice Jackson’s tripartite framework in explaining why the President “may not disregard limitations that Congress has, in proper exercise of its own war power, placed on his powers.”47 Thus, the Court sometimes subjects the President to legal constraints even in protecting national security when he massively destroys liberty, but rarely limits his foreign affairs actions otherwise. The Court, however, does not limit its use of extraordinary statutory interpretation to expand presidential power to foreign affairs cases. It reads statutes in extraordinary ways to limit judicial and congressional control checks on abuses of presidential authority domestically. A good example comes from Massachusetts’ challenge to the 1990 census, which led to a Supreme Court ruling liberating Presidents from statutory restraint on arbitrary use of executive power. The census, conducted every ten years, provides the basis for allocating seats in the House of Representatives. Massachusetts lost a House seat after the 1990 census and sued, winning a district court victory based on the claim that the method used to establish the residence of overseas military personnel was arbitrary and capricious under the APA. The Supreme Court, in Franklin v. Massachusetts, responded by reading a presidential exemption into the APA.48 The APA, however, defines an “agency” as “each authority of the government,” and the President is a government authority. Furthermore, the APA exempts Congress, several other listed entities, and presidential foreign affairs actions from its strictures, but contains no exemption for the President’s domestic decisions.49 Thus, the APA’s plain language subjects domestic presidential actions to APA review.50 But the Franklin Court declined to respect the broad statutory language’s clear import, instead requiring an “express statement” that the President is included. The scholarly literature conveys the impression that extraordinary statutory construction to advance presidential power confines itself to foreign affairs and national security, but it often goes further than that, freeing the President from checks on his domestic authority.

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This clear statement rule has the potential to eviscerate the rule of law by disabling statutory constraints on presidential conduct when expressed, as they always are, as rules of general applicability, and it has begun to do so. The DOJ has read Franklin as creating a clear statement rule exempting the President from laws that “arguably limit the President’s constitutional role.” In separate opinions over the years, it has used this freshly minted canon of statutory construction to exempt the President from conflict-­of-­interest rules and criminal statutes. President Trump’s second Attorney General, William Barr, has expressed the view that this canon of construction exempts the President from at least some prohibitions on obstruction of justice, thereby empowering the President to abuse the powers of his office to protect himself and his supporters from effective investigation of criminal conduct.51 The Special Counsel, Robert Mueller, disagreed in a report on Russian interference in the 2016 election, which described numerous acts that many federal prosecutors considered to constitute firm evidence of presidential obstruction of justice.52 He interpreted the canon as only protecting proper exercise of executive authority, not abuse of presidential power to interfere with faithful execution of the laws.53 Mueller declined to reach a conclusion about whether Trump’s actions amounted to obstruction of justice in light of the bar on prosecuting sitting Presidents in DOJ guidance. William Barr, however, announced that he (Barr) had concluded that no obstruction of justice had occurred. The Barr approach to construction of the obstruction-­of-­ justice statute also makes the unitary executive theory an engine for eviscerating the rule of law, since the theory makes it “arguable” that the President’s power to direct prosecution is unlimited. Thus, the Court’s extraordinary approach to construction of statutes limiting presidential abuse of power combines with the unitary executive theory to facilitate presidential abuse of government prosecutorial authority to protect the President and his associates. The next chapter shows that centralization and abuse of prosecutorial authority constitute huge threats to democracy. The Court’s failure to give credence to congressional views in presidential power cases has largely defeated the rule of law in foreign affairs. And it has unraveled many checks on the President’s abuse of his authority domestically. THE ASYMMETRIC USE OF HISTORICAL PRACTICE

During the last several decades, the Court has largely abandoned the McCulloch principle that treats a history of congressional enactments approved by Presidents as a constitutional gloss. This is rather startling in light of the



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well-­nigh dispositive role the McCulloch Court endorsed for such strong constitutional custom. The McCulloch Court had treated the history of presidential and congressional approval of the national bank as rendering the issue of its constitutionality “scarcely an open question.”54 Most strikingly, perhaps, the Court gave no weight to a strong history of political approval of the constitutionality of requirements that states with a history of hindering minority voting obtain clearance from the DOJ before adopting new state voting rules under the Voting Rights Act in Shelby County v. Holder.55 These preclearance requirements had a longer and more continuous history of political approval than the Act establishing the national bank, which McCulloch approved. Similarly, the Burger Court gave no weight to a history of congressional approval of legislative vetoes in INS v. Chadha.56 As the previous chapter pointed out, the Chadha Court invalidated the one-­house veto, a mechanism for checking executive branch exercise of delegated authority by allowing one house of Congress to veto an executive branch action under a statute. Congress, however, had approved the legislative veto in hundreds of statutes over a fifty-­year period. While numerous Presidents officially acquiesced by signing legislation containing legislative vetoes, eleven Presidents at some point expressed doubts about the legislative veto’s constitutionality. In spite of the legislative veto’s firm establishment in the law, the Court not only declined to uphold the legislative veto at issue in Chadha itself, which involved a decision to suspend deportation of an alien, but chose a broad ground for decision that invalidated one-­house vetoes in very different contexts, such as legislative vetoes of presidential exercises of emergency powers. Even when upholding a federal statute under the Necessary and Proper Clause, the Court suggested a departure from McCulloch’s strong presumption of validity for actions supported by statutory custom. In December of 2006, the government sought to use “civil commitment” to detain mentally ill prisoners who had finished serving sentences for possession of child pornography or sexual abuse in order to protect the community. Former prisoners challenged the constitutionality of the statute authorizing their civil commitment as beyond the limits of congressional power. In U.S. v. Comstock, the Court reviewed the history of federal “prison-­related mental-­health statutes” in upholding the most recent civil-­commitment statute under the Necessary and Proper Clause.57 But instead of treating this history as well-­nigh dispositive, it stated “that . . . a longstanding history of related federal action does not demonstrate a statute’s constitutionality.”58 The Comstock Court used history as an aid to understanding

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the “statutory scheme” and assessing “the reasonableness of the relations between the new statute and pre-­existing federal interests.”59 By contrast, the Court tends to honor histories of executive action acquiesced in, at least to some extent, by Congress. In numerous cases, the Court has authorized the President to resolve international disputes unilaterally with executive agreements, notwithstanding the constitutional requirement of Senate treaty approval.60 In Zivotofsky, the Court gave effect to a checkered history of congressional acquiescence to executive branch recognition authority, wherein Congress had occasionally initiated recognition decisions and some Presidents had expressed doubt about the exclusivity of presidential authority.61 A P P LY I N G M C C U L L O C H ’ S M E A N S / E N D S R E A S O N I N G T O P R E S I D E N T I A L A C T I O N S B U T N O T A LWAY S TO C ONG R E S SIONA L E NAC TM E N T S

In recent years, the Court has increasingly applied McCulloch’s means/ends reasoning to justify expanding presidential power and decreased its use to validate congressional enactments. Perhaps the most cited example of using means/ ends reasoning to create implied presidential power comes from United States v. Nixon, where the Court relied on McCulloch to justify creating a presidential power to resist a subpoena.62 The case arose from President Nixon’s attempts to suppress the tapes of Oval Office conversations that tied him and his associates to the Watergate break-­in. The Court concluded that privileging presidential information would help Presidents get candid advice and therefore read a qualified presidential power to keep information confidential into the Constitution.63 In other words, keeping information private serves as a legitimate means to a constitutionally valid end of getting the President candid advice. The Court also used means/ends reasoning to create implied presidential power defeating mechanisms advancing presidential accountability in Nixon v. Fitzgerald. The Fitzgerald Court created a presumptive presidential immunity from damages actions, lest the possibility of financially damaging litigation deter vigorous execution of presidential responsibilities.64 While liberally employing means/ends reasoning to augment presidential power, the Court often rejects the use of means/ends reasoning to amplify congressional power and even expressed disdain for giving the Necessary and Proper Clause weight in reviewing federal legislation, calling it the “last, best hope of those who defend ultra vires congressional action.”65 For example, in Free Enterprise Fund v. Public Company Accounting Oversight Board (PCAOB) the



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Court invalidated a statute authorizing the Security and Exchange Commission (SEC) to remove members of the PCAOB for cause.66 The Court explained that a presidential removal power aids the President in carrying out his executive power and “taking Care that the Laws be faithfully executed.” The Court had previously upheld use of for-­cause removal provisions to ensure the autonomy of independent agencies, but the PCAOB Court invalidated the statute’s “multilevel protection from [presidential] removal,” since the President could not remove SEC commissioners with the authority to remove PCAOB officers, except for malfeasance and neglect of duty. Justice Breyer, writing for four dissenting Justices, argued that the statute was a necessary and proper means of carrying out congressional authority to create and structure federal offices, citing McCulloch. Justice Roberts’ opinion for the Court does not respond to Breyer’s invocation of the Necessary and Proper Clause. Zivotofsky also employs McCulloch’s logic to vindicate implied presidential power whilst rejecting the Necessary and Proper Clause’s use to expand congressional authority. The Zivotofsky Court held that the purpose of the presidential power to receive ambassadors is to recognize the country the ambassador represents. The purpose of recognizing a country requires an authority to determine the “territorial bounds” of the recognition. The Court implied a presidential power to insist that government-­issued passports for American citizens reinforce rather than undermine the recognition decision because it provides a means to a legitimate end. At the same time, the Zivotofsky Court gave the Necessary and Proper Clause no role in assessing the validity of congressional legislation governing the passports. It declined to attach controlling weight to the dissent’s argument that congressional power over immigration and naturalization implies congressional control over passports in light of the Necessary and Proper Clause. Zivotofsky and PCAOB mirror several other separation of powers cases declining to give the Necessary and Proper Clause any role in separation of powers challenges to congressional actions.67 For example, in Bowsher v. Synar, Justice White argued in dissent that the Necessary and Proper Clause authorized Congress to delegate budget-­cutting authority to an independent officer, because this delegation offered a useful means of achieving a goal of automatic deficit reduction.68 Justice Burger’s opinion for the Court did not even address the Necessary and Proper Clause, instead striking down the measure as a usurpation of executive power. Moreover, the Court’s reluctance to apply the Necessary and Proper Clause to questions of congressional authority goes beyond separation of powers cases. The

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Court most clearly rejected McCulloch’s broad means/ends reasoning in its decisions cabining congressional authority to enforce the Fourteenth and Fifteenth Amendments—­which guarantee voting rights, due process, and equal protection of the laws—­with appropriate legislation. The Court generally accepted that McCulloch’s means/ends reasoning applies to these post–­Civil War amendments from the nineteenth century until the mid-­1990s.69 In City of Boerne v. Flores, however, the Court adopted an approach to the Fourteenth Amendment that split the difference between the broad approach of McCulloch and the absolutely indispensable test that Justice Marshall rejected. Flores involved a church effort to use the Religious Freedom Restoration Act of 1983 (RFRA) to resist a zoning board denial of a building permit needed to enlarge a church in a historic district. The RFRA sought to enforce the Fourteenth Amendment Due Process Clause’s protection of religious freedom by granting religious practice broader protection than the Supreme Court had afforded it. The Court refused to countenance legislation tending to advance Due Process rights, instead requiring that the means chosen by Congress be congruent and proportional to the injury Congress sought to prevent.70 In doing so, it not only rejected McCulloch’s broad means/ ends reasoning, it also implicitly declined to apply its holding that Congress, not the Court, gets to choose the appropriate means to desirable ends.71 The Court also refused to apply McCulloch’s broad means/ends reasoning and deference to congressional legislation under the Fourteenth and Fifteenth Amendments when it considered the constitutionality of preclearance requirements under the Voting Rights Act in Shelby County v. Holder.72 Shelby featured a spirited debate on McCulloch between the majority, which invalidated the preclearance requirements as unnecessary, and the dissent, which would have upheld them based on deference to congressional judgment. The majority simply disagreed with the congressional judgment that the country needs preclearance. The Court also gives means/ends reasoning little weight in its most recent Commerce Clause jurisprudence. In 2010, President Obama secured passage of the Affordable Care Act (ACA), which seeks to provide affordable care by broadening insurance coverage. In order to make sure that this will happen, the law includes an “individual mandate”—­a requirement that persons not otherwise insured purchase health insurance. Five Justices declined to uphold the individual mandate as a measure necessary and proper to regulation of the health care market under the ACA, albeit in dicta.73 Justice Ginsburg’s strong argument for four Justices that the individual mandate was not only useful in carrying out valid goals under the Constitution, but indispensable to substantial portions



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of the ACA failed to carry the day. Justice Roberts, with support of the other conservative Justices, acknowledged that the individual mandate was “necessary to the [ACA’s] insurance reforms” but found them improper. Thus, five Justices read the Constitution as authorizing the Supreme Court to define the scope of proper alternatives, rather than leave that judgment to Congress. While the Court refuses to apply McCulloch’s means/ends reasoning to statutes in separation of powers, civil rights, or health care cases, it does apply it to laws regulating federal prisoners.74 The Comstock Court relied heavily on the broad statements in McCulloch that recognize congressional power to enact laws that are “convenient,” “useful,” or “conducive” to the exercise of an enumerated power.75 It was thus up to Congress to choose how to further its custodial interest in protecting members of society from violent acts by mentally ill federal prisoners. The Constitution does not explicitly mention a congressional power to criminalize conduct, to imprison individuals who engage in that conduct, or to enact laws governing prisons and prisoners. Yet, the Court found that Congress nonetheless possesses broad authority to do each of those things in the course of “carrying into Execution” the enumerated powers “vested by” the “Constitution in the Government of the United States,” authority granted by the Necessary and Proper Clause. More narrowly, in Sabri v. United States, the Court upheld a statute forbidding bribery of recipients of federal funds.76 Sabri sought to challenge his conviction for bribing a city councilman in order to obtain approval for a real estate development by attacking the federal statute. Citing McCulloch, the Court found the bribery prohibition a necessary and proper means to ensure that federal funds are properly spent.77 Thus, the post-­Youngstown Court sometimes employs McCulloch’s means/ends reasoning to create implied presidential power. But it often declines to employ the same reasoning to condone exercises of congressional power, which constitute the object of the Necessary and Proper Clause. The net result has been an augmentation of presidential power and a disabling of congressional power, which may establish foreign policy or check abuses of augmented presidential power.

The Unitary Executive Theory These trends coalesced in a case embracing the unitary executive theory that the Court had previously declined to adopt in Morrison. In Seila Law LLC v. Consumer Financial Protection Bureau (CFPB), the Court created a constitutional rule that the President must have unfettered authority to remove the

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single head of a government agency in a 5-­4 decision.78 Seila Law invalidates a statute authorizing the President to remove the CFPB Director only for cause. The majority gave no weight to congressional views, rejecting a strong argument by the dissent that the Horizontal Sweeping Clause authorizes congressional regulation of the removal authority to secure the independence of a financial services regulator. Although Congress and Presidents had agreed to many statutes securing agency independence through such provisions in the past, the Court distinguished prior legislative precedents rather than allowing them to “gloss” the Constitution. The Court employed McCulloch’s means/ends reasoning as well, finding the authority to fire an agency director for political reasons necessary to the end of supervising the agency. The Court employed strikingly authoritarian language in reaching this result, suggesting that executive branch officials “must fear and . . . obey” the President.79 It relied on the need to protect liberty in justifying this decision. But it did not rely on the need to protect citizens’ liberty from an unchecked chief executive, but rather upon the need of the President to protect citizens from overzealous bureaucrats.

Erosion of the Rule of Law and Dismantling of Checks and Balances Thus, we see that the modern Court’s separation of powers jurisprudence tends to favor the President over Congress. It gives congressional views little credence in cases when Presidents assert unilateral power. It gives no weight to constitutional custom consisting of statutes passed with presidential acquiescence but substantial weight to executive branch custom expanding presidential power. And it gives the Necessary and Proper Clause no weight at all in presidential challenges to laws restricting the President (or advancing civil rights), while frequently and aggressively using judicial power to give the President implied powers it thinks useful using the means/ends reasoning properly employed to support congressional power. All of this has led to erosion of the rule of law and a dismantling of many of the checks and balances that might constrain presidential power. The tendency to favor presidential power goes beyond national security and foreign policy, reaching cases where the Court limits legal accountability mechanisms to free up the executive domestically. That common theme emerges not only from United States v. Nixon (executive privilege) and Fitzgerald (damages actions against the President), but also from Chadha (the one-­house veto),



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Franklin (APA review of presidential action), and Seila Law (presidential right to remove officials for political reasons). Furthermore, the recognition of a broad presidential authority over foreign affairs has influenced implied powers cases dismantling presidential accountability domestically. In Nixon v. Fitzgerald, for example, the Court justified creation of a broad immunity from damages actions in part by citing the need to protect the President’s foreign affairs authority from judicial encroachment. The Franklin Court, in turn, cited Fitzgerald’s explanation of why the Court exempted the President from legal accountability instead of providing an adequate justification for its decision to exempt the President from APA review. The Court also stated in United States v. Nixon that executive privilege should be especially strong in cases implicating foreign affairs and national security. And in Seila Law, the Court cited the Framer’s desire for an energetic executive able to repel foreign attacks as a piece of the justification for granting him an unlimited removal authority for the single heads of government agencies.80 In other words, the Court’s tendency to augment presidential power across the horizontal dimension of separation of powers has supported its tendency to increase presidential power on the vertical dimension as well. Thus, the Court’s liberality toward implied presidential foreign affairs power has diminished executive branch accountability domestically by helping create an executive privilege, presumptively immunizing a President from damage actions, defeating a legislative veto, exempting executive orders from APA review, and authorizing politically motivated removal of agency heads even when Congress thinks it unwise or dangerous. The statutory cases conflict with the principle that Congress determines policy; at least with respect to foreign affairs and presidential accountability. The Court arguably has created super-­strong clear statement rules for enactments limiting the President’s actions in foreign affairs or holding him accountable for failing to faithfully and reasonably execute the law.81 Clear statement rules prohibit Congress from reaching certain specified results unless a statute clearly states that Congress intends that result. They often produce unnatural readings of broad statutory language. Such clear statement rules, as William Eskridge and Philip Frickey explain, reflect judicial value choices.82 The Court has not provided an explanation of the constitutional value choices underlying its clear statement rules expanding implied presidential power.83 Giving more weight to presidential actions than to statutes encourages unilateral presidential action rather than interbranch consensus. If a President can establish an authority by asserting it and then avoiding a congressional vote

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against the exercise of the authority or vetoing a measure seeking to rein him in, then he has no incentive to persuade Congress that his view is a wise one meriting affirmative endorsement or to modify his course of action in response to legitimate congressional concerns. The favoritism toward presidential action and against statutes restraining him also tends to expand the –­law free zone where a President can act unilaterally, thus undermining the rule of law. Chadha and Seila Law alone make presidential abuse of authority extraordinarily difficult to check and greatly weaken the rule of law, regardless of the decisions’ formal merits. Start with Chadha. The War Powers Resolution provides for a one-­house veto of presidential military actions, allowing Congress to check usurpation of its war power. With the courts refusing to enforce the War Powers Resolution, Chadha’s invalidation of the one-­house veto made the War Powers Resolution unenforceable, thereby completing the unconstitutional transfer of the war power from Congress to the President. Similarly, Congress has delegated vast emergency powers to the President with the understanding that the one-­house veto provided in many of the statutes would be available to check abuses. Chadha destroyed this restraint on abuse of emergency powers. Checking the most blatant abuse of broad delegated authority now requires a two-­thirds majority of Congress. As Justice White pointed out in dissent, the one-­house veto ensured that presidential policies that cannot command support from both houses of Congress cannot become law based on unilateral executive branch action under broadly worded delegations. The combination of broad delegation of authority to the President, extraordinary construction of statutes seeking to limit presidential power, and destruction of statutory mechanisms designed to limit abuse of power has dismantled many of the available checks on a presidential drive to autocracy. Seila Law provides the President with the right to remove single heads of agencies and perhaps others for political reasons. Chapter 7 discusses the implications in more detail. For present purposes, it suffices to emphasize that this case dismantles another check on abuse of presidential power. If a President wants the executive branch to undermine the law or to protect his own criminal conduct, he can simply fire those who will not cooperate. He also may be able to avoid the intended constraint of Senate approval of a substitute for a fired official by simply failing to nominate a successor with sufficient allegiance to the law to merit Senate approval. Thus, the Court’s creation of an implied presidential removal authority has undermined the check on presidential power embodied in the Appointments Clause.



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Chadha relies on formalist reasoning treating correction of abuses of delegated authority as legislation that must be subject to the bicameralism and presentment. Seila Law also relies on formalist reading treating removal as a presidential power that must be free of any congressional restraint. In the modern context of vast delegations of power to the executive branch, this approach creates a strong presidentialist system markedly different from the system the Founders adopted.84 In other words, this is a case where a plausible originalist interpretation of specific constitutional clauses clashes with the Founder’s broader intent to protect America’s democracy from authoritarian threats. The Court’s implied power jurisprudence also impaired congressional oversight, a check on presidential power since the founding. In United States v. Nixon, the Court resolved a clash between the judicial power to adjudicate criminal cases and the President’s power to get candid advice, because of the context in which the case arose. The privilege it created, however, has the potential to interfere with congressional oversight. The Court’s decision in Nixon v. Fitzgerald to immunize the President from implied damages actions also impaired congressional oversight.85 President Nixon had allegedly fired Fitzgerald for disclosing information about cost overruns for a transport plane, information useful for congressional oversight and responsible exercise of its spending authority. Accordingly, Fitzgerald sought damages for violations of statutes protecting communication of information to Congress. Yet, the majority did not consider the impact of its ruling on congressional powers of spending or oversight. The Supreme Court took another step weakening congressional oversight authority in Trump v. Mazars.86 Mazars arose from President Trump’s decision to violate constitutional custom requiring disclosure of a presidential candidate’s tax returns. Several congressional committees sought the disclosure of Trump’s tax returns and other financial information after he became President, apparently in an effort to evaluate possible presidential corruption and a desire to understand Trump’s ties with the Russian government. In the past, the Court had approved broad oversight authority over the executive branch of government, and the lower courts had relied on that authority to order disclosure of the sought information. But the Supreme Court rejected application of that precedent to the President. Instead, it required federal courts to critically scrutinize requests for a President’s financial records for their connection to a fairly specific legislative purpose.87 This will likely make future efforts to check presidential corruption dependent on the political views of federal judges. (On the same day, however, the Court allowed a state grand jury’s right to access to the President’s financial records).88

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The reasoning underlying many grants of implied presidential power has led executive branch lawyers to further erode checks on presidential power, often in ways that escape judicial review.89 The reasoning underlying United States v. Nixon’s creation of executive privilege led to creation of a DOJ policy against indicting a sitting President caught committing crimes, even crimes of a serious nature.90 Nixon bent formal rules governing subpoenas to protect the President from burdens that might distract him from carrying out his presidential duties. It was but a short step to protect the President from indictment during his term in office, which would presumably create greater burdens. Protecting the President from indictment, however, conflicts with the numerous statutes that express criminal prohibitions in general terms that apply to the President. While Congress could protect the President from indictment, it has not done so. The DOJ policy led Special Counsel Robert Mueller to decline to decide whether President Trump had committed obstruction of justice, since he felt bound not to indict him for the offense. This idea that the Constitution prohibits burdens on the President necessary to create a rule of law means, in effect, that even if an autocrat arises who serves a foreign power or runs the presidency as a criminal extortion racket, indictment might prove unavailable. The Court’s endorsement of the unitary executive theory promises to make Justice Department lawyers quite active in liberating the President from the rule of law by extending the logic of implied power grants in ways the President indicates that he desires. Congress is much more poorly positioned to identify and exploit potential extensions of grants of implied power because it is a collective body divided into two houses acting in public. The modern Supreme Court’s implied power jurisprudence usually favors enhancing presidential power at the expense of Congress. We can view the Court’s jurisprudence’s support for presidential over congressional power as an effort to adapt the Constitution to the needs of the last century, as the United States emerged as a global power, constructed a broad regulatory state, and then faced the issue of terrorism. The remainder of this book asks whether the Court must now adapt its reconstruction of the Constitution to the twenty-­first century need to resist authoritarian government. Doing so might require a return to the foundational principles undergirding the effort to establish a lone republic in a sea of monarchy.91 We begin by looking at how countries have lost democracies in recent times.

5

THE SPECTER O F D I C TAT O R S H I P Poland, Hungary, and Turkey

T h e or igi na l i n t e n t to craft an American Constitution preventing tyranny and the oath judges swear to support the Constitution give U.S. courts, as guardians of the law, a responsibility to contribute to defending democracy against autocracy. To defend democracy, the judges (and citizens) must understand how countries have lost democracies. When we think about losing democracy, we tend to imagine a sudden coup or revolution. But scholars studying democracy loss, especially losses in recent years, find democracies often undergo a gradual decline. In the opinion of one leading scholar, it often takes more than a decade before “the pretense of democracy and constitutional government disappears entirely.”1 For the United States, gradual decline leading to virtual destruction of democracy poses a more significant risk than a sudden coup. This chapter analyzes democratic decline in Hungary, Poland, and Turkey. Three lessons for presidential power jurisprudence emerge from this analysis. First, the chief executive drives the undermining of democracy.2 Second, bringing administrative functions under the control of the chief executive and his party paves the way for autocracy. Third, the chief executive’s use of emergency power can accelerate the establishment of autocracy and deepen its destructive power. All of this implies that strengthening a President through judicial creation of a wholly unitary executive and judicial enabling of emergency powers poses risks to democracy. These three claims and the analysis that follows blend previous work by comparative law and politics experts on the legal dimensions of democracy loss 95

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with detailed analysis of the chief executive’s role in democratic backsliding in Hungary, Turkey, and Poland. The general accounts indicate that the central lessons about the chief executive’s power over administration from these case studies likely apply to all countries experiencing democratic erosion, even though the details of the story vary in each individual case. Emergency power also can play a potent role in accelerating democratic decline, as the Hungarian and Turkish cases show. While these three claims receive more emphasis here than in other works because of this book’s focus on presidential power, none of them have been the objects of empirical disputes. This book draws on previous accounts of democratic decline in these countries as well as the more general political science literature both in fleshing out these claims and putting them in context. While abuse of the chief executive’s power plays a big role in destroying the rule of law and democracy, executive power does not constitute the only institutional means of subverting democracy. Indeed, the history of democracy loss suggests that centralized executive power usually leads to democracy loss when, as a result of heightened polarization, the leader’s party decides to support him uncritically and to override the rights of minority parties.3 When this happens, the autocrat dismantles checks and balances partly through partisan manipulation of legislative and constitutional processes, establishing firm control over the judiciary and administration. In making a comparison of this kind, one must understand the role that constitutional norms outside the constitutional text play in maintaining a democracy. All democracies depend on constitutional norms embedded in custom and written rules outside the constitutional text to keep democracy intact, not just formal constitutional provisions.4 Understanding the role of these informal constitutional norms facilitates comparison because sometimes an express constitution norm in one society plays the same role as an informal constitutional norm in another. For example, the United States has a customary norm against Presidents intervening in prosecutorial decisions. Poland’s autocratic government eroded its democracy by passing a legislative rule allowing its chief prosecutor to consult with the head of state (and other outside parties), about the treatment of pending cases, thereby changing the constitutional norm. When Hungary had a democratic government, its Constitution required a two-­thirds vote of Parliament to confirm a Justice on the Constitutional Court, which creates a practice of nominating Justices sufficiently neutral to command multiparty support. Before the nomination of Robert Bork to the United States Supreme



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Court, the United States had a similar informal constitutional practice, supported by a Senate rule effectively requiring two-­thirds support for approval of a Supreme Court Justice.

Democratic Erosion: Style and Substance While every story of democratic decline has unique aspects, comparative law and politics scholars describe key approaches that play a large role across countries. With respect to modern cases like those of Hungary, Poland, and Turkey, scholars emphasize that elected leaders establishing autocracy usually do so within established legal forms. They tend to rewrite laws (including constitutions) or break customary constitutional norms, rather than just ignore written law altogether. In the words of Kim Lane Scheppele, the “new autocrats look like democrats playing hardball.” The term “constitutional hardball” refers to the use of aggressive tactics to subdue opposition in achieving political objectives in a way that transgresses previous constitutional customs.5 Democracies depend significantly upon informal norms of forbearance, where political actors do not use all the powers formally at their disposal to achieve their objectives.6 When actors instead use every power available to them to get what they want—­lying, firing competent dedicated subordinates who disagree with them, denying minority legislators opportunities to meaningfully debate legislation, and fighting for unfair electoral rules (to mention a few examples)—­they are playing constitutional hardball. Too much constitutional hardball can erode or even destroy a democracy, but a certain amount of it exists even in well-­ functioning democracies, at least during times of great partisan division. Although new autocrats use legal forms to subdue democracy, Poland’s increasingly autocratic government has continued to implement its new laws even when the Constitutional Court declared them unconstitutional.7 Yet, even Poland’s autocratic government understands itself as proceeding legally. It often claims to comply with legal provisions, but deprives them of “traditional or even plausible interpretations of their meanings.”8 These hardball players frequently find precedent for their autocratic legal changes in one or another democratic country. By combining worst practices, tweaking them slightly, and employing discretionary authority creatively, they create an autocracy in ways that can escape the timely notice of many observers.9 The ordinariness of many measures establishing autocracy matters, because observers looking at a single measure with little understanding of how all the measures fit together and operate in practice can easily underestimate democratic

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erosion. Indeed, autocrats put into place a huge number of cumulatively significant measures with blinding speed in order to confuse and overwhelm potential opponents. At the same time, as the case of Turkey illustrates most dramatically, some obviously horrible things can happen after an autocracy becomes firmly entrenched. While the new autocrats relentlessly pursue their objective of establishing an autocracy, checks and balances occasionally limit them and cause at least tactical adjustments. Thus, for example, Hungary’s Constitutional Court struck down government regulation of the content of print media and the online press. The government relaxed the rules somewhat, but continues to regulate the more important mass media and bring individualized or less direct pressures to bear on print journalists. In Poland, President Andrzej Duda vetoed a controversial bill that would have ended the terms of all sitting Supreme Court Justices, but later accepted a bill that would replace almost 40 percent of the Justices, thus allowing capture of the Court by subtler means.10 When the European Commission (the administrative arm of the European Union (EU)), the Venice Commission (an EU advisory body supporting the rule of law),11 and the European Court of Justice disapproved of the forced retirement of judges, Jaroslaw Kaczyński’s government reinstated Supreme Court Justices, but started driving out unsupportive judges through disciplinary processes. A drive toward authoritarianism can succeed with some tactical adjustments and setbacks disguising the overall direction.12 This means democracy can be lost even when checks and balances sometimes operate. This adds to the difficulty of detecting serious threats to democracy in a timely manner. The style of numerous rapid changes, use of legal forms, and ruthless tactical adjustments to setbacks makes it difficult to detect and counter modern drives to autocracy. The substantive similarities apply to a broader range of countries than the stylistic similarities uniting new autocrats. Indeed, democratic theory suggests that the substantive similarities must play a role in all cases.13 Elections constitute a necessary condition for democracy, but not a sufficient condition. Russia and China have elections, but nobody characterizes these countries as democratic. Meaningful democratic competition, a real chance that people can “throw the bums out” and substitute new officeholders from another party, constitutes a key condition of democracy. The substantive similarities scholars identify across cases contribute to the defeat of meaningful electoral competition. In the new autocracy model (sometimes called “competitive authoritarianism”)14 elections continue, but in all autocracies little opportunity exists to disempower the autocrat and his party. Substantial



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impairment of genuine electoral competition therefore necessarily constitutes a key substantive component of autocratic efforts to subvert democracy. T I LT I N G T H E E L E C T O R A L P L AY I N G F I E L D

Elected chief executives leading autocratic parties establish rules and practices tilting the electoral playing field in their favor. In Hungary, Poland, and Turkey, for example, persecution of regime opponents, partisan gerrymandering, and manipulation of the right to vote sharply limited the electoral competition at the heart of a democracy. An autocrat can entrench himself in power without winning every election. Hence, even in Hungary and Turkey, which have strong autocracies at this point, opponents of the regime occasionally win elections. For example, opposition candidates won important mayoral races in Istanbul, Ankara, and Antalya in 2019. But the autocrats tilt elections in ways that make it virtually impossible for a mere majority of voters to win back control of the central government. In Poland, while democracy has eroded, the erosion has not gone as far as it has in Hungary or Turkey, primarily because Kaczyński has only been in power since 2015. Furthermore, the European Court of Justice has opposed manipulation of the Polish Constitution, and many Poles resist loss of liberty. Because democratic erosion offers a more subtle process for undermining democracy than a military coup and the new autocrats limit rather than completely destroy elections and opposition parties, scholars and other informed observers sometimes disagree about whether democracy has perished or just become weaker in some cases of democratic erosion. S H R I N K I N G T H E P U B L I C S PA C E

A second and closely related key component of destroying democracy involves shrinking the public space, making it nearly impossible for civil society to challenge the government effectively.15 The modern autocrats in these countries do not completely destroy free speech initially. But they lessen its value by asserting direct or indirect government control over the major media and limiting opposition’s access to the general public. They also find ways of intimidating and silencing many key dissenting voices. The Turkish case, however, shows that autocrats can criminalize dissent after undermining the independent media primarily through economic measures. They may limit public demonstrations. And they sometimes intimidate opposition by engaging in extensive government surveillance. All of these measures together limit and chill free speech.

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U N D E R M I N I N G T H E R U L E O F L AW

A third component involves an attack on the rule of law. As mentioned previously, the new autocrats in these countries rely on legal forms, so law continues to exist, just as it does in Russia or China. Indeed, as we shall see, modern autocrats in these countries often articulate plausible-­sounding, but often bogus, rationales for many democracy-­eroding legal changes. But a rule of law requires more than a mere collection of rules. Chapter 1 suggested that a rule of law requires checks and balances constraining abuses by the head of state. The rule of law in a constitutional democracy limits all government officials, not just private citizens. A rule of law also requires equal treatment under the law. If a country has laws on the books, but it only applies them to those opposing the government, law masks and legitimates autocratic rule. Legal principles appear to govern, but in fact, arbitrary decisions having little connection to the law’s stated goals control outcomes. These arbitrary decisions aim to enhance the power and wealth of the autocrat and his supporters, not to advance stated public interest goals. In countries that have a robust rule of law, nonpolitical actors, such as independent judges and civil servants, administer most of the law. In both Hungary and Poland, reformers constructing democracy in the wake of communism’s collapse created a powerful and independent judiciary. In Turkey too, efforts at democratic modernization involved creating an independent judiciary. Efforts to dismantle democracy attack the independence of the courts and the civil service. The suggestion that an independent civil service supports democracy may seem odd, as scholars find faceless bureaucrats making and administering law democratically problematic. But civil servants in functioning democracies usually work only in an assigned field and have a professional identity that makes them take technical argument and law seriously. Indeed, Max Weber considered “bureaucracy” the “purest form of legal authority” because civil servants derive their legitimacy from their fidelity to law.16 They may sometimes overreach in pursuit of their bureaucratic mission. But the denizens of programs establishing regulations and providing services to individual citizens do not have the platform, desire, inclination, or resources necessary to establish an autocracy. An independent and honest civil service usually makes the law’s administration somewhat dependent on expert and nonpartisan judgment. This independent judgment functions as an obstacle to autocratic rule. When independent civil servants do not administer the law, the authoritarian leader and his political supporters staff the government and use prosecution and



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administration as mechanisms of autocratic rule. As we shall see, the destruction of independent administration allows autocrats to persecute their political opponents, thereby aiding the project of limiting electoral competition, shrinking the public space, and substituting arbitrary actions for a rule of law. And this destruction allows the ruler to protect and benefit his political supporters, thereby entrenching himself and his supporters in power.

The Autocrat’s Role In Turkey, Poland, and Hungary (and almost all places whence democracy disappeared), a single elected leader drove the undermining of democracy. In Turkey, the Parliament selected Recep Tayyip Erdoğan as Prime Minister in 2002, and he became a popularly elected President in 2014. After fifteen years in office, Erdoğan pushed through a constitutional referendum to change to a strong presidential system and then ran successfully for the strengthened presidential post. He gradually weakened Turkish democracy over time (with an acceleration after 2016). In Hungary, Viktor Orbán, the Prime Minister, led the charge. He became Prime Minister in 2010 and established an autocracy over a ten-­year period, finally securing absolute power from Parliament in the midst of the coronavirus pandemic of 2020. The Polish case shows that an elected autocratic leader can undermine democracy even when he does not sit in the office of the formal chief executive. Analysts of the decline of Polish democracy do not identify the Polish Prime Minister or President as the primary source of democratic decline. Instead, they identify the head of the Law and Justice Party (called by the Polish acronym PiS), Jaroslaw Kaczyński, as the de facto head of state.17 But they describe the Prime Minister and President as “puppets” of Kaczyński. Hence, Kaczyński controls the executive branch of government in Poland. And they point out that in practice Kaczyński controls PiS, which controls Parliament. While Kaczyński and his supporters vilify Russian communism, Kaczyński’s government follows the communist model of autocracy based on having the head of a political party control the government.18 So, Poland presents a case of a de facto chief executive assuming too much power and subverting democracy. The fact that even a de facto head of state can effectively undermine the rule of law and checks and balances greatly strengthens the case that a head of state enjoying de jure authority can do so. After all, a de jure head of state may rely on formal legal authority in addition to the personalist and informal authority that a de facto head of state relies upon. Max Weber points out that heads of state may have weak allegiance to the rule of law because they possess “charismatic” (rather than bureaucratic) authority,

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created by generating personal allegiance rather than allegiance to the law. Weber cites the demagogue as one of the “purest types” of leaders who rely on charisma in lieu of allegiance to the law to rule. Populist demagoguery has played a large role in all of these cases. While academic definitions of populism vary, it might be defined as an approach where a leader castigates his opponents as elitists and claims to uniquely represent “the People.”19 All of these autocrats vilify their opponents as representatives of a failed elite, rather than representatives of at least some people having legitimacy within the polity. Kaczyński and Orbán virulently attack their opponents as “communists,” thereby associating them with traumatic events in these countries’ past.20 Erdoğan characterizes his opponents as unpatriotic and castigates them for supporting Israel, which he accused of “following in the footsteps of Hitler.” Both Orbán and Kaczyński define themselves as representing the authentic Christian culture of their countries and castigate their opponents as fundamentally disloyal. Orbán and Kaczyński also virulently oppose Muslim immigration and stir up fear and resentment against the tiny immigrant populations from Muslim countries living in their countries. Erdoğan demonizes the Kurds as terrorists, while defining himself as a defender of Islam. Demonization of some group of outsiders plays a key role in justifying autocracy. Even populist chief executives like Kaczyński, Erdoğan, and Orbán, however, cannot destroy democracy all by themselves. They demand and receive loyal backing from a majority political party, PiS in the case of Poland, Fidesz in the Hungarian case, and the Justice and Development Party (AKP) in the case of Turkey.21 And they move from that base to establish control over other institutions, most prominently the judiciary, which might otherwise check their power. They also establish effective control over administration. That control over administration constituted in all three cases (and many more) an important contributor to stifling electoral competition, shrinking the space for civic opposition, and undermining the rule of law.

Centralized Administration, Emergency Powers, and the Erosion of Democracy While all three autocrats undermined the civil service’s independence, the most radical example of creation of centralized administration undermining democracy comes from Turkey. A failed coup attempt against Erdoğan, widely attributed to the opposition Gulenist organization, enabled him to persuade a rattled public to pass a referendum in a tainted election granting himself nearly



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complete control over the executive branch.22 President Trump called Erdoğan to congratulate him on passage of this power-­consolidating Russian-­style constitutional overhaul.23 These constitutional amendments give the Turkish President the authority to “unilaterally remove all cabinet members and heads of all administrative agencies.”24 They allow him to appoint half of the members of the Constitutional Court, the Council of State (Turkey’s highest administrative court), the Supreme Board of Judges and Prosecutors, and the Higher Education Council.25 They combine these formidable powers with an authority to issue executive orders that have the force of law on all “subjects necessary to execute the law.”26 Erdoğan’s constitutional amendments create centralized administration closely resembling the unitary executive model that American unitarians promote.27 Emergency powers played a key role in accelerating the establishment of presidential control over administration in Turkey. Erdoğan used them to justify detaining 2,777 judges and prosecutors, 6,823 soldiers, and dozens of governors. He removed 130,000 civil servants, military lawyers, and judges from their positions during the two-­year state of emergency. This attack on the civil service and judicial independence accelerated the establishment of presidential control over administration, which Erdoğan had pursued diligently for many years prior to the coup. Erdoğan also used the emergency to justify attacks on independent academics by accusing critics, or even just advocates of peaceful conflict resolution, of aiding Gulenist terrorism. Attacks on academic freedom help autocracy by undermining the very idea of truth, enabling autocrats to manufacture myths to justify their power without regard to fact.28 The regime removed more than six thousand academics from their posts and incited violence against them by verbally attacking them and promulgating an executive decree immunizing those fighting “continuation of the coup attempt” from prosecution.29 The regime also restricted travel. These measures combined with prosecution on terrorism charges beginning in 2016 substantially limited academic freedom in Turkey. Thus, Turkey responded to a real emergency by seizing powers to severely undermine democracy after the immediate threat had passed. Viktor Orbán in Hungary created a fake emergency to help bolster attempts at using an influx of immigrants as a rationale for seizing power. Orbán first declared a state of emergency in September of 2015 to give additional powers to the police and to use the army to take harsher measures to limit immigration.30 Hungary established razor-­wire fences stopping almost all immigration, even

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though most migrants coming into Hungary merely traversed the country on their way to Western Europe.31 Police reportedly treated immigrants violently, and the Hungarian measures created poor conditions in transit zones where the government forced asylum applicants to wait pending processing of asylum applications.32 Orbán justified his invocation of emergency powers by claiming that Muslim immigration threatened the survival of “Christian Europe.”33 He has also cited a threat of terrorism, even though “militant fundamentalism” has never taken root in Hungary. He invoked emergency powers again in March of 2016, when neighbors’ decisions to close their borders created a possibility of increased migration to Hungary.34 Orbán’s government extended the emergency in August of 2017 and yet another time in September of 2018, even though the numbers of immigrants seeking to pass through Hungary (or for that matter, to come to Europe) dropped drastically after 2015.35 In 2020, Orbán used the coronavirus pandemic to end democracy in Hungary outright, possibly permanently.36 He obtained emergency powers from the Parliament in an Enabling Act that ends elections and allows Orbán to rule by decree without regard to preexisting law. In its wake, the military has seized control over hundreds of companies and taken command of hospitals. Orbán sought passage of the Enabling Act to circumvent fixed time limits on his emergency powers. While the Enabling Act powers formally terminate with the end of the emergency, analysts note that the unchecked head of state gets to decide when the emergency will end and liken this to the delegation of emergency powers to Adolph Hitler, which had firmer restrictions as a matter of formal law.37 Prior to 2020, Orbán and Kaczyński undermined their respective civil services’ independence without direct reliance on emergency powers. These East European autocrats, however, did seek to stoke popular support for centralized control over administration by railing against immigrants, portraying themselves as the true nationalists and, in typical populist style, vilifying the opposition. Viktor Orbán consolidated power by taking control of prosecution, the bureaucracy overseeing the media, the electoral commission, and the taxation authority.38 He removed opposition figures and neutral experts from public institutions.39 To accomplish this, he secured amendments to the labor law protecting the civil service, implementing the key reform advocated by unitarians—­provision for at-­will removal of government employees.40 With that accomplished, “critics of the Hungarian government” began to lose “their jobs at an astonishing rate.”41



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Kaczyński’s PiS party likewise consolidated his power by establishing control over prosecution, the media regulatory authority, the electoral commission, and the taxation authority. He also gutted the civil service. Article 151 of Poland’s Constitution requires a “professional” civil service to “ensure . . . impartial and politically neutral” administration. Poland’s Constitutional Tribunal has interpreted this provision as requiring statutory procedures to prevent any political interference in the civil service and therefore required a recruitment process based on objective criteria “free from any suspicion of partisan bias.”42 Nevertheless, the government rammed a Civil Service Act enhancing political control of the civil service through Parliament shortly after it took office. The new Civil Service Act provides for at-­will removal, exemption of the top posts from an open competitive process, and lessening or eliminating requirements for experience.43 This law, in combination with others, paved the way for the Kaczyński government to sack more than eleven thousand civil servants, many of which it regards as “enemies of the state.”44 Kim Lane Scheppele explains that the new autocrats generally avoid gross, massive, and violent human rights violations in favor of using economic repression to consolidate their power and control opposition.45 The creation of centralized control over the executive branch plays a key role in jump-­starting this process. Firing civil servants in large numbers sends a powerful message that opposing the government can imperil one’s livelihood. The Orbán government amplified this message by pressuring private firms to fire opponents of the regime, primarily by signaling firms that they must cast out dissidents to obtain state contracts.46 Economic repression creates fear, which makes it easier to create further economic pressures to avoid opposing the regime. Bearing in mind that moving toward a centralized executive branch can pave the way for establishing a generalized climate of fear useful for establishing an autocracy, the material below focuses on how the leader’s control over the prosecutor’s office, the media authority, and the electoral commission advances autocracy. This narrow institutional focus facilitates a cogent look at the links between the creation of central control of administration and the key substantive elements creating an autocracy—­reducing electoral competition, shrinking the public space, and impairing the rule of law—­without the distraction of an overly complex discussion of all agencies that might help achieve those objectives or help create autocracy through other means. This limited approach, while useful for establishing basic links between centralized control over administration and democracy destruction, illustrates the problem rather than providing

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a comprehensive account of the myriad ways that centralized control of administration can undermine democracy. PROSECUTION SIDELINING OPPONENTS, SHRINKING THE P U B L I C S PA C E , A N D U N D E R M I N I N G T H E R U L E O F L AW

These new autocrats, like the old ones, compromise the prosecutors’ independence and assert political control over the prosecutor’s office. When this happens, prosecutors become useful instruments in carrying out several of the tasks necessary to democracy destruction. In Hungary, Orbán secured the resignation of a respected chief public prosecutor, probably by blackmail. Orbán then replaced him and his subordinates with loyalists. Through constitutional amendment, Fidesz put itself (and therefore Orbán) in charge of selecting the chief prosecutor, by getting rid of the requirement for multiparty support from Parliament (a requirement of two-­thirds approval of Hungary’s unicameral Parliament).47 It then passed “transitional provisions” giving Orbán’s chief prosecutor the power to control case assignments. This ensured that an Orbán-­approved prosecutor could control the exercise of prosecutorial authority in key cases. Poland’s leader also subverted the political independence of prosecutors.48 Legislation passed on January 28, 2016, accomplished this politicization by merging the positions of Minister of Justice and the Prosecutor General, bringing both under the control of Kaczyński’s Minister of Justice, Zbigniew Ziobro (a leading politician).49 The new legislation assigns this Minister comprehensive power to reassign cases among prosecutors and give orders in specific cases, a striking departure from democratic norms prevailing in Europe’s parliamentary democracies.50 It also breaks down the tradition of walling off prosecution from control of the de facto head of state, by explicitly allowing the Justice Minister to share information with outside parties. This provision legitimized Ziobro’s prior practice of consulting with Kaczyński about ongoing investigations and prosecutorial decisions.51 The government justified these measures on efficiency grounds, but the time spent on pretrial investigations has increased since Kaczyński established political control over prosecution.52 Even before the 2016 military coup, Erdoğan took steps to establish central control over prosecution. He began to change the mechanisms for prosecutorial control through a 2010 constitutional amendment (approved in a referendum) restructuring the High Council of Judges and Prosecutors (HSYK), which appoints and disciplines prosecutors (and judges).53 In order to curtail investigation



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and arrest of AKP members for corruption, including high-­ranking government officials, Erdoğan started attacking the prosecutors verbally and then brought them under the control of the central government beginning in 2013. He did this partly by curtailing the power of prosecutors to secure police support for investigation independently. Erdoğan then transferred prosecutors (and judges) away from the corruption cases and brought the HSYK under the control of political appointees. As we have seen, Erdoğan used the coup to replace career prosecutors with loyalists in huge numbers, thus completing the establishment of a key element of presidential control. Once the head of state has effective control over prosecution, he can use this power to tilt electoral competition. Government prosecutors attack the regime’s opponents and protect its supporters. The forms these attacks take vary based on national law and culture, but in all cases centralized control over administration paves the way for selective prosecution to undermine electoral competition. In Hungary, Fidesz prosecutors have used the law as a political weapon by charging opposition politicians with corruption.54 The prosecutor’s office announces and publicizes prosecution at times calculated to influence elections. The government usually drops the charges after the election, but charging a politician with corruption often suffices to end her career. At the same time, Fidesz corruption almost never triggers prosecution.55 Turkey’s prosecutors sideline the regime’s political opponents with different techniques.56 Prior to the coup, they usually charged Erdoğan’s opponents with minor crimes unrelated to elections. The prosecution focused on laws that many people violate in Turkey, such as building codes and tax laws. With increasing frequency, especially after the coup, they arrest political opponents for supposedly supporting terrorist groups.57 Erdoğan’s prosecutors also detained at least eighteen people charged with insulting the President, a crime carrying a prison sentence of up to four years in Turkey but never generating detentions under Erdoğan’s predecessor, Abdullah Gul.58 Turkey also uses prosecution as a weapon to shrink the public sphere. The government arrested five hundred defendants in 2007, including some journalists, and charged eighty-­six of those arrested with plotting a coup. The court of appeals, however, dismissed those charges for lack of evidence in 2016. The government sued journalists and other critics for libel. The costly lawsuits had a chilling effect, as journalists self-­censored to avoid civil suits and, later, criminal prosecution for libel. The government also levied a $2.5 billion fine against the Dogan Yayin media conglomerate, which forced it to sell off important media

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outlets to groups aligned with the government.59 Since the coup, Erdoğan’s government has become the world’s leader in jailing journalists, with emergency powers and its grip on the courts facilitating the repression of opposition journalism.60 Centralized control of prosecution also contributed to shrinking the public space by persecuting academics. We have seen that Erdoğan’s prosecutors persecuted academics on various charges of helping support “terrorism,”61 especially after the 2016 coup. The Turkish courts, however, pushed back in 2019. Many of those prosecuted and dismissed from their posts had signed a 2016 petition protesting heavy-­handed army tactics in predominantly Kurdish areas. The government tried 452 of the 2,200 signators on terrorism charges, but in 2019 the Constitutional Court reversed the convictions on free expression grounds. While Poland has only recently centralized prosecution, already some signs indicate that Kaczyński may likewise exploit his control over the public prosecutor to shrink the public sphere, as he has begun to use prosecution as a weapon against political opponents. The Public Prosecutor launched a criminal investigation against Andrez Rzeplinski, the former head of the Constitutional Court, for “abuse of power.” The alleged “abuse” involved resisting PiS’ court packing. Similarly, the Minister of Justice threatened to prosecute professors and Ph.D. students who criticized revisions to the Criminal Code. The revisions in question protect government officials in control of certain state-­owned companies from corruption prosecution in a bill advertised as enhancing penalties for corruption.62 The Minister abandoned this gross invasion of free speech fairly quickly, but still, the announcement served as a warning that anyone criticizing the regime too effectively risked prosecution. Kaczyński’s government has brought at least one libel action to silence critical media.63 But the government backed away from some repressive measures under pressure from the European Court of Human Rights as well as Polish courts and prosecutors. Hence, in Turkey and Hungary establishment of the chief executive’s effective control over prosecution undermined the rule of law. It led to selective enforcement where law functions not as a set of general principles limiting everybody’s conduct, but as a source of power to sideline opponents. The regimes use prosecutorial power not to implement a rule of law, but to tilt electoral competition in favor of the chief executive and his party and often to shrink the space available for criticizing and opposing the government. In Poland, recently centralized control of prosecution has not destroyed the rule



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of law as of this writing, but the regime has already signaled its intent to use Kaczyński’s enhanced control over prosecution to persecute enemies and to punish dissent. ENDING INDEPENDENT ELECTORAL C O M M I S S I O N S I N O R D E R T O T I LT E L E C T I O N S

Most successful democracies around the world use independent electoral commissions to administer elections. By not allowing a single leader or political party to control electoral administration democracies provide an important structural safeguard to ensure free and fair elections. Since autocrats want to tilt the electoral playing field, they compromise electoral commissions’ independence, allowing the autocrat to control them, either directly or indirectly. In Hungary, under the pre-­Fidesz system, the Election Commission resembled the FEC and the electoral commissions in many U.S. states, in that it contained people from more than one political party. Each of the five leading parties in Parliament controlled one seat, and the parties filled the remaining seats by mutual agreement.64 Fidesz terminated the mandates of members slated to remain through 2014 and replaced the members formerly chosen by agreement among the parties with its own members.65 This arrangement allowed Fidesz to defeat a key mechanism for challenging its monopoly on power, a referendum. Under Hungarian law, the Electoral Commission must certify a referendum before placing it on the ballot, and the Fidesz-­controlled Commission has blocked this avenue of challenging the ruler’s power.66 Blocking a referendum entrenches the government, as a rebuke of a government through a referendum in Hungary had provided a means of bringing down the government.67 A similar effort to bring the administrative apparatus supervising elections and funding political parties under the control of PiS and therefore Kaczyński lies at the heart of the Polish government effort to tilt the rules of electoral competition.68 Prior to Kaczyński’s ascent, Poland’s National Electoral Commission, which supervises Polish elections, consisted of judges, selected by fellow judges, an arrangement well designed to prevent a single party from rigging elections.69 PiS, citing “monstrous” irregularities in elections that it kept losing, passed a bill giving the Kaczyński-­controlled lower house of Parliament the right to select the vast majority of members of the electoral commission.70 The new law also authorizes commissioners indirectly controlled by PiS to gerrymander election districts.71

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Turkey also interfered with the independence of its electoral commission, the Supreme Board of Elections (SBE) (a group of judges as in Poland) and lower-­ level administrative bodies. AKP replaced 8 of the SBE’s 11 members (placing three in custody) and 221 “lower-­level election board chairpersons” (placing 67 in custody).72 It also placed over 500 electoral board staff in custody.73 The AKP-­dominated SBE invalidated the election of an opposition candidate as mayor of Istanbul in 2019 based on the claim that civil servants did not run the elections. The board did not apply this freshly minted principle to elections won by AKP. This gambit, however, did not prove successful, as the opposition candidate won the rerun by a wider margin. Sometimes, as in Turkey, the autocrats rely upon their control over electoral agencies to do almost all of the dirty work. In those cases, a chief executive’s effective control of the executive branch provides the primary means of tilting elections. In Hungary, however, Orbán’s ability to secure partisan legislation played an even larger role than his executive power.74 The Orbán-­controlled Parliament heavily gerrymandered legislative districts and passed laws making it hard for ethnic minorities and those fleeing the regime to vote, while authorizing and facilitating voting among supportive ethnic Hungarians living in countries near Hungary. The heavy gerrymandering permitted Fidesz to obtain about 69 percent of the seats in Parliament with only about 45 percent of the vote.75 Turkey employed a legislative gerrymander as well, but it does not appear to have had a large impact on electoral results. Even when the Parliament passed legislation tilting elections, the partisan electoral commissions made their own contributions to the project. In Turkey, the electoral commission disobeyed Turkish law by accepting unstamped ballots in the referendum establishing authoritarian rule. Fraud and interference with civil liberties during the state of emergency also contributed to this narrow victory for autocracy. In Hungary, the partisan Electoral Commission sent out confusing information to groups likely to vote against Fidesz while making it easy for groups thought supportive of Fidesz to vote.76 Thus, centralized control over administration regularly contributes to tilting the electoral playing field, as electoral commissions brought under the political control of the autocrat’s party shape the electorate to tilt electoral outcomes in the autocrat’s favor. But legislating unfair electoral rules also plays a role, especially in Hungary. Thus, autocrats tilt the electoral playing field by exercising both executive authority and informal legislative authority.



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S U P P L A N T I N G I N D E P E N D E N T M E D IA AU T H O R I T I E S I N O R D E R T O S H R I N K T H E S PA C E F O R D I S S E N T

Hungary, Poland, and Turkey, like most democratic countries, established formally independent media regulators. To prevent a single ruler and his party from capturing media regulation, they established mechanisms to ensure multiparty representation on their media councils. The new autocrats’ political parties brought the administrative agencies regulating the media under the chief executives’ control after amending the media laws to allow their party to select all or most of the councils’ members. Their supporters then used the media authorities to shrink the public space for opposition. Orbán’s media council exploited authority to levy hefty fines on broadcast media for failing to provide “balanced” news coverage to intimidate opposition media.77 The media council also fired unsympathetic journalists employed in public broadcasting and cancelled long-­running shows with perspectives at odds with the Orbán government.78 The Orbán government allocates digital, terrestrial, and cable frequencies, and crucial state advertising dollars based on political criteria. The media council also declined to renew the broadcast license of the country’s only private FM radio station, denies licenses to new applicants likely to be critical of the regime, and subjects online media to content restrictions. All of these measures have created a juggernaut propagating state propaganda.79 On the other hand, Orbán has interfered with the media council’s independence even though Fidesz controls it in order to exert yet greater control over the media. In November of 2018, owners of media outlets donated 476 television and radio stations to a nonprofit foundation promoting “Christian and national values.” When opposition groups challenged the foundation for violating national media laws, Orbán defeated the media council’s jurisdiction over the foundation.80 By 2019, few media outlets remained independent beyond a handful of websites in Budapest.81 Similarly, Turkey’s AKP-­dominated Supreme Council of Radio and Television (RTUK) supplemented prosecution of journalists with broader attacks on media organizations. That body issued fifty warnings and 112 fines against television channels and seven warnings and 11 fines to radio stations under very broad laws in 2016 alone.82 In the wake of the coup, this body closed two dozen television and radio outlets in the same year. The government also ordered the closure of fifty newspapers.

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Turkey has a Directorate General of Press and Information that controls press accreditation necessary for access to the Prime Minister and his press office. In 2015, the government brought this organization firmly under Erdoğan’s control by reducing the number of seats held by media representatives from more than 50 percent to a third. In the crackdown after the coup, the Directorate revoked nearly eight hundred press cards. Turkey also centralized procurement at the highest level of the executive branch. Erdoğan’s government used this authority over procurement to bring additional financial pressures to bear in its drive to suppress dissent and support sympathetic media. A few large holding companies that earn a majority of their revenue in construction, energy, mining, and financial services own most of the important private media properties in Turkey. Erdoğan’s government uses government procurement and licensing to punish dissent and put important media assets in friendly hands. For example, the government determined which holding company would purchase the Sabah-­ATV media group in exchange for a multibillion-­dollar airport construction contract. It also withholds state advertising from critical outlets, pressuring them to fire critical journalists. Purges of journalists insufficiently supportive of Erdoğan through prosecution and financial pressures put ten thousand journalists out of work by the end of 2016, according to the Turkish Journalists Association. Kaczyński’s centralization of control over media regulation has converted public broadcasting into a state tool of propaganda reminiscent of the communist period. Although the Constitution vests the formally nonpartisan National Council of Radio and Television Broadcasting (Broadcast Council) with the authority to appoint public broadcasting managers, PiS passed a “small media law” ending the terms of the incumbents prematurely and moving the appointment authority for managers to the Secretary of the Treasury. This Kaczyński supporter then replaced the management of public broadcasting with strong supporters of the government. These changes led to the replacement of some two hundred journalists from public broadcasting with far right journalists.83 While Poland never had a fully independent public broadcasting service, the structural changes have effected an extreme capture of public broadcasting. The government justified its approach by citing the need to “depoliticize” the airwaves. Poland’s Constitutional Tribunal held the Small Media Law’s provisions consolidating central control over appointment and removal unconstitutional under the Constitution’s provisions establishing the Broadcast Council’s power over public broadcasting and its mandate to preserve free speech and freedom



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of information.84 This ruling acknowledges that changes in structure lead to infringements of liberty, echoing the belief of our founding fathers and our Supreme Court.85 Kaczyński’s PiS party defied the ruling and passed legislation establishing a Council of National Media in order to supplant the constitutionally established independent Broadcast Council.86 President Duda and the PiS majority in Parliament have appointed the majority of the Council of National Media, which now oversees public broadcasting and has authority to continue the purge.87 In a bizarre example of what can happen when an autocrat exercises too much control over administration, the Kaczyński government’s politicized public television service turned around and filed lawsuits against Polish Ombudsman Adam Bodnar and law professor Wojciech Sadurski for accusing the service of hate speech in connection with the assassination of the mayor of Gdansk. Bodnar won his case in court, but as of this writing, the suits against Sadurski, one of which makes criminal charges, remain pending.88 The courts, however, rejected a similar defamation suit brought against Sadurski by PiS itself. Thus, centralized control over the management of public media has led, albeit indirectly, to the state broadcasting service becoming an organ working to suppress speech. While the courts may well dismiss the remaining lawsuits, even unsuccessful prosecution can chill free speech. Kaczyński, like Erdoğan and Orbán, also had his government use economic measures to bolster sympathetic media and discourage criticism.89 Kaczyński’s regime cut off public advertising and other income sources from critical media outlets, whilst paying for advertising in sympathetic private media outlets. And the Broadcast Council has acted to chill speech by levying a substantial fine on a television station for reporting on demonstrations around Parliament. When the television station threatened to go to court the Broadcast Council withdrew the penalty, but the threat sent the message that journalists that would dare to cover anti-­PiS activity place them themselves at risk. PIS also has limited journalists’ access to Parliament in some cases. U N D E R M I N I N G T H E I N D E P E N D E N T J U D I C IA RY

Both Poland and Hungary established highly respected constitutional courts as bulwarks to protect their new democracies after the collapse of communism. They also established independent lower courts. Turkey’s courts also enjoyed some independence; we have already seen that they occasionally checked some of Erdoğan’s efforts to prosecute opponents.

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In Poland and Hungary, the heads of state sought to create a judiciary that would cease to check the autocrat’s initiatives or, better yet, enhance the regime’s legitimacy and therefore its power by approving them. Erdoğan also appoints key supporters to judicial posts and ousts judges who may threaten him, thereby undermining judicial independence.90 Chief executives attacked judicial independence in part because doing so helped legitimize actions establishing their control over administration, which creates an autocracy. For purposes of drawing jurisprudential lessons about the unitary executive potentially useful to the United States federal courts, the key story involves the lower courts. The President of the United States clearly has the power to nominate Article III judges, including Supreme Court Justices, so that presidential use of nomination for political purposes does not pose a constitutional issue there (although this arrangement can create problems for democracy to be mentioned later). But the question of who controls Article II administrative law courts remains a live issue of presidential power jurisprudence.91 These courts have enormous influence. They adjudicate cases establishing immigration status, tax liability, regulatory compliance, and rights to public benefits. Congress generally lodges administrative law judge (ALJ) appointments somewhere within the agency administering the statutes creating the claims that need administrative adjudication. And the ALJs enjoy substantial civil service protections, so that the agencies they serve can only remove them for cause. The design, in short, seeks to create independent expert adjudication insulated from political influence. Hungary, Poland, and Turkey developed constitutional mechanisms to prevent a single leader or his party from controlling the appointments process for lower courts, some of which have jurisdiction over administrative law cases. Hungary adopted a constitutional amendment in 1997 creating a judicial council to control the nomination process in response to criticism of a holdover provision from the communist period allowing the Minister of Justice to appoint lower-­court judges.92 The Polish Constitution likewise contains strong mechanisms preventing politicization of the judiciary. It establishes a National Council of the Judiciary, which has the power to nominate candidates for judicial positions and to govern judicial operations in order to ensure the judiciary’s independence.93 This Council consisted primarily of judges, mostly elected by the judiciary, but also included six parliamentary representatives. Turkey had a roughly similar system prior to 2017. Its Constitution established a Supreme Board of Justices and Prosecutors to appoint judges to Turkey’s high court and its Council of State.94 Turkey’s leaders changed this system repeatedly from the



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time of its introduction in 1961 until the present day, and it has rarely, if ever, wholly insulated the courts from the ruling party’s influence. While the judicial selection systems vary in detail (and sometimes over time), all three countries used a model based on substantial judicial control or influence over judicial appointments and discipline to ensure the independence of judges (excepting the constitutional courts). The new autocrats ended judicial self-­government arrangements to pack the courts with their supporters.95 Orbán’s government created a National Judicial Office headed by a Fidesz loyalist and empowered her to control judicial promotion, the assignment of cases, and, to a large degree, the selection of judges. By combining these powers with a lowered retirement age, Orbán substantially eroded the independence of the lower courts. In December of 2018, however, Orbán’s government went further. It created a new “administrative court” system with jurisdiction over elections, asylum, police decisions about permits to assemble, taxation, building, the media, and market competition. The government justified this sudden and drastic reform on the grounds of enhancing efficiency and expertise, but the Venice Commission noted no problems with review of administrative decisions in Hungary crying out for a reform.96 The new law gives Orbán indirect control over the appointments by generally lodging the appointment power in the Minister of Justice.97 This law offers a potent tool to tilt the electoral playing field, shrink the public space, and deny redress when the government uses licensing as an economic tool to help its supporters and hurt its detractors. The government had planned to start using this system in 2020, but abandoned the plan in response to the Venice Commission ruling and the resulting threat to expel Fidesz members of the European Parliament from the influential European People’s Party Group.98 The immediate post-­communist period in Poland produced a right to appeal a government body’s decision directly to an administrative law court.99 A constitutional amendment in 1997 authorized the President to appoint the President of the Supreme Administrative Court to a six-­year term from nominees provided by a general assembly of administrative law judges.100 Kaczyński’s government passed much-­criticized statutes that paved the way for packing the ordinary courts and the Supreme Court with Kaczyński‘s supporters.101 These statutes, however, did not restructure the administrative law courts in Poland. Their lowering of the retirement age, however, affected forty-­ two Supreme Administrative Court judges.

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These statutes ended the autonomy of the nominating body of ordinary and Supreme Court judges, the National Council of the Judiciary (KRS), and retired sitting judges early whilst granting the PiS allied Minister of Justice authority to extend the new retirement age for judges aligned with the regime.102 In response to numerous decisions of EU institutional bodies, including a ruling from the European Court of Justice, against the forced early retirement of Supreme Court judges,103 the government reappointed the Supreme Court judges it had retired, but began to use disciplinary procedures against judges critical of the government.104 The disciplinary proceedings focus not on the sort of recent judicial misconduct that sometimes gives rise to disciplinary proceedings in robust democracies, but rather on the ties of older judges to the communist regime that perished some thirty years ago and on rulings protecting defendants’ rights.105 Poland has generally justified its attacks on judicial independence in terms of the need to rid the judiciary of former communists and enhance efficiency. On the efficiency front, an EU report shows a dearth of data found in most other EU countries on systems to monitor and relieve case backlogs, but suggests a mild decline in efficiency under the new regime.106 This same regime may interfere with independent adjudication of some administrative law claims, as the Supreme Court has jurisdiction over electoral cases, social security cases, and labor cases.107 The jurisdiction over election cases implies that the court packing may help tilt the electoral playing field, and one of the new statutes adds politically appointed lay members to the judicial chamber hearing those disputes.108 We have already seen that Erdoğan ended the independence of the Council of State, Turkey’s highest administrative law court. He did this through both constitutional amendment and abuse of emergency powers. A 2017 constitutional amendment brought the council appointing the main judges under the control of Erdoğan and his AKP party by vesting some appointments in President Erdoğan and others in the Parliament. Having brought the council under control, Erdoğan issued a state of emergency decree authorizing the council to dismiss judges viewed as part of the opposition as national security threats. This led to the removal of 4,279 judges and prosecutors through October 2017. Thus, all of these autocracies found impairment of the independence of the courts that review agency actions (and other lower courts) through indirect control of the head of state important in establishing an autocracy. The story of the destruction of the constitutional courts in Poland and Hungary, and to a large extent in Turkey as well, merits retelling here even though



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comparative law scholars know it well. The story’s relevance to presidential power stems from the role efforts to establish the chief executive’s control over courts play in facilitating presidential control over administration. The story also has some relevance to a question that will arise in Chapter 7: can the judiciary check an autocrat? Furthermore, Chapter 6 discusses the extent to which U.S. democracy has eroded in ways similar to those occurring in these countries, so that comparing this story of judicial decline with the U.S. story will help round out the picture. In Hungary, Poland, and Turkey, autocrats eroded the Constitutional Courts’ independence by securing appointment of judges aligned with their own party and likely to support the autocrat’s “reforms.” To do this, they destroyed constitutional traditions of nonpartisan appointment and shortened appointment terms to retire judges insufficiently supportive of the regime’s measures early. Orbán destroyed the independence of Hungary’s highly respected Constitutional Court using these methods. To do this, he had Fidesz amend the Constitution to abolish the constitutional requirement that two-­thirds of the Parliament approve of nominees to the Constitutional Court, which had in the past ensured that members of the Court commanded multiparty support. His party then approved supportive judges through lockstep party-­line votes.109 Fidesz also passed legislation expanding the Court’s membership, thereby giving it an opportunity to appoint more judges aligned with Orbán.110 And Fidesz lowered the judicial retirement age in order to purge the Court of jurists who might check its efforts to consolidate Orbán’s control. Hungary also relied on jurisdiction stripping to emasculate Hungary’s Constitutional Court. “Abstract review” of constitutional law questions—­review at the behest of parties who have not suffered an injury—­had facilitated judicial review of separation of powers cases and helped make the Hungarian Constitutional Court a highly respected guardian of Hungarian democracy. One of the jurisdiction stripping moves required the Hungarian Court to authorize judicial review solely at the behest of parties who suffered concrete injuries.111 While the U.S. courts themselves have created a similar rule against abstract review, it was not part of Hungarian practice. In the Hungarian context, this rule probably makes separation of powers cases unreviewable.112 Fidesz also stripped the Constitutional Court of jurisdiction over budget and tax cases.113 In Hungary, emasculating the Constitutional Court served as an essential first step to pave the way for actions entrenching Orbán in power. Many of these actions involved establishing Orbán’s effective control over not only the

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Prosecutor’s Office, the Media Authority, and the Electoral Commission, but also the State Audit Office, the Budget Council, the national bank, and the ombudsmen charged with preventing human rights abuses. Kaczyński mounted a very similar attack on the independence of Poland’s esteemed Constitutional Court. For example, it drastically limited abstract review, making it available only with the concurrence of thirteen of the Constitutional Court’s fifteen Justices.114 In response to the outgoing party’s attempt to tilt the Court its way by approving more new Justices than needed, President Duda declined to seat the last appointees of the outgoing government and PiS packed the court with its own supporters. Once PiS had captured the Constitutional Court, it reinstated abstract review, as Kaczyński now had nothing to fear from that quarter.115 The politicization of the Constitutional Court had converted it from an impediment to authoritarian rule to an active enabler of PiS and its campaign to make administration subordinate to its leader.116 The Constitutional Tribunal just prior to its destruction invalidated the small media law’s provisions governing the management of public broadcasting, but the regime declined to publish the ruling until forced to do so by pressure. Capturing the Constitutional Court paved the way for supplanting the constitutionally established Broadcast Board with the PiS-­controlled Council of National Media, passing legislation establishing control over prosecution and reconstituting the electoral commission. The opposition did not challenge any of this legislation in spite of likely constitutional infirmities, because it considers the Constitutional Court a lost cause. Turkey presents a more complicated path to a similar result of placing sympathetic judges on the Constitutional Court. Turkey established a system providing for substantial independence of the Constitutional Court in 1961 (albeit with some institutional bias in favor of the military) by allowing judges to appoint the majority of Justices.117 In 1982, the military secured a constitutional amendment giving the President the power to appoint members of the Constitutional Court, but keeping the nomination power primarily in the judiciary.118 In 2010, Erdoğan’s AKP secured passage of a constitutional amendment increasing the President’s power over appointments to the Constitutional Court. Erdoğan’s constitutional amendment did this by expanding the size of the Constitutional Court by more than 50 percent. It gave the President the appointment power for twelve of the judges, allowing Parliament (also controlled by Erdoğan) to appoint the remaining three. This formal diversification of appointment power (which previously had been lodged in Erdoğan exclusively) disguised the real sources of increased presidential control of the new appointees, the increase in vacancies to



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fill, a diversification of the groups making nominations, and requirements that the judicial bodies involved nominate three candidates for each post from whom the political authorities could select the appointees.119 The 2010 constitutional amendment also eroded judicial independence by limiting the tenure of the Constitutional Court’s Justices to a twelve-­year term.120 These structural changes shifted the Court’s ideology in ways favoring Erdoğan’s positions.121 Immediately after the coup, Erdoğan issued an emergency decree authorizing the Court to purge itself of dissident members, and by unanimous vote the Court removed two Justices, thereby further tilting the Court toward Erdoğan.122 The Constitutional Court then aided establishment of presidential control over administration. Erdoğan took advantage of the coup to promulgate emergency measures increasing his control over the Council of State and abrogating its nonbinding prepromulgation review of administrative regulations promulgated by the whole cabinet. The Court reversed a prior ruling claiming a power to review emergency decrees’ relationship to a declared emergency in order to allow these abuses of emergency power to stand.123

On the Role of Legislation and Constitutional Amendment The autocrats in Hungary, Poland, and to some extent Turkey created centralized administration and impaired judicial independence through legislation and, in Turkey and Hungary, constitutional amendment. Doing this required disregarding or changing constitutional norms that require participation of minority parties and civil society in passing legislation and amending the constitution. The Hungarian and Polish Parliaments evaded these norms by passing crucial government measures through private bills, which are exempt from the normal legislative procedures creating deliberative democracy. Fidesz evaded a requirement that a constitutional amendment have four-­fifths support in Parliament by using its two-­thirds majority to change the four-­fifths rule. These governments’ autocrats obtained sufficient support from the ruling party to enable them to secure passage of extremely significant changes through quick lockstep votes, riding roughshod over minority parties. Many of the key legislative proposals and constitutional amendments passed in this way centralized control over administration and undermined the judiciary.

Conclusion In this chapter we have seen that the head of state drives the conversion of democracy to autocracy. He centralizes power over the bureaucracy and

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sometimes uses emergency powers to hasten the process. Once in control of the executive branch of government he can use it as a weapon to undermine the rule of law, tilt the electoral playing field, and shrink the space for public debate. The head of state does not seize control on his own, however. In all three cases, a political party backed by at least a significant minority of voters supported the drive to autocracy. The willingness of the ruling party to uncritically back their leader with lockstep party-­line voting usually plays a key role in eroding democracy. The autocrats in these case studies relied on formal democratic mechanisms such as referenda and acts of Parliament to establish their control over the executive branch and, in two cases, to seize broad emergency powers. They exercised their power as party leaders and as charismatic populists to drive these results. This does not mean that an American President needs control over the legislature to establish the same power. In the United States, as we shall see, the judiciary may produce the necessary changes in constitutional structure, either through changes in constitutional doctrine or broad construction of legislatively delegated powers. And the previous chapters suggest that some of the changes in constitutional structure have already occurred. One basic caveat is in order. My claim is not that enhanced executive power constitutes the sole cause of democratic decline in any country. Enhanced executive power did not provide the sole cause of democratic decline in the Weimar Republic. After all, the Weimar Parliament delegated emergency powers to Hitler. I do claim, however, that enhanced executive power, including consolidation of the chief executive’s control over the executive branch, constitutes both a defining characteristic of autocracy and a potent weapon in undermining democracy. The next chapter begins the work of translating this lesson into the American context.

6

P A R A L L E L S T O A M E R I C A’ S D E M O C R AT I C E R O S I O N

A f t e r t h e E l e c t or a l C ol l e g e made Donald Trump President in 2016, scholars began to ask the question: Can it happen here? Can America lose its democracy? The correct answer is that American democracy has already declined significantly, but we do not know how far this erosion may go. And, more importantly (for this book), judges who must decide how much weight to give the possibility of autocracy in making rulings on presidential power cannot know either. Experience in adjudicating single cases may not help a judge see how numerous incremental changes (many of which lie outside of the judiciary’s competence) can together erode democracy over time. And the question of a democracy’s vulnerability is so complex that the notion that anybody knows whether America will suffer much more severe democratic decline than it has already seen seems quite brazen. The danger is that judges will credit their own intuition, instead of thinking through what they should do when they cannot predict whether the myriad challenges confronting democracy will substantially impair it. The next chapter addresses how to take the prospect of democracy erosion into account under conditions of complex uncertainty. Further complicating the judges’ ability to detect movement toward autocracy in individual cases, autocratic leaders slowly destroying democracies look an awful lot like democratic leaders playing constitutional hardball, as the previous chapter pointed out. Thus, the apparent ordinariness of constitutional hardball makes it hard for the judiciary to detect movement toward autocracy. 121

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Bearing in mind that democracy loss often occurs slowly in many incremental steps, we have cause for concern. Recent American experience disconcertingly parallels that of Hungary, Poland, and Turkey in many ways, and we have been slowly centralizing more and more power in the President over time. But our democratic decline so far has proven less severe than the decline in Turkey and Hungary. Over the long term, the picture looks even more disconcerting in light of history’s lessons about the role of political polarization in thwarting democracy across a broad range of polities. This chapter begins by looking at how movement toward the unitary executive has tended to undermine the rule of law in the administrative state. It then examines the extent to which the United States has emulated the autocracies in tilting the electoral playing field through political control over prosecution and partisan rigging of elections. It also explains that partisan division has led to a breakdown in deliberative democracy very similar to what we saw in the case studies. It then looks at efforts to shrink the public space for debate. And it analyzes our judiciary’s vulnerability to capture of the type engineered by the new autocrats. It also briefly mentions the presidential war power as a potential long-­term threat to our democracy largely absent in Hungary, Poland, and Turkey. The chapter closes with an explanation of why the complexity of democracy loss produces uncertainty about whether it is occurring. This section also analyzes some of the long-­term vulnerabilities both in our constitutional structure and in potential future events that may cause an unraveling.

The Unitary Executive and Rule of Law Erosion in the Administrative State The analysis in Chapter 5 suggests that the unitary executive provides a path to autocracy. It shows that if an elected chief executive with autocratic tendencies obtains complete control over the executive branch of government, he will likely use that control to erode democracy and the rule of law. The power to remove government officials and replace them with the chief executive’s preferred people provides a potent weapon to convert the government from an instrument of law into the instrument of an autocratic chief executive. We also saw that the chief executive’s appointment authority helped produce an autocracy even if it was formally incomplete. Effective control of the chief executive matters, not the formal arrangement of authorizing the chief executive to choose each appointee by himself.



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Before the Supreme Court endorsed the unitary executive theory in 2020, Congresses and Presidents had adopted numerous laws implicitly rejecting it. But recent Presidents have pushed to establish complete control anyway and have significantly impaired the rule of law in many contexts. In the opinion of Supreme Court Justice (and former Harvard Law School Dean and Solicitor General) Elena Kagan, as well as other legal scholars, governmental practice resembled the unitary executive model more closely than many had supposed even before Seila Law.1 The trend favoring centralized control of administration arguably began under Ronald Reagan. Prior to Reagan, even agencies that Congress had not set up as formally independent agencies had a lot of functional independence. Richard Nixon, for example, had insisted on an independent EPA, as opposed to one located within the Department of Commerce, as a means of ensuring that business elites would not capture it. Reagan promulgated an executive order that greatly limited most government agencies’ independence. This order requires a White House office—­the Office of Information and Regulatory Affairs (OIRA)—­to review significant agency rules. While the order formally relies on the need for cost-­benefit analysis (CBA) to justify this review, in practice OIRA reviews rules even in the many cases when CBA is not possible and insists on changes for a variety of reasons having little to do with CBA (even when a CBA is done).2 One might view the use of CBA as an aid to dynamic statutory interpretation conforming statutes to emerging elite views about what sensible law does,3 but the Department of Justice recognized that changing law through executive order raises rule-­of-­law issues and insisted that the order’s instructions only permit changing rules “to the extent permitted by law.” Critics of the order have charged that the order has nonetheless triggered a host of illegal actions, and it certainly contributed significantly to widespread violation of statutory deadlines. Thus, it undermined the rule of law in at least some respects and moved us closer to having a unitary executive like that established through legislation restructuring the executive branch in the autocracies. Reagan also undermined the rule of law through some of his appointments. He secured appointment of opponents of the laws that the Constitution and relevant legislation requires the appointees to administer. Senate approval of these appointees suggests an erosion of the constitutional custom the Framers sought to establish when they rejected a proposal by Alexander Hamilton and others to allow the President to appoint executive officers at pleasure and instead insisted on Senate approval of key appointments—­that of only approving nominees

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committed to executing the laws faithfully. The approval of these appointees and statements of congressmen suggest creation of a newer norm generally favoring giving the President the people he wants, a norm in keeping with the unitary executive principle, but not with the Founders’ rule-­of-­law goal. The Congress, however, forced the resignation of Ann Gorsuch, an EPA administrator who too blatantly sought to undermine environmental law. Subsequent Presidents found OIRA control over government agencies convenient and retained it. And Congress, after more than a decade of skepticism, endorsed OIRA involvement for very expensive rules in the Unfunded Mandates Act of 1995. The centralization, however, has undermined the rule of law even when Presidents more supportive of government regulation than Reagan won election. For example, President Obama’s administration held up rules required under statutes for political reasons, to avoid antagonizing Republican opponents of regulation.4 Thus, President Obama undermined the rule of law to enhance presidential influence over future policy, subordinating law to politics. President Obama’s administration, in keeping with the trend toward centralized control, sought to establish his preferred immigration policies through a policy of nonenforcement of immigration laws against children living here and immigrant parents of American citizens. The Court of Appeals for the Fifth Circuit reversed the policy protecting parents of U.S. citizens, and the U.S. Supreme Court affirmed by an equally divided vote.5 President Trump built on the legacy inherited from Reagan and his successors to undermine the rule of law much more thoroughly. He put forward a slate of nominees to cabinet positions more systematically and completely dedicated to undermining the laws than any previous President, and, with one exception, they sailed through the Senate on lockstep party-­line votes. Trump’s EPA administrator—­Scott Pruitt—­however, proved so corrupt that Trump removed him under pressure. Trump more often dismissed or triggered the resignation of officials because they showed allegiance to the rule of law on matters important to him, firing FBI Director James Comey, who investigated Russian interference in the 2016 election;6 Attorney General Jeffrey Sessions, who respected conflict of interest rules governing government attorneys; and intelligence community Inspector General Michael Atkinson, who obeyed federal law requiring him to share a whistleblower complaint about Trump’s Ukraine dealings with Congress, and triggering the resignation of Homeland Security Secretary Kirsten Nielsen, who wanted the administration to follow immigration law offering asylum to refugees fleeing persecution.



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President Trump also promulgated a set of executive orders that attacked the rule of law, including some that sought to substitute presidential for legal control over administrative agencies.7 The most sweeping of these orders attacked much of the United States Code, which tasks administrative agencies with protecting the public from various kinds of harm, such as financial chicanery, pollution, occupational hazards, and unsafe products (e.g., food, drugs, and automobiles). Trump, in effect, commanded the agencies to faithlessly execute the law by not protecting people from harms, telling them instead to protect the businesses they regulate from any net cost. He did this by issuing an executive order instructing all agencies to repeal two rules for every new one promulgated and to ensure that all the rules changed together impose no net cost on society. President Trump also instructed the government to undermine the Affordable Care Act (ACA) (a statute making health insurance widely available and aiming to check rising health care costs), directing federal officials to “waive, defer, grant exemptions, or delay the implementation” of the ACA’s requirements.8 Notwithstanding the “to the extent permitted by law” caveats (maximum extent in the ACA context), these orders instruct government agencies to substitute Trump’s policies for the law’s policies.9 These and other orders substantially undermined the rule of law in much of the federal government. In their wake, the Trump administration lost an astonishing 83 percent of its deregulatory cases between the beginning of his administration and November of 2020.10 Two-­thirds of these cases involve violations of the Administrative Procedure Act, which requires legal and reasonable decision making and use of procedures permitting public input. Normally, the government wins about 70 percent of regulatory cases.11 One might interpret the judicial reversals as evidence that the President did not succeed in undermining the rule of law. But Congress and previous Presidents enacted these laws to secure affirmative actions addressing various harms. Since courts cannot write such detailed rules themselves, judicial reversals produce remands, not the required rules, so that the rule of law remains impaired. While judicial action might keep some existing laws in place, judges find it difficult to force the administration to enforce statutes that executive branch leaders simply refuse to enforce. Trump also incentivized the exodus of many civil servants, including an unusually large number of members of the Senior Executive Service, thereby accomplishing a presidential impairment of the civil service similar to that which autocrats in Hungary, Poland, and Turkey accomplished through legislation. He triggered this exodus by freezing pay and hiring, leaving vacancies unfilled, creating a work environment hostile to rational discussion, and shutting down

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the federal government.12 I am not aware of any studies examining whether these moves, which some small-­government advocates support, have contributed to the demise of the rule of law. Legislative decisions to repeal regulatory statutes or abolish agencies, while distressing to liberals, conform to the rule of law. Disabling the law by securing the resignation of people dedicated to carrying out laws remaining on the books harms the rule of law. In the last months of his administration, Trump promulgated an executive order promising to further this destruction of the civil service, by asserting the authority to fire many employees currently enjoying civil service protection from arbitrary dismissal. The breakdown of the rule of law in the administrative agencies weakens democratic governance. But most of these efforts to substitute presidential fiat for the rule of law short-­circuit implementation of laws setting standards for businesses, rather than tilt the electoral playing field. The United States established a unitary executive to a greater degree than many realize before Trump took office. President Trump greatly accelerated the process of establishing presidential control, but the process remains incomplete as of this writing. It has substantially eroded the rule of law in large parts of the federal government.

Tilting Electoral Outcomes Through Abuse of Executive Power and Party Shaping of Electoral Rules We saw in the studies of autocracy a pattern of tilting the electoral playing field, partly through legislation and partly through the President’s abuse of the power to control administration of the law. We see the same pattern in the United States, but with some new wrinkles. A B U S E O F E X E C U T I V E P O W E R T O T I LT T H E E L E C T O R A L P L AY I N G F I E L D

Several Presidents before Trump sought to exert control over prosecution in order to tilt electoral outcomes. In each case, Congress held the President in check. Trump engaged in a more wide-­ranging and public effort to destroy prosecutorial independence in order to undermine the rule of law and tilt electoral outcomes than any other President but encountered less opposition from Congress than his predecessors. We have already seen that President Nixon broke customary constitutional norms of prosecutorial independence to cover up his effort to tilt the electoral playing field. The George W. Bush administration also took steps to centralize



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prosecution in ways that arguably undermined the rule of law to tilt the electoral playing field. The Bush administration sought to encourage U.S. Attorneys to prosecute voting fraud cases and other cases. They reviewed these cases but ultimately demurred for lack of evidence.13 Bush’s Attorney General, Alberto Gonzalez, then fired several well-­respected U.S. Attorneys. An uproar in Congress, however, ensued over this attempt to weaponize prosecution to tilt electoral competition, and Gonzalez resigned. In classic autocratic style, President Trump sought to use prosecution to attack his enemies and protect his friends. Trump protected himself from government investigation by firing prosecutors and investigators. For example, he fired James Comey after Comey declined to promise to go easy on Michael Flynn (a trump aide suspected of misconduct) and Jeffrey Sessions, who refused to thwart an investigation into Russian intervention in the 2016 election. Such moves send powerful signals that investigating the President or his supporters can cause an official to lose his job. And Trump more broadly encouraged prosecutors not to go after Republicans committing crimes, lest the prosecution damage the Republicans’ electoral chances. He also asked the DOJ to investigate Democratic politicians and other “enemies,” including Hillary Clinton, John Kerry, Joe Biden, James Comey, and Oakland Mayor Libby Schaaf, while publicly suggesting that his political opponents (like James Comey and Hillary Clinton) should go to jail, without citing any evidence of a crime.14 He attacked Deputy FBI Director Andrew McCabe, leading to him being fired a few days short of retirement and suffering a criminal investigation for misstatements about press leaks, a type of misconduct that generally does not trigger criminal prosecution.15 Under Barr, the DOJ protected the President’s friends and harassed his opponents, but stopped short of prosecuting the President’s foes. Consistent with the Orbán approach of securing public announcement of corruption charges to sideline opponents, President Trump sought to persuade Ukraine’s President Zelensky to publically announce an investigation into Joe Biden, using U.S. military aid as leverage. Trump’s effort to enlist a foreign government in his effort to tilt the electoral playing field triggered his impeachment, but after the Senate voted not to remove him he continued his effort to enlist foreign governments in investigating his Democratic rival. Trump brought the Justice Department under firmer central control through the appointment of William Barr as Attorney General, by all accounts a firm believer in the unitary executive theory. Barr began to act more like an agent of

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autocracy than like a supporter of prosecutorial independence. He censored parts of the Mueller report, announced that the President had not committed obstruction of justice in advance of release of evidence to the contrary, triggered an investigation of civil servants who looked into Russian interference in the 2016 election without any evidence of wrongdoing, and interfered with the decisions of career prosecutors who had obtained convictions or guilty pleas from Trump associates. President Trump sought to tilt the electoral playing field using his control over the executive branch in creative ways not seen in the new autocracies. Trump forced the Department of Commerce to add a citizenship question to the U.S. Census in order to create an undercount of voters in areas likely to vote for Democrats. The Supreme Court, however, checked this effort to tilt the electoral playing field.16 Trump also abolished the office of the Coordinator of Cybersecurity and precipitated the resignation of a well-­respected head of National Intelligence, thereby weakening resistance to Russian efforts to rig elections through the Internet.17 Trump also used a veto threat to choke off funding for the Post Office with the stated intention of thwarting mail-­in balloting during a pandemic. After an experienced Postmaster General resigned under pressure from the President, his administration put a campaign contributor with no experience in running the Post Office in power. That Postmaster General then proceeded to slow down mail delivery, even removing mail-­sorting equipment. Trump’s effort to thwart postal delivery in order to tilt the electoral playing field may have caused some mail-­in ballots to arrive too late to be counted, but did not ultimately change the 2020 election’s result. So, Trump employed a more familiar authoritarian tactic at the end of his administration, falsely claiming that the election he had lost was rigged and fraudulent as he sought to deploy all resources at his disposal to change the result. A unitary executive headed by a power-­hungry autocrat will likely prove quite dangerous, because the public has grown accustomed to seeing the President formulate policy, not just implement legislation. Delegation over the years of vast powers to the President compounds the difficulty. Appreciating the degree of danger would require a separate book. The analytical task would involve imagining how all of the authority delegated the President in the U.S. Code and bestowed upon him by the Supreme Court could be stretched and abused to persecute opposition and entrench the President in power. This assessment would include, of course, looking at the potential scope of emergency powers, scattered among numerous sections of the U.S. Code.



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L E G I S L AT I V E T I LT I N G O F E L E C T O R A L R U L E S

As in the countries studied in Chapter 5, the ruling party has adopted rules tilting the electoral playing field whenever it can. Determined gerrymandering employing state-­of-­the-­art computer models to rig the game as effectively as possible (mostly by the Republican Party) has influenced many elections, but not sufficiently for Republicans to remain in control of the House in 2018. This gerrymandering fueled political polarization by reducing the number of competitive districts where moderate politicians would have the best chances of winning. This polarization skewed electoral outcomes and substantially impaired deliberative democracy in the Congress and some state legislatures. But in the United States, states have substantial control over election laws and the Supreme Court has limited gerrymandering to some degree by requiring that congressional districts have nearly equal populations. As a result, rigging elections through gerrymandering on a scale sufficient to allow capture of the federal government here can prove more difficult than in a unitary state. On the other hand, the Republicans have made a long-­term commitment to tilting the electoral playing field through gerrymandering backed by state-­of-­the-­art computer modeling, and Democrats have sometimes also gerrymandered states they control, so that the effort to hinder democracy may well outlive a particular President’s term in office.18 The Supreme Court’s decision (5-­4 along partisan lines) to duck judicial review of even the grossest partisan gerrymander makes this profound long-­term threat to democracy difficult to check over the long run. Furthermore, the Constitution allows Congress to regulate federal elections if it wants to. If the constitutional custom of state control over elections were to sufficiently erode, a temporary majority in Congress might facilitate a nationwide gerrymander. We have seen repeated efforts to limit the franchise through voter ID laws and other mechanisms designed to discourage low-­income and often minority voters from exercising their rights. As in the case studies, proponents of these measures use bogus excuses (voter fraud in this case) to justify measures tilting electoral competition. In addition, we have seen repeated efforts to politicize federal prosecution to support those efforts, albeit without apparent dramatic results so far.19 We have seen some electoral fraud in North Carolina, but a bipartisan electoral commission corrected it. President Trump’s 2016 election was tainted, just as Erdoğan’s referendum’s passage was. In Trump’s case, the taint came primarily from Russian efforts to manipulate voters through social

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media and hack voter registration systems. We do not know if the hacks changed voting in sufficient numbers to have affected the outcome (just as we do not know if the better-­understood irregularities in Turkey’s referendum determined the outcome).20 Electronic voting machines and registration records create new opportunities to manipulate electoral results in the United States through hacking over the Internet. The new opportunities could prove more potent than the old-­fashioned techniques of gerrymandering and voter suppression. In addition, Tom Ginsburg and Aziz Huq point out that the use of social media to influence electoral results through massive infusions of false information designed to confuse the public, which Russia carried out in 2016, is a new technique in its infancy.21 The Republican party resisted efforts to use federal standards to promote cybersecurity during the Trump administration. We also have inherited constitutional vulnerabilities to majority rule that have made our elections less representative of majority views than we like to think. The original constitutional choice to give two Senators to each state regardless of population created the possibility that 30 percent of the electorate could create a Senate majority.22 Today, less than 12 percent of the population can create a majority in the Senate (although in practice elections have not realized the theoretically worst outcome).23 Minority control of the Senate has accelerated, with the Senate in 2019 having a Republican majority after 57 percent of the electorate voted for Democratic senatorial candidates in 2018.24 (Since Senate terms are staggered, majoritarian outcomes in the Senate might not perfectly mirror the results of one year’s elections, but this still suggests skewing). Structural constitutional deviations from majoritarianism played a role in the rise of autocracy in Hungary, Poland, and Turkey. In Turkey, Erdoğan’s AKP obtained a two-­thirds majority in Parliament with just 34 percent of the vote in 2002, thanks to a law denying representation to parties winning less than 10 percent of the vote. Similarly, Poland’s PiS party obtained a parliamentary majority with less than 38 percent support in an election with low turnout. The constitutional compromises at the founding of Hungary’s post-­Soviet democracy also gave a boost to larger parties in order to avoid excessive fragmentation in Parliament. That led to Fidesz capturing a two-­thirds majority in Hungary’s legislature with only 53 percent of the vote in 2010. That supermajority enabled Fidesz to pass constitutional amendments (and legislation) transforming the Hungarian system to empower Viktor Orbán. Anti-­majoritarian features in a Constitution can enable an autocrat to



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take power without majority support or obtain a supermajority with only a bare majority of the electorate approving of his party. Antimajoritarian features in a Constitution (including the U.S. Electoral College) can make it vulnerable to autocratic capture.

Ending Deliberative Democracy The Republican Party, when in control of Congress (and many state legislatures), has acted quite a bit like the ruling parties in Poland, Hungary, and Turkey. It has dispensed with “regular order”—­our constitutional custom of consulting with the minority and civil society in the formulation of important legislation. Its members almost always vote in lockstep along party lines.

Shrinking the Public Space for Debate Our public space has shrunk, because we have a less robust media than we once did. Relaxation of rules limiting media concentration and creating the fairness doctrine have combined with technological changes to destroy most independent sources of news and make the public highly dependent on social media and a handful of large corporate-­owned media outlets. At least some of these outfits exhibit so much loyalty to the government that they often function as propaganda outlets, and purveyors of abusive lies can manipulate social media to a regime’s advantage.25 President Trump emulated authoritarian tactics by filing libel suits, attacking the press as enemies of the people, and excluding critical journalists from press conferences (like Erdoğan). The teachings of the new autocrats indicate that the government can shrink the public space further by manipulating media ownership and bringing economic pressures to bear on critical journalists and media outlets. Trump apparently brought economic pressure to bear on Jeff Bezos, the owner of the Washington Post, intervening in a military computing contract that might well have benefited Bezos’ Amazon Web Services and threatening to block Postal Service funding unless it raised rates for Amazon deliveries.26 Trump has also threatened to pull the licenses of critical media outlets.27 A unitary executive could pave the way for a President to use economics and licensing as the new authoritarians do to subdue opposing media partly by securing presidential control over the FCC and antitrust authorities. These case studies also teach that a complete throttling of the opposition media is not essential to establishing an autocracy. Securing the loyalty (or at least the nonopposition) of the most important media may suffice.

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The Judiciary Politicians have pursued efforts to interfere with judicial independence most vigorously in the states, where legislators have tried to follow the practice of autocratic parties abroad to entrench themselves in power. In West Virginia, a heavily gerrymandered House recently voted to impeach all of the Justices on the state Supreme Court citing primarily lavish spending on office furniture.28 This spending, however, violates no law, as West Virginia’s Constitution gives the Justices discretion over such spending.29 In spite of objections from the Chamber of Commerce and the AFL-­CIO, this power grab worked. Under this pressure, two Democrats on the Court resigned, and the Governor replaced them with prominent Republican politicians. The West Virginia Court of Appeals invalidated the impeachments based on separation of powers. The federal government prosecuted two of the Justices, both of whom resigned in response to federal convictions for misuse of state credit cards and vehicles (one based on a plea to a single count of wire fraud, the other based on conviction on ten counts). They agreed to reimburse the state for losses of $800 in one case and $1,273 in the other. The paltry amounts collected raise questions about whether the DOJ has engaged in the Turkish practice of vigorously pursuing minor but real violations of the law for political purposes. Thus, Republicans acting very much like PiS, Fidesz, and AKP undermined judicial independence in West Virginia through ending the terms of sitting Justices before their terms expired. In Pennsylvania, Republican legislators filed articles of impeachment against state Supreme Court Justices who found a partisan gerrymander unconstitutional. When this effort failed, they sought a constitutional amendment converting all appellate court judgeships in the state into elected offices. In North Carolina, the executive director of the Republican Party threatened Justices with impeachment if they rejected a Republican ballot initiative to take the power to make interim court appointments away from the Governor—­a Democrat. The state Supreme Court, however, stood up to this pressure and invalidated the ballot measure. The legislature did not impeach them. In short, in the wake of gerrymandering creating extremist majorities in legislatures out of proportion to the support for extremism in the public, judicial independence has come under assault in some states, with mixed results so far. The federal courts have also begun to lose some of their independence, due to the politicization of the appointments process.30 This politicization puts a premium on loyalty to the ruling President and his party, making a judge’s likely



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fealty to party goals a major criterion for nomination. Trump accelerated politicization of the appointments process to put ideological allies on all federal benches and executive power proponents on the Supreme Court (thereby obtaining support for moves toward autocracy). When U.S. democracy was more robust, Presidents usually chose widely respected nominees perceived by all parties to be fair, and the Senate usually approved judicial nominations by wide margins. The United States had a norm demanding multiparty support for judges in the form of the filibuster rule in the Senate, an analogue to the Hungarian constitutional provision that required multiparty support of nominees to its Constitutional Court before Fidesz amended its constitution to allow Orbán to pack the Court. Any member, under the Senate rule, could block a nomination by threatening to talk continuously on the Senate floor. Overcoming the filibuster required a two-­thirds vote, which in practice meant that a judge must have support from both parties to obtain Senate approval. This norm protected judicial independence by allowing judges who refused to display loyalty to a particular party’s preferences or to the President nevertheless to obtain nomination and confirmation. The Republican majority in the Senate abolished the U.S. requirement for multiparty support for Supreme Court Justices recently through a simple amendment of the Senate rules. The Democratic Party had abolished the rule with respect to lower-­court judges when it was in the majority. Thus, erosion of the American customary norm of bipartisan support for judicial nominees has paved the way for court packing as judges retire. Franklin Delano Roosevelt had proposed to use a technique seen in the new autocracies when the U.S. Supreme Court threatened his “New Deal” legislation—­expansion of the membership of the high court to change its rulings. Bipartisan opposition in defense of the informal norm of not subordinating the Court to partisan agendas defeated the scheme.31 Senate Majority Leader Mitch McConnell, however, defied this informal norm against partisanship in deciding about the size of the Court by, in effect, shrinking the Court temporarily for partisan advantage by refusing to allow the Senate to consider President Obama’s nomination of Merrick Garland to the Supreme Court in the last year of Obama’s presidency.32 Emulating another authoritarian tactic—­forcing federal Article III judges likely to oppose the regime’s consolidation of power to retire early—­would likely prove impossible in the United States through a formal legal rule. Since the U.S. Constitution provides lifetime appointments for federal judges, lowering the

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retirement age would require a constitutional amendment, which is extremely difficult under the U.S. Constitution.33 An American autocrat seeking to get federal judges to retire early would probably have to resort to informal means, such as blackmail, to accomplish this result, and that would make it harder to accomplish. A President could also force early retirement through abuse of the impeachment power (as in West Virginia), but that would require the capture of both houses of Congress with a supermajority in the Senate. President Jefferson tried to impeach his strongest foes on the Federalist judiciary, but largely failed.34 Lifetime appointments do not prevent an autocrat from packing the courts, but they slow down the process, giving democratic forces some chance to regroup. The Trump administration laid the groundwork for authoritarian term-­ ending tactics with respect to administrative law courts. Using a narrow pro-­ unitary executive ruling prohibiting SEC staff from appointing an administrative law judge as a pretext, the Trump administration began to erode the for-­cause removal provisions ensuring the independence of administrative law judges (and paved the way for politicized appointments by exempting some administrative law judges from requirements to pass competitive exams).35 Eroding administrative law judges’ independence can help an autocratic President avoid the rule of law, by making it easier to obtain outcomes at odds with the law’s goals. Hungary abolished the right of any citizen to seek judicial review of some allegedly unconstitutional government actions, which had allowed the Court to function robustly as a check on unconstitutional efforts to entrench a regime in power. Poland did the same thing for a period before ideological capture made abstract review useful for the Kaczyński government. We have seen that the U.S. courts have frequently disabled themselves from enforcement of limits on presidential power, especially with respect to war powers, by creating and applying justiciability doctrines, some of which prohibit abstract review, to insulate claims of excessive presidential power from judicial review. Of course, if an American autocrat packs the federal courts with reliable loyalist judges no federal judicial audience will exist for this book’s argument. But to the extent we have judges who are seriously willing to listen to arguments against enhanced presidential power rooted in the Framers’ concerns about despotism and information about how heads of state establish autocracies, they should understand that we do not have as robust a democratic system as we did a number of years back and that presidential power constitutes a potential threat to continued democracy. Even without the protection of lifetime tenure, the Polish, Turkish, and Hungarian constitutional courts did recognize the danger



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at times and struck down some government measures as unconstitutional. With lifetime tenure, there is always hope that even judges appointed to approve the governing regime’s measures may give the reality of how autocracy arises some weight in at least some cases.

The War Power The American President also has potent tools at his disposal to combat democracy that arguably played no role in these case studies but did play a role in Nazi Germany. The President, as we have seen, now has, effectively, a unilateral war power, which enables him to capitalize upon or manufacture an emergency to rally the country around accepting (or at least not stopping) drastic measures to empower the President and weaken civil liberties. Because the United States has a long history of military intervention, public acceptance of a power-­enhancing war may prove greater than it would in countries that are not world powers.

Complexity and Uncertainty This sketch shows that our democracy has declined. We have eroded the rule of law, tilted the electoral playing field, witnessed an erosion of the public space, just about ended deliberative legislative process, and begun court packing. But it also suggests that we have not yet lost it. The key to understanding why no federal judge (and no analyst) can answer the question of whether American democracy can erode much further in the medium term involves understanding the complexity of the system dynamics that could unravel or restore the system in the future. A court cannot predict whether a President removing prosecutors from office can secure the appointment of cronies determined to sideline his most important opponents, and how successful those efforts might be. The experience in Hungary and Turkey teaches us that such efforts can succeed even if they produce indictments for corruption but no trials or trials for minor violations of the law. And use of those techniques disables potential judicial checks on abuse of prosecutorial authority. Just as the firm support of AKP, PiS, and Fidesz allowed autocrats to use prosecution as a weapon to entrench themselves in power, a Senate with a bare majority of determined supporters of an authoritarian President can enable him to use prosecution to persecute the President’s opponents and protect his supporters. In that sense, the experience of autocracy abroad translated into the U.S. context shows that the antifederalists were right to fear a cabal between the President and Senate.

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Over the long term, our legal system is much more structurally vulnerable to that sort of attack than systems based on independent or multiparty processes for selection of prosecutors. Furthermore, the President’s ability to fire attorneys general and perhaps other prosecutors makes the system more legally vulnerable to an effort to weaponize prosecution than systems that do not permit that. In other words, the constitutional changes that make centralized control over prosecution constitutionally possible in the United States occurred through the creation of the DOJ in the 1870s, the Myers decision, the decline of the Senate’s interest in defending the rule of law, and, most recently, the Supreme Court’s affirmation of the unitary executive theory in Seila Law. The Senate in the United States can approve appointees hostile to the rule of law, thwart impeachment, and prevent passage of legislation curbing presidential abuses. Because of the vast scope of authority delegated to the executive branch of government already, the support of the Senate may suffice to allow a President to utterly destroy the rule of law. Accordingly, the structural changes needed to facilitate prosecutorial abuse do not require legislative initiatives in the United States, as they did in Hungary, Turkey, and Poland. Support of the unitary executive theory in the judiciary and the executive branch may suffice to destroy the rule of law. A court cannot predict how a President might be able to intimidate critics in the media through selective antitrust prosecution, manipulation of regulatory authority, libel actions, and other abuses of power. It cannot predict how much damage a President might inflict upon our democracy by declaring an emergency and using all of the authority given the President (or the executive branch under his control) in the U.S. Code while claiming additional implied powers. This chapter has described autocrats’ substantial and determined efforts to tilt elections. No court can predict whether electronic manipulation of vote counts, hacking of voter registration, gerrymandering, abuse of social media, and other election-­tilting measures will prove decisive in an election that might implicate the future of an authoritarian President or his supporters. The Erdoğan referendum’s success highlights the difficulty of prediction. Most observers expected the referendum to pass by a wide margin, owing to the shock of the coup attempt, the curtailment of civil liberties in the resulting state of emergency, and AKP’s domination of the media. The vote, however, proved close. A fairly technical electoral board decision to accept unstamped ballots has received a lot of scrutiny, but even in hindsight, EU authorities could not determine whether this and other irregularities changed the outcome. In a struggle to preserve democracy against



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a determined autocrat, seemingly minor defects in electoral integrity can have ripple effects that enable autocracy in a close election. Over the long term, prediction proves even more difficult, but even greater cause for concern exists. Partisan division, which we have suffered from for some time and may well continue, often proves fatal to democracies in the long run.36 When government cannot meaningfully address key problems because of partisan division and politicians substitute constitutional hardball for compromise and reasoned debate, people sometimes support autocrats in desperation. That problem played a key role in the destruction of Weimar Germany, in democracy losses in Latin America, and in many other cases. An autocrat (or several autocrats) attacking the democratic system may eventually succeed unless the people with positions of power in our institutions stop them. Autocrats know this, sometimes instinctively. They demonize and attack their opponents and the media, hoping to secure sufficient public support to allow them to compromise the rule of law to tilt elections and shrink the public space. They stir up fear and anger against outside forces (immigrants in the Hungarian and Polish cases; Kurds in the Turkish case), in order to rally populist support against elites. They then manipulate these fears by castigating their political opponents as elitist allies of the despised groups and of other reveled outsiders (the European Union in the case of Hungary and Poland and exiled Turkish leader Fethullah Gülen in the case of Turkey). Division and fear can outlive a single President’s term in office. Furthermore, difficult to predict external shocks can provide opportunities for demagogues to exploit constitutional weaknesses (like a unitary executive) to subdue a democracy. In Hungary, the 2008 financial crisis and large sudden influx of immigrants due to a crisis in Syria played a big role in making populist demagoguery against the European Union (which did not adequately support Hungary during the financial crisis) and immigrants attractive, thereby allowing Viktor Orbán to dismantle Hungarian democracy.37 Later, the shock of the coronavirus gave Orbán the opportunity to create a dictatorship. We saw that the coup attempt in Turkey helped Erdoğan rally support for centralized presidential power. In the United States, Donald Trump exploited the fear created by terrorist attacks and the financial insecurity and anger at elites that the 2008 financial crisis stoked to win the 2016 election. While scholars do not agree upon the political causes of the democratic decline sweeping the globe at the moment, history demonstrates that external shocks, which are hard to predict, can play a role.38

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Thus, a nontrivial risk exists that the United States may lose its democracy sooner or later because a President will take control of the nation, abuse the authority a unitary executive has, and perhaps deploy emergency powers to overcome resistance. In taking this threat into account, one must remember that a President in control of a unitary executive branch can, in theory, avoid legal constraints entirely. Only the executive branch disciplines and constrains citizens. The executive branch alone can persecute opponents, levy debilitating fines, and harass the opposition with needless investigations. Federal prosecutors have only sporadically abused their power, because Presidents customarily obey court orders and seek to remain within the bounds of their constitutional powers. But if a substantial minority of the public comes to accept the idea that a President should solve the nation’s problems himself, that external threats demand this, and that the President’s opponents are evil, the rule of law vital to democracy can unravel.39 The fact that even in countries with less-­well-­established democracies than we have heads of state feel obliged to capture constitutional courts is encouraging in a way. It suggests that courts play an important role in legitimizing and delegitimizing legal change. It suggests that authoritarians regard rebukes by a court having neither purse nor sword as an impediment to obtaining absolute power. It suggests, in short, that courts might have a role to play in defending democracy. That is especially important in the United States, because democratic amendment of the Constitution (like that occurring in Hungary and Turkey) proves extremely difficult. The judiciary amends the Constitution over time, as the implied power jurisprudence canvassed in Chapter 4 shows, by adding to its rather sparse provisions and by interpreting them to address questions coming before it. And the courts can interpret the Constitution to sanction or at least tolerate the establishment of autocracy that the framers sought to avoid. Or the judiciary can use its power to slow down and contribute to the defeat of autocratic tendencies that can undermine a Republic. The next chapter addresses the question of how courts should respond to the lessons gleaned from study of the role of presidential power in eroding and perhaps destroying democracy.

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J U D I C IA L T R E AT M E N T O F PRESIDENTIAL POWER IN AN AG E O F D E M O C R AT I C D E C L I N E

T h is c h a p t e r a ddr e s se s the question of how courts should respond to the possibility of Presidents greatly impairing democracy. The lessons from the case studies of Turkey, Hungary, and Poland imply that judges have a duty to maintain the rule of law in the executive branch of the federal government and make sure that it applies to the President. The law usually reflects multiparty agreements and therefore often structures government to avoid partisan capture of key institutions. As long as the President and the rest of the executive branch remain subservient to the law, they will find it difficult to tilt the electoral playing field and shrink the public space. But if the courts fail to hold the President accountable and maintain institutions diluting his personal power over the executive branch for the purpose of maintaining a rule of law, an autocratic President will sooner or later use the law to oppress opposition and tilt the electoral playing field, as these case studies suggest. But the question of how to check presidential power for the sake of having a robust rule of law can prove complex, at least in some contexts, for many reasons. First, judges have other legitimate concerns, such as the need to provide Presidents with sufficient flexibility to address potential terrorist threats adequately. These concerns appear to compete with judicial desire to limit autocracy’s prospects. Second, judicial legitimacy, an important asset in any effort to check an autocratic President, requires fidelity to text, precedent, and, for many observers, original intent. Not all autocracy-­checking options are on the table, but original 139

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intent generally supports giving priority to preserving democracy. Third, a wise judge may have legitimate questions about whether the judiciary can contribute meaningfully to checking an autocrat. Although this book’s focus on presidential power jurisprudence has led to a treatment that emphasizes law and institutional considerations, broad studies of the rise and fall of democracies across time and space identify politics and political parties as the primary factors causing democratic decline or bolstering democracy.1 This chapter makes a case for courts giving more weight to the possibility of severe democratic decline than they have since Youngstown. And it provides general principles and some specific recommendations for how to give this concern weight in light of the prior chapter’s case studies. The general principles involve simply considering democratic decline and the possibility of presidential bad faith in making decisions. I also defend here the idea of giving democratic decline more weight than error costs, in light of democracy’s capacity to correct errors. And I conceptualize national security, which the Supreme Court often invokes but never defines, as securing the People’s sovereignty over the United States territory.2 More specifically, I identify possible prodemocracy doctrinal moves for future jurisprudence. I suggest rejecting or limiting the reach of the unitary executive theory, bolstering presidential legal accountability (especially when purporting to respond to emergencies), and less extreme reliance on justiciability doctrines to shield presidential actions from judicial review. The specific recommendations, however, must remain tentative and somewhat incomplete, as each of the proposals discussed merits at least an article of its own, if not a book. Still, the analysis and recommendations offered here should inform future scholarship and judicial opinions on issues concerning presidential power. This chapter closes by addressing an important claim by Adrian Vermeule and Eric Posner, that we should rely on political rather than legal constraints to check presidential power. It shows that law helps shape politics and that its role in doing so proves especially important when partisan division makes a drive to autocracy possible.

General Principles TA K I N G D E M O C R AT I C D E C L I N E S E R I O U S LY

The courts need to take presidential power’s role in undermining democracy seriously for both practical and formal reasons. An explanation of the rationale for this conclusion helps justify putting more emphasis on preventing



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democratic decline than recent decisions do even in the face of some countervailing considerations. The first chapter developed the formal reason for the courts to protect democracy. The avoidance of autocracy constitutes one of the most obvious and noncontroversial goals of those who ratified and drafted the Constitution. Allegiance to original intent requires taking the possibility of losing the Republic seriously and interpreting the Constitution to prevent that. And the case studies imply that serving the Founders’ goal requires a willingness to constrain presidential power. The main practical reason for taking democratic erosion seriously comes from government’s duty to avoid systemic risks, which I have canvassed in a previous book.3 While economists use the term “systemic risk” primarily to refer to an economic collapse, the term literally applies to the collapse of any system. It applies, for example, to the collapse of a political system. Avoidance of systemic risk constitutes the primary duty of all government officials, because collapses of systems produce catastrophic and often irreversible consequences. Citizens do not and cannot expect government officials to make optimal decisions. Indeed, because law almost always provides a framework for private decision making rather than taking the form of a mere transaction, officials generally cannot make optimal decisions. The success of government decisions generally depends on how the people the government affects respond to its policies and initiatives, and many of these responses defy quantitative prediction. But citizens have a right to expect governments to avoid man-­made disasters. As long as critical political, economic, and ecological systems remain intact, society can adjust to and recover from mistakes, even mistakes producing serious negative consequences. But when a critical system collapses, society’s capacity to correct errors can vanish or suffer significant impairment. A democratic political system may produce a lot of errors, but it provides a means of correcting at least the most egregious errors peacefully.4 If a democratic political system collapses, so that society cannot replace badly performing leaders, it may not correct egregious errors and actions. Once autocrats take over, they often run the state for their own benefit more or less permanently. They destroy freedom, in the elemental sense of citizens enjoying the worth and dignity that comes with a belief that they have some role in determining their society’s fate and will not suffer reprisals for exercising political agency. Winston Churchill conveyed an already old wisdom when he stated, “Democracy is the worst form of government, except” for all of the others. By taking democracy loss seriously,

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judges adapt the Constitution to the “various crises of human affairs,” thereby conforming their decisions to the original intent Justice Marshall highlighted in McCulloch v. Maryland. Yet, recent presidential power jurisprudence and the scholarly debate do not generally focus on maintaining a resilient democracy, even though this need figures more prominently in earlier judicial decisions (such as Youngstown) and earlier scholarship.5 Scholars often debate the case law in terms of its capacity to foster wise individual decisions. The Supreme Court’s jurisprudence, as we have seen, reflects a belief that presidential flexibility helps the country address serious problems, like the Cold War and the problem of international terrorism. Supporters of executive power, such as Vermeule and Posner, affirm that the President has superior capabilities to assess and respond to potential threats in the modern world.6 The Court’s jurisprudence gives weight to the executive branch’s superior ability to collect (sometimes secret) information and dysfunction in Congress. On the other hand, the Court’s critics, like Peter Shane, express doubts about the efficacy of relying on presidential decision making to deal with international relations. Citing examples like the Vietnam War and the War in Iraq, he finds the executive branch prone to insular groupthink leading to unwise, even dangerous, decisions.7 Critics see reliance on deliberation and collective decision making in Congress as a useful constraining influence. The Supreme Court’s statements about its own role also focus on what one might call error costs. If the courts interfered with the political branches’ decisions, judges’ incompetence in evaluating complex foreign affairs considerations likely will lead to error. On the other hand, the Court often disables one political branch, the Congress, from controlling foreign affairs through its approach, while enabling the President to do as he pleases in many separation of powers cases not based on explicit human rights claims, as we have seen. The Court’s decisions defeating mostly domestic accountability measures, however, do not fit this pattern of having a grounding in error costs. The Court has exempted the President from APA review without any suggestion that subjecting a President to APA review would increase error costs. The Court declined to make the President subject to damage actions for firing an employee giving needed information to Congress out of concern that otherwise Presidents would not be bold enough to fearlessly carry out presidential responsibilities. Preoccupation with presidential fear seems unwarranted in light of the ample evidence of an imperial presidency and the lack of experience about such fears preventing desirable and needed actions. In any event, the Court did not consider whether



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fear of damages for violating the law might lead to fewer presidential errors. The Court, confronted with a rare case of presidential criminality, provided a qualified immunity from release of information, with no consideration as to whether such an immunity may increase errors by impeding legislative processes. And when the Supreme Court invalidated a prohibition on removing the head of the Consumer Financial Protection Bureau for political reasons, it did not seriously consider the possibility that this change might produce more inappropriate enforcement or policy decisions than leaving those decisions in the hands of an official chosen jointly by the President and Congress. In these cases, the Court did not seriously consider error costs (except, arguably, in the case of judicial errors in criminal proceedings in the executive privilege case). Even where error costs can prove very large, the courts should consider that a democratic society can correct most mistakes and endure an awful lot of errors but cannot reverse substantial impairment of democracy. It follows that error costs should play less of a role in presidential power jurisprudence than avoidance of democracy loss. Another reason to give error costs a lesser role in presidential power jurisprudence than the possibility of democratic decline involves the possibility of congressional correction of judicial errors reining in the President. Under the Horizontal Sweeping Clause and the many enumerated congressional authorities, Congress can authorize acts that the President cannot pursue on his own authority unless they violate the bill of rights. For example, when the Supreme Court invalidated the system President Bush created to deal with “enemy combatants” associated with terrorist attacks, Congress created a similar system, but with more procedural safeguards.8 Even when the Court validates presidential action, it can create room for democratic correction by making it clear that Congress can override the decision. This congressional override option still remains potentially available with respect to both APA review and damage actions against the President (because the Fitzgerald Court expressly limited its immunity holding to judicially created causes of action).9 TA K I N G T H E P O S S I B I L I T Y O F B A D FA I T H I N T O A C C O U N T

The history of democracy loss suggests that the courts should consider the possibility of bad faith from a President in making judgments about presidential power. The Court’s jurisprudence, as we have seen, relies heavily on an assumption that Presidents will act in good faith. That assumption tends to point judges away from cooperating in the Founders’ project of creating a

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Constitution capable of restraining an autocratic President, as the Founders enacted and designed the Constitution with the expectation that sooner or later an ambitious President would try to become an autocrat. The Court must create precedent designed not only to facilitate a good President’s beneficial acts, but also to prevent a future President from abusing power and eroding or even ending democracy, as it did in Youngstown. A good example of taking bad faith into account to prevent democratic erosion comes from Justice Kennedy’s concurrence in the line-­item veto case.10 This concurrence shows that taking democratic erosion into account through consideration of the possibility of bad faith can improve judicial reasoning. The majority and the dissent tried to resolve the issue of the constitutionality of the line-­item veto on formalist grounds, and failed to provide convincing arguments. The majority held the line-­item veto unconstitutional because it changed the text of a bill without bicameralism and presentment.11 Justice Scalia in dissent argued that a line-­item veto does not alter the text of a bill, but simply makes part of the bill inoperative, which is the same thing a President does when he declines to spend money authorized up to a fixed limit.12 Since the line-­item veto could plausibly be looked at as an unconstitutional delegation of authority to amend a statute or as a constitutional delegation of implementation authority, neither opinion appears persuasive. Justice Kennedy, however, made a much more convincing argument against the line-­item veto by tying the issue to potential problems of democratic erosion under a bad-­faith President. Kennedy characterized the line-­item veto as potentially threatening the liberties of individual citizens, because a President could yield this authority to help one set of citizens and harm another.13 He also suggested that relinquishing congressional power over the budget in this form would likely prove permanent, since reclaiming the authority would require not just rewriting a year’s budget, but reclaiming a very broad authority in the face of a likely veto.14 His opinion took into account the Framer’s basic concerns about establishing a constitutional structure to maintain democracy and a rule of law. C A N T H E C O U RT S P R E SE RV E D E M O C R AC Y ?

A wise judge asked to consider presidential power’s potential to contribute to democracy loss in cases seeking judicial constraints on the presidency might ask whether judges have any power to restrain the birth of autocracy. After all, a determined autocrat may ignore judicial decisions. Constitutional law scholars have suggested that fear of noncompliance with a judicial ruling played a



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role in Marbury v. Madison, the case establishing the foundation for judicial review of exercises of presidential power (and legislation). Marbury confronted a decision emulated centuries later by the Polish government—­a head of state’s decision to withhold a commission to a new judge granted by a previous legislature controlled by another party. Apparently concerned that James Madison—­President Jefferson’s Secretary of State—­might disobey an order to deliver the commission, Justice Marshall famously asserted the Court’s right to review the legality of withholding of the commission whilst declining to do so on jurisdictional grounds. This problem of potential disobedience highlights the desirability of constructing precedent to constrain autocracy when a President who will obey judicial orders occupies the White House. Youngstown and the Brandeis and McReynolds dissents in Myers reflect this idea that judicial precedent created in ordinary times should check the accretion of presidential power lest it lead to autocracy in the future.15 Precedent established in stable times can act as a bulwark helping commit other political actors (including government lawyers and officials required by their oath of office to disobey illegal presidential orders) to restraining an autocratic President. We have also seen many instances when autocrats have obeyed judicial orders. Chapter 5 mentioned some of them. In addition, President Trump abandoned his order to withhold all federal funding from states not helping the federal government round up illegal immigrants and two travel bans in the face of judicial orders (although he continued to pursue the same objectives by different means, with mixed results).16 Authoritarians, especially in a country with a tradition of an independent judiciary like the United States, may obey judicial orders because the courts’ legitimacy makes defiance politically risky. At the same time, authoritarians sometimes ignore judicial decisions and try to obfuscate to avoid consequences, as the Polish government did in response to rulings of its constitutional tribunal. On balance, a court is poorly positioned to judge whether or not an autocratic President will obey its orders. This chapter will return to this issue in the area where the risk of presidential defiance is probably greatest, the war powers area. While one cannot completely write off the defiance problem, courts should not too readily assume that even an authoritarian will disobey a court order. Under this condition of uncertainty, judges should seek to constrain illegal presidential actions in appropriate cases. A court not willing to curb an authoritarian when it should do so under the Constitution has little value. Not only that,

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the failure to constrain—­or worse, a decision to approve the authoritarian’s illegal acts—­will help legitimate the authoritarian whose actions the court reviews and contribute to his effort to erode democracy and the rule of law. An even more challenging problem comes from the uncertainty about the value of a court’s contribution to containing autocracy, even if political actors obey judicial rulings in particular cases. Political actors create autocracy. And leading political scientists such as Steven Levitsky and Daniel Ziblatt point to political actors as the primary potential checks on autocracy. In their book, How Democracies Die, they identify the Republican Party and public opinion as the most likely checks on President Trump’s drive to autocracy.17 This conclusion rests on a wealth of studies that they and other political scientists have conducted identifying the public and political parties as key actors in constructing and destroying democracies in many different countries over long periods of time.18 But courts doing their duty can contribute to political efforts to resist autocracy, and, on some occasions, they have proven decisive.19 Tom Ginsburg and Aziz Huq, writing about “near misses”—­cases where democracy appears to be in trouble, yet survives—­explain that the Colombian Constitutional Court played a pivotal role in successfully ending its nascent autocracy.20 When its autocratic leader—­Álvaro Uribe—­sought a third term as President, his opponents sued to challenge his right to do so, and the Constitutional Court forthrightly held that he had no right to seek a third term. In what he likely viewed as merely a tactical adjustment (like those we have seen in Poland and Hungary), Uribe complied with the ruling and arranged for a close associate, Juan Manuel Santos, to run in his stead. Uribe’s handpicked successor won, but if Uribe planned to become the power behind the throne he miscalculated. The successor distanced himself from Uribe and left office after two terms. In South Africa, in a series of extraordinary rulings, the Constitutional Court in effect forced state authorities, including the Parliament, to check President Zuma’s corruption, which led eventually to his ouster.21 The Court required the Public Protector to investigate Zuma’s use of state funds, but Zuma refused to treat the Public Protector’s finding that Zuma must repay misused state funds as binding. The Court affirmed that Zuma must comply and required the Parliament to come up with a mechanism to force compliance. This last order finally caused Zuma’s party, the African National Congress, to jettison him. This case suggests that judicial decisions can influence political parties, whose decisions often determine democracy’s fate, in surprising ways. The Court’s decisions did



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not guarantee a democratic restoration, but they did provide the political process with openings to restore eroding democracy. State courts in the United States have recently turned back efforts to resist acceptance of the principle of rotation in office. After their party lost a hotly contested race for Governor in North Carolina, state legislators in North Carolina tried to strip the Governor’s office of many powers, but abandoned gubernatorial emasculation when the state courts rebuffed the effort. When the Wisconsin Governor refused to hold an election required under state law for two vacated state senate seats, he backed down when his own judicial appointee ordered an election.22 These successes illustrate not only the possibility that a court ruling can have a dramatic effect, but also the inability of judges to predict whether their rulings will have that effect (or any effect). It is very hard for anybody, especially judges with little political experience, to predict whether an authoritarian will comply with a court order or defy it. It is even harder to tell whether the tactical adjustments an authoritarian might make to work around a court order will prove successful. So, these examples suggest that courts, acting on principle without a means of predicting success, sometimes can play a pivotal role. Principled judges defending democracy against an authoritarian attack, however, will more likely make a more modest contribution to the effort to preserve democracy. Their rulings may help delegitimize an autocrat and strengthen political forces seeking to restore or preserve an eroding democracy, without proving decisive by themselves.23 Wojciech Sadurski, the leading expert on Poland’s democratic decline, explains that Vienna Commission opinions did not cause Poland’s autocratic government to change course.24 But, he notes that even these unofficial advisory opinions “supplied valuable resources to the government’s critics.”25 The greater potential of official judicial conclusions to delegitimize nascent autocracy does not mean that judges should decide cases based on who they wish to delegitimize, but it does mean that they should consider the constitutional value of democracy loss in making decisions even in the face of some doubt about the contribution’s effects. Twentieth-­century United States Supreme Court decisions striking down various voting restrictions also show how a judiciary can strengthen democracy by contributing to democratic politics. The voting rights decisions aided the restoration of severely eroded democracy in the American South. Democracy was sufficiently robust in the 1870s to permit the election of two thousand freedman, including sixteen black congressmen and numerous black state legislators. These

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results reflected the exercise of voting rights secured by the Fifteenth Amendment and the 1867 Reconstruction Act, which made black citizens into a majority of the voting population in Alabama, Florida, Georgia, and North Carolina in the 1870s. Black citizens’ voting, however, posed a challenge to the Democratic Party’s political dominance in the South. As several books on democratic decline suggest, the Democratic Party faced the same challenge autocratic parties supporting a single leader face, how to avoid the possibility of losing power in a subsequent election.26 In order to entrench the Democratic Party in power, many Southern states ended democracy for black residents through a combination of voting restrictions and terror. The Democratic Party rigged the elections to entrench the party in power more thoroughly than the new authoritarians do.27 After all, Fidesz, PiS, and the AKP never disenfranchised half of Hungary’s, Poland’s, or Turkey’s populations. The Supreme Court struck down a number of the Democratic Party’s voting restrictions in a long line of decisions under the Fifteenth Amendment beginning in 1915, thereby contributing to the sentiment condemning the lack of democracy in the South.28 Like Kaczyński’s PiS party, white Southern leaders responded to adverse rulings by pursuing the objective of entrenching themselves in powers by new means (e.g., switching to methods of disenfranchisement not yet invalidated by the courts) or defying judicial orders. The judicial decisions striking down voting restrictions did not restore democracy to the American South on their own. It took a concerted mass movement to overcome deeply entrenched white power in the South, leading, after a prolonged struggle, to the Voting Rights Act of 1965 and its aftermath. But Michael Klarman explains that judicial decisions delegitimizing some of the tools of white power contributed to the movement’s success. While many of the Court’s decisions had no practical effect, Smith v. Albright, which invalidated white primaries, helped to raise the rate of voting registration among Southern blacks from 3 percent in 1940 to 20 percent by 1952, a dramatic increase.29 When South Carolina tried to circumvent the decision by deregulating the political parties, Federal District Court Judge J. Waties Waring invalidated exclusion of blacks from Democratic primaries in South Carolina anyway.30 In the wake of this decision, other Deep South states abandoned consideration of deregulation as a strategy to circumvent Albright. The Supreme Court protected its invalidation of the white primary from another possible escape route, allowing private white-­only nominating clubs to dominate the process, in Terry v. Adams.31



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The Court’s Albright decision intersected with social forces advancing restoration of black citizenship and strengthened them. Newspapers in the South internalized Albright’s message, declaring that blacks should have “fair and just political . . . rights” and opposed the usual evasive maneuvers.32 And the decision probably encouraged progressive white Southerners, who saw newly enfranchised black citizens as potentially helpful allies in the fight for liberal reforms.33 The white political establishment in a number of areas internalized the values embedded in Albright and actively encouraged black registration, with registrars in Atlanta setting up shop in black schools to sign up more black voters.34 Black voters found Albright highly salient and “quickly began registering and demanding access to Democratic party primaries.”35 Their raised expectations also led them to sue to end other discriminatory practices, when registrars deployed them to deny black citizens the rights promised in Albright.36 As a consequence of increased economic status for Southern blacks in the wake of World War II, the NAACP’s membership and its capacity to meet demands for new litigation challenging voting restrictions grew.37 As federal judges issued favorable rulings in a number of these cases, registrars and the white establishment, even elements hostile to black suffrage, often concluded that permitting black suffrage might prove safer than continuing to evade Albright.38 Albright, however, also encouraged a white backlash in some places. Alabama responded with a constitutional amendment putting a literacy test in place to perpetuate black disenfranchisement, and leading politicians explicitly defended white supremacy and even threatened violence.39 These threats, however, combined with actual attacks on black citizens, led to congressional hearings and counterpressures. And some of the people opposing the threats of violence in the 1940s even understood the role such threats play in establishing autocracy in other countries, seeing in them echoes of the recently defeated Adolf Hitler.40 The political process the Supreme Court decisions helped support led, at length, to passage of the Voting Rights Act and revival of substantially impaired democracy, with black turnout nearly matching or exceeding that of white voters in many of the states targeted by the Voting Rights Act by 2004.41 While this example does not come from the jurisprudence of presidential power, it does have relevance to cases about presidential power. Eroding democracy to establish an autocracy requires entrenching the President’s party by bending the rules of electoral competition, and the voting rights story is about bending the rules of electoral competition to entrench a ruling party. Furthermore, the case studies abroad as well as the pivotal role of the Senate

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in enabling President Trump’s attack on the rule of law suggest that the ruling party’s grip on power constitutes an important bulwark in establishing and perpetuating autocracy. This story has elements lending support to the idea that the judiciary may meaningfully contribute to checking autocracy, but also presents a cautionary tale. On the one hand, the autocrats in Poland, Hungary, and Turkey likely enjoy shallower public support than the Southern white supremacists enjoyed among the electorate. If the courts can contribute to reversing democratic erosion in a case involving such deeply entrenched social norms, it might be easier for courts to aid political movements checking an autocrat swimming against a more than two-­hundred-­year-­old tide of American democracy. Furthermore, the voting rights story suggests that courts can preserve and indeed enhance their prestige when they issue orders that political authorities often evade or defy. Indeed, the cases aiding democratic restoration in the South in spite of defiance and evasion of judicial orders arguably enhanced the federal courts’ prestige and efficacy. Finally, because Americans have long treasured democracy, efforts to support it will more likely bear fruit than other judicial efforts supporting social change. Michael Klarman concludes that Albright proved more efficacious than Brown v. Board of Education, because full and fair democracy enjoyed more popular support than racial integration of school children.42 On the other hand, the restoration of democracy once substantially eroded required a more than hundred-­year effort. The length of time needed to overcome entrenched democratic erosion suggests that the courts must contribute to social efforts to preserve democracy before the threat arises or at least before an autocracy firmly establishes itself in power. Autocratic entrenchment condemns democratic forces to decades of struggle and the bloodshed that comes when social movements challenge deeply entrenched power. The foregoing suggests that judges should take the threat that too much presidential power poses to democratic governance into account before an autocracy establishes itself and even after it begins to erode democracy. Much of the law needing this attention primarily focuses on domestic affairs. But some of it concerns foreign affairs and national security. And, as the discussion of implied power shows, concerns about foreign affairs and national security have tended to undermine domestic executive branch accountability. So, thinking about the relationship between national security and democracy proves essential in some contexts, and indirectly relevant to a great deal of the law of presidential power.



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C O N C E P T UA L I Z I N G N AT I O N A L S E C U R I T Y A S D E F E N S E O F D E M O C R AT I C S O V E R E I G N T Y

We have seen that the courts frequently apply extraordinary deference to the President’s actions when he claims to protect national security, either by strengthening justiciability barriers, failing to meaningfully review presidential decisions, bending statutes to give the President a free hand, or implying broad powers not stated in the Constitution. Federal judges understandably take national security very seriously and may fear that constraining the presidency from freely addressing national security issues imperils the country. Nevertheless, we have seen that the Supreme Court sometimes vindicates democracy even in cases implicating national security. Youngstown provides the most vivid example, as the principal concurring opinions flagged the possibility of democratic erosion in insisting that a President cannot assume emergency powers to support a unilaterally initiated war.43 And in the cases arising from the imprisonment of alleged “enemy combatants” the Court announced that national security concerns do not write the President a “blank check” and constrained him in several ways. These constraints provided a basis for the elected legislatures to take on the policy issues about how to reconcile liberty and security, with the Court acting as a countermajoritarian force to make sure that Congress fully considered the liberty issue. The case studies and the experience in Nazi Germany vindicate these decisions by suggesting that authorizing Presidents to address national security issues as they see fit can imperil the country. Autocratic elected leaders often convert generalized fears of outsiders into major national security threats as a central strategy for justifying moves to undermine democracy. And all too often, as in the Turkish and Hungarian cases, they soon find it convenient to treat their domestic political opponents as national security threats. The permanence of the terrorist threat makes demonization of political opponents more likely and potentially more long-­lasting than in the past. This book cannot comprehensively review all of the legal issues that national security and foreign relations concerns animate, even though many of them might benefit from more regard for risks of democratic erosion. But this section explains how understanding of democratic erosion might help us better conceptualize national security in ways that may lead courts to wiser outcomes across a range of issues, and this chapter will make a few concrete recommendations about national security informed by the case studies. The Supreme Court has,

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after all, never defined national security and accordingly has not adequately explained why a threat to national security often triggers such generous treatment of presidential initiatives. A proper understanding of national security suggests that the courts should give democracy preservation primacy over prevention of physical attacks, with some very limited exceptions. National security, properly understood, ultimately concerns itself primarily with preservation of the American People’s control over the United States, not with the protection of each citizen of the United States from attack. That point, however, requires defense. And its implications will require even more analysis. The attacks of September 11, 2001, killed three thousand innocents, and the federal government has ever since considered avoidance of a repeat of such a calamity a major, if not the major, national security issue facing America. But why do attacks killing three thousand people harm national security instead of just constitute a horrific crime? It cannot be said that the possibility of losing three thousand lives in and of itself constitutes a threat to national security. Air pollution kills tens of thousands of Americans every year and so do car accidents, but we do not treat either as a national security threat. Terrorists might cause more destruction in a future attack than they did on 9/11, but climate disruption, a key environmental threat, will surely cause much greater destruction than it has in the past. While specialists consider climate disruption a national security threat, they tend not to rely so much on the domestic death count, but upon its propensity to cause destabilizing immigration flows and war.44 Deaths occurring as an unfortunate by-­product of ordinary productive activity, such as manufacturing and transportation, might merit different treatment than the deaths that deliberate violence produces. The latter appears more horrific and antisocial and may merit a firmer response for that reason. This difference, however, cannot explain the extraordinary treatment of the possibility of a recurrence of a horrible terrorist attack like that which took place on 9/11. We experience about thirteen thousand deaths a year due to gun violence, almost none of which involve terrorist attacks.45 Far from treating the perpetration of murder as an existential threat to society, we protect perpetrators by forbidding any criminal penalties absent proof beyond a reasonable doubt that the accused committed murder and facilitate the violence by permitting private citizens to own guns, sometimes as a matter of constitutional right. This shows that we are willing to give defending democracy and human rights primacy even in the face of enormous individual violence and harms.



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Nor do we treat most mass shootings as national security threats. Mass shooters receive the protection of ordinary criminal law and America’s solicitude toward gun rights, whereas American law created a system of detention for foreigners linked to terrorists, some of whom the government did not accuse of any crime. So, defining national security by the salience of the threat does not work either. The term “national security” suggests a focus on protecting the nation as an entity, not merely its individuals’ physical security. The term, after all, refers to the security of the nation, not necessarily the security of its people. People live with insecurity all the time, even threats to their very existence. The American nation defines itself as a constitutional democracy. The founding of the nation consisted of actions establishing a republic, where the people of the nation exercised sovereign power over the entire United States of America. Therefore, one might say that the nation remains secure as long as threats to its People’s sovereignty over the United States remain at bay. A republic preservation approach would harmonize contemporary views of national security with those that the Framers’ concerns about avoiding invasion by Britain or France imply. If a country seemed likely to physically attack and invade us, this would constitute the quintessential example of a national security threat. A successful invader might or might not kill more people than automobile accidents and pollution, but it would substitute its control over our government for that of the People and therefore would destroy America’s sovereignty. Therefore, we should view national security primarily as addressing threats to destroy the nation as a democratic sovereign entity. From this perspective, the courts and society should view threats of foreign interference with an election as a paradigmatic national security issue. If a foreign power can flip vote counts over the Internet, it, not the American People, controls the United States. Yet, the acceptance of terrorism as a national security threat does not, at first glance, seem to comport with a definition focusing on preserving the nation. Terrorists can attack our citizens, but they cannot occupy the country and probably cannot directly destroy the nation itself.46 They do not appear to pose a threat of invasion, but rather only a threat similar to that of other murderers. But do the terrorists have the capacity to destroy our democratic government? The answer to this question is yes. The reasons for this answer, however, prove as important as the answer itself. President George W. Bush characterized the 9/11 assaults as an attack on our freedom. He claimed that the terrorists hate our democratically elected

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government and the freedoms it safeguards, such as freedom of religion and the press, as well the freedom to assemble and to vote.47 If the terrorists have the capacity to destroy our democratically elected government and curtail civil liberties, then their attacks would constitute a threat like the threat of national invasion or cyberattacks on voter registration rolls and vote-­counting machines. Bush’s remarks suggest that terrorism constitutes a national security threat, because terrorists may destroy democratic governance by causing the government to lose its democratic character. Democratic erosion as a direct response to terrorism has occurred to a degree already, as our respect for human rights has declined in the wake of 9/11. We have experienced an erosion of our freedom from unreasonable searches and seizures through routine warrantless searches at airports and other public venues. We have also seen an increase in electronic surveillance. So, terrorism has triggered an erosion of the human rights component of democratic government. Basic respect for human rights distinguishes democratic governments from lesser governments. In saying this, I do not mean to deny that some erosion of human rights will take place to address terrorism or to debate how much erosion is appropriate. I am simply noting that we have chosen to erode an important democratic norm under terrorism’s pressure. Terrorism can also cause a loss of democratic government in the sense of a government under the People’s control. Citizens fearing terrorist attack may elect a demagogue with authoritarian tendencies who manipulates their fears to win the presidency and then entrenches himself and his supporters in power. An autocrat once entrenched in power can enact policies that only a minority of the public favors without suffering a serious electoral loss. As we have seen, elected authoritarian leaders can then dismantle democratic constraints. They frequently use fear of real or imagined outside threats to justify increasing their personal power. The history of democracy loss in Poland, Turkey, (and Nazi Germany) suggests that a minority of voters can suffice to start the process of unraveling democracy. But notice that these points about the capacity of terrorists to destroy democracy show that terrorists cannot defeat democracy by themselves. They can only hope that their actions cause participants in the democracy to dismantle it. In other words, we, not they, ultimately determine whether we lose our democracy after terrorist attacks.48 In particular, terrorism dismantles democracy when the government overreacts to real or imagined terrorist attacks. When our leaders invoke terrorism to



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justify restraints on human rights or autocratic policymaking, they undermine democracy.49 Hence, the threat to democracy stems not from the terrorists’ acts by themselves but rather from the government response to those acts and the possibility of future attacks.50 Because terrorism will most likely harm national security in the true sense by triggering overreaction by the government, the courts should protect democracy from overzealous reaction or manipulation of national security concerns. Fortunately, the Supreme Court’s rulings in some of the Guantanamo cases suggest an understanding of the need to protect democracy from government overreaction. The President, especially, poses a profound risk to democracy in the wake of a terrorist attack. A President faces immense pressure from a terrified public to do everything possible to prevent future attacks, and the office of the President often has the power and resources to act quickly on that impulse. Of course, democracy cannot survive a President doing everything possible to prevent a future terrorist attack. Doing everything possible to prevent a terrorist attack implies an end to civil liberties by giving up on the People’s monitoring of government in favor of an authoritarian state where the state extensively monitors its People to prevent subversion. Worse, a President wishing to create an autocracy can manufacture a crisis (as in Hungary’s immigration crisis) or exploit a real one (as in Turkey in 2016 and Hungary in 2020) in order to justify democracy-­destroying measures. Acceptance of broad independent presidential authority over national security or anything else tends to legitimate claims of broad presidential control over the executive branch. If the President properly enjoys significant independent policymaking authority, then sole control over the executive branch may seem appropriate. Thus, broad horizontal powers tend to justify strong vertical powers. “Federalist No. 47” quoted Montesquieu’s argument that uniting executive and legislative powers “in the same person or body” ends liberty, because the “monarch or Senate” can “enact tyrannical laws to execute them in a tyrannical manner.” Since the President now possesses vast legislative authority by virtue of both congressional delegation and judicial creation of a broad presidential power to defend national security and conduct foreign affairs, the danger Montesquieu and the Founders warned of from a monarch has become quite acute. Judicial review and independence of executive branch officials, however, can ameliorate the danger. The Hamdi Court recognized the importance of judicial review in

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national security cases to avoid inordinate concentration of power in one branch when it stated that judicial deference during hostilities “condense[s] power into a single branch of government.”51

Recommendations Recommending that the judiciary take democracy loss seriously, give error costs less weight, consider the possibility of presidential bad faith, and conceptualize national security as about defending democratic sovereignty suggests a shift in attitude toward presidential power. This section uses the information gleaned from the case studies about how democracy loss occurs to suggest how this framework, although quite general, may lead to better outcomes. Specifically, this section uses the lessons learned to suggest severely limiting the advance of the unitary executive theory, improving presidential accountability, and limiting justiciability doctrines’ tendency to aggressively protect the President from judicial review. T H E U N I TA R Y E X E C U T I V E

The role of centralization of executive authority in Turkey, Hungary, Poland, Nazi Germany, and other countries implies that democracy preservation requires the Supreme Court to limit and consider overruling Seila Law, which embraced the unitary executive theory. As we have seen, recent Presidents tightened their grip on the executive branch of government even before Seila Law. The political branches of government, however, have put constitutional customs at odds with the unitary executive theory firmly in place, sometimes in statutes that the Court approved and sometimes through informal constitutional customs. For example, the political branches have put independent agencies in charge of elections and the media, thus establishing an important check on a potential drive toward autocracy. The Court approved this approach in the 1930s, and Seila Law distinguished the older cases, rather than overrule them, claiming that the single director of an agency poses a greater threat to liberty than a commission.52 But the case contains dicta suggesting that courts may invalidate the removal protections making commissions independent by classifying at least some of their functions as executive rather than legislative.53 The courts should not rely on these dicta, which are inconsistent with prior cases anyway. Giving the President control over independent agencies would provide autocratic Presidents with powerful tools to subdue democracy.54 We have seen



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that giving the chief executive political control over the formerly independent media authorities and electoral commissions in all of the cases examined led to decisions tilting the electoral playing field and shrinking the space for dissent. Our Federal Communications Commission and Federal Election Commission probably could perform the same functions if the courts destroy the for-­cause removal protection of their commissioners and a President determined to hold on to power abuses his removal authority to replace neutral or opposition commissioners to create partisan commissions. The history of prosecution in Chapter 5 suggests that judges should not deploy the unitary executive theory to enhance central control of prosecution decisions. The case studies’ teachings suggest that individual rights litigation cannot adequately protect the Republic from a President in firm command of prosecutorial and investigative resources and determined to use prosecution to consolidate his personal power by undermining the rule of law and changing electoral outcomes. First of all, absent repeal of doctrines respecting prosecutorial discretion, courts lack the power to check a President’s decisions to tolerate corruption among his supporters. Second, we have seen in the Hungarian case that autocrats can quite effectively sideline opponents by charging them with crimes, while avoiding the risk of judicial reversal by not actually bringing the cases to trial. Third, the pre-­coup Turkish case suggests that autocrats can increase fear by investigating political opponents’ activities extensively and then charging them for minor violations of laws that normally would not merit prosecution. A judge cannot legitimately thwart this tactic at trial if the prosecutor can prove a violation. That limitations on judicial capacity to check prosecutorial abuse fueling a drive toward autocracy suggests a broader lesson—­the Framers and the Court are correct to emphasize the importance of institutional checks and balances as the primary protection of individual rights.55 A judiciary that creates or condones structures favoring autocracy lacks the power to undo many of the pernicious effects that may ensue, effects that can seriously erode a democracy. In spite of the absence of hierarchical control over prosecution in the early Republic, the Seila Law Court characterized prosecution as an executive function that the President must have control over. This view may appear congenial to many judges in spite of its incongruence with early constitutional custom, and could have pernicious consequences. Thankfully, in light of the oppression that sometimes flows from tight chief executive control over prosecution, we have customs and statutes in place that

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limit the potential for presidential abuse. If issues stemming from these limits come to the courts, the judges should consider that the Constitution’s ratifiers and framers aimed to prevent autocracy and that the history of democracy loss shows that giving a President control over prosecution gives all future Presidents a powerful tool for destroying democracy. This means that judges cannot only rely on the proposition that giving the President additional power will help a conscientious President implement law properly. They must also ask if giving Presidents additional power will help an autocratic President abuse that power and thereby undermine the rule of law. Thus, for example, we have a constitutional custom precluding presidential or Attorney General interference in individual investigations and prosecutorial decisions.56 We have seen that autocrats often interfere in prosecutorial decisions directly or indirectly to shield themselves and their supporters from corruption investigations and to target political opponents. The courts can help maintain the constitutional custom of prosecutorial independence by allowing it to play a role in obstruction-­of-­justice cases. The courts could construe the obstruction-­of-­ justice statute broadly to apply to the President and to reinforce, rather than undermine, this crucial constitutional safeguard. Because the statute only prohibits “corrupt” interference with law enforcement, it cannot justify judicial decisions completely prohibiting presidential interference in prosecution.57 But it may justify intervention when there is reason to suspect that a President intervenes to protect his friends or harass his enemies.58 And, in light of the background custom precluding presidential involvement at all, it should restrain Presidents quite broadly when a corrupt motive might have played a role in a decision. It is more important to stop presidential obstruction of justice than private citizens’ obstruction of justice, because a President functions as a repeat player and presidential obstruction can harden into a democracy-­threatening practice. And preventing presidential abuse of authority fully comports with the duty-­based executive branch the Founders aimed to establish. A natural construction of the obstruction-­of-­justice statute also need not preclude the President from intervening to stop prosecutorial misconduct, the main objective of the Take Care Clause in this area. To protect the Senate’s role in appointments, a crucial check on presidential abuse of prosecutorial power, Congress has established constraints on presidential appointment of temporary federal prosecutors and amended them from time to time. The courts can construe statutory constraints on temporary appointments to preserve the Senate’s role in appointments based on the general



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principle of construing statutes to avoid constitutional issues. It might even consider implying constitutional constraints on the duration of temporary appointments to preserve Senatorial checks on permanent appointment.59 The capacity of temporary appointments to destroy the Constitution’s senatorial check on presidential appointments arises from the following dilemma. Under Myers and Seila Law, the President has the statutory power to remove many high-­level prosecutors without the Senate’s concurrence, even if the appointment requires Senate approval. If a statute gives the Attorney General the right to appoint a “temporary substitute” and does not limit the appointment’s duration, the President can have the Attorney General remove a prosecutor insisting on upholding the rule of law and replace the honest prosecutor with a crony dedicated to bending or even breaking the law to help entrench the President and his allies in power.60 An autocratic President can avoid the necessity of securing Senate approval of the replacement by simply leaving the “temporary” appointee in place and failing to nominate a replacement.61 Thus, the unitary executive theory’s insistence on a presidential at-­will removal power and acceptance of unconstrained temporary appointment can disable the Senate’s responsibility to check whether those heading key departments will serve the rule of law. This problem played a role in the controversy over the firing of U.S. Attorneys that led President George W. Bush’s Attorney General Gonzalez to resign.62 Under section 502 of the Patriot Improvement and Reauthorization Act (Patriot Act Amendments) then in place, Gonzalez could appoint “temporary” successors and entrench them permanently if President Bush failed to nominate a successor. This approach to removal and appointment would undermine the Framers’ attempt to secure a rule of law safe from a would-­be despot’s predations. Congress has at various times employed remedies to preserve the rule of law from a partisan President’s willingness to direct prosecution in a way that would undermine democracy, but one can imagine a court dedicated to the unitary executive theory invalidating some or all of them. Prior to the Patriot Act Amendments mentioned above, the statute only authorized judicial appointment of temporary replacement U.S. Attorneys. After the Gonzalez incident, Congress left the Patriot Act’s provision for presidential appointment of temporary replacements in place, but made the term expire after 120 days. If that term expired without a confirmed nominee assuming the position, a federal judge would appoint the replacement. Adherence to and overzealous application of the formalism underlying the unitary executive theory could lead a court to reject statutes preserving the

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Constitutional provisions ensuring survival of a rule of law in the U.S. Attorney’s office in the face of autocratic opposition.63 On the other hand, Seila Law states that its rule authorizing political dismissals does not apply to inferior officers.64 Courts should characterize prosecutors making specific charging decisions as inferior officers. We have seen that autocrats have found it useful to establish political control over administrative law courts. American administrative law judges enjoy civil service protection and must pass competitive examinations to earn appointments. Even the Myers Court recognized congressional authority to maintain civil service protections and generally decide who gets them.65 Given the vast responsibilities of the President and the demands on his time, it is hard to imagine him wanting to remove an administrative law judge except as part of a political effort to destroy the rule of law or at least avoid independent adjudication of law’s meaning. Extending the unitary executive principle to overrule precedent to reach these quasi-­judicial officials makes no sense. The concern about autocracy should also encourage both Congress and the courts to disfavor at-­will removal authority for the President.66 Vesting the President with for-­cause removal authority gives the President adequate authority to take care that the laws be faithfully executed by authorizing him to fire officials who do not properly perform their duties.67 At the same time, for-­cause removal authority poses little danger to democracy, because it allows officials who obey the law and execute their duties properly to remain in place, even if they resist improper presidential initiatives. At-­will removal authority presents a constant temptation for an autocrat to fire civil servants (and high officials) who uphold the rule of law, and replace them with officials who will bend or break the law to keep an autocratic President in power. At-­will removal undermines the goal of the Constitution’s particular arrangements about appointments, to avoid filling the government with obsequious instruments of presidential pleasure. At-­will removal serves a different goal than the Framers’ goal of faithful law execution—­facilitating presidential control over policy.68 As shown in Chapter 1, the Founders vested policymaking authority in Congress. The President’s major role as a policymaker stems from the rise of the imperial presidency, when Congressional delegation of vast authorities to the executive branch and the rise of mass media caused a shift favoring presidential policymaking. To the extent that unitarians endorse the unitary executive theory’s political dimension, they may take an anachronistic view of original intent, attributing modern views of the presidency to the Founders.



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Presidential control over policy through control over the executive branch undermines the Framers’ values. They sought, quite clearly, a stable rule of law, not wild swings in policy every four (or eight) years. Living constitutionalists, however, may find presidential control over policy desirable and may view at-­will removal as useful in facilitating that.69 Because of the breadth of some modern delegations of authority, a President and another federal official may favor two different policies in a situation where both policies conform to the law. At-­will removal presumably would allow the President to effectuate his policy preference, even when the official possessing authority delegated by Congress insists on implementing a contrary policy. Since our citizens elected the President, democratic values may favor the presidential policy choice in this case. Unfortunately, reading the Constitution, as the Seila Law Court did, to require presidential at-­will removal authority does not distinguish removals in the service of legal and appropriate presidential policy from removals breaking down the legal order. With respect to the question of whether the Constitution requires at-­will removal, the principle favoring preservation of democratic institutions over possible avoidance of error should govern. Furthermore, the possibility of error considerations favoring at-­will removal proves extremely slight. The President’s prestige as an elected official, ability to make key appointments, and influence over the budget make determined resistance to legal and appropriate presidential decisions extremely unlikely, even without a removal threat. Even if this unlikely determined resistance to a reasonable decision arises, it may reflect a difference between a politically motivated President and an expert official. One cannot predict a priori who favors the better policy position. And if the President’s preference really is much better or more popular, but thwarted by a recalcitrant official, the President can get Congress to require the decision he seeks. The error costs involved in denying the President at-­will removal will likely prove vanishingly small. On the other hand, determined resistance often surfaces precisely because the President has decided to subvert the law, either to amass power or simply to achieve a policy objective by means that the body charged with making policy, the legislature, would not approve. When the President asks a government official to take actions in violation of the law, the Constitution’s Oath Clause requires resistance. Examples of policies exciting internal executive branch opposition include decisions to unilaterally terminate the national bank, torture enemy combatants, spy on American citizens, and more recently, violate immigrants’

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rights.70 The Framers put bicameralism and presentment in place to make legal change hard. The temptation to take the shortcut of maladministration instead of making the compromises necessary to obtain the legislative consensus that the Constitution demands always exists, but the case studies suggest that an authoritarian seeking to impose his will on a reluctant society will abuse at-­will removal authority in a large number of cases. Allowing at-­will removal leaves the polity extremely vulnerable to a central strategy employed by authoritarians to destroy the rule of law, rapid replacement of dedicated civil servants (including high officials) with increasingly pliant lackeys. Democracy preservation suggests that the Seila Law Court erred when it changed the Constitution to require the kind of centralization of authority that severely eroded the rule of law in Poland, Turkey, and Hungary. For that reason, the Supreme Court should seriously consider overruling Seila Law and the courts should it read it narrowly and its prior precedent broadly to protect independent agencies, civil servants, and most federal prosecutors in the meantime. P R E S I D E N T I A L A C C O U N TA B I L I T Y A N D E M E R G E N C Y P O W E R S

The courts should recognize that the imperial presidency exists and that realizing the Framers’ goals of maintaining the rule of law in this context requires presidential legal accountability. Richard Fallon has provided an analytical framework that proves helpful in justifying a restoration of presidential accountability.71 While he points out that most people read the Constitution as authorizing the President to do what is necessary to save the nation from imminent peril, he warns against allowing the extraordinary to generate general rules that distort the entire constitutional framework. In other words, he advocates creating a generally principled constitutional framework cabining presidential power, but authorizing departures from it at least to cope with genuine imminent threats to the nation’s survival.72 He justifies this framework by analogy to a deontological approach to individual rights. With respect to individual rights, the courts often treat rights as trumps. But a sufficiently compelling state interest can justify a departure from a rights-­protecting norm in an individual instance. This analogy suggests that the President should remain subject to ordinary statutory and constitutional restraints, but with an understanding that a court may relax the constraints in truly extraordinary circumstances. An alternative approach from our constitutional history involves a President recognizing the illegality of executive action under extreme duress, but seeking retroactive approval from Congress after the fact. Both approaches allow a legal



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framework not geared toward extraordinary circumstances, but instead suited to preservation of the rule of law to remain in place. In other words, it avoids having real or hypothetical hard cases generate bad law. Subjecting Presidents to ordinary statutory constraints construed in the same manner as statutory constraints on the rest of the executive branch would constitute an important step in restoring a rule of law. It would discourage a President with autocratic inclinations from issuing executive orders undermining statutory purposes in order to establish personal unilateral control over policy. But the case studies suggest that an authoritarian President will have no qualms about making bogus claims to support his action. He will readily proffer plausible-­sounding reasons and make up facts in order to take actions based on policies contrary to those a statute demands. Because such policies may not facially violate a statute’s terms, courts cannot police this abuse of executive power unless they engage in some examination of the factual basis and stated rationale for presidential decisions. This means that a rule of law requires some policing of bogus claims. Fortunately, the Constitution requires that all executive branch action, even presidential action, be nonarbitrary.73 The Supreme Court recognized that the Due Process Clause requires this before Congress codified the Court’s arbitrary and capricious test in the Administrative Procedure Act, and even applied it to the President and another kind of head of state, a Governor.74 Furthermore, the Court reaffirmed the principle that presidential action must have a factual basis in its nondelegation doctrine case law.75 The Court premised acceptance of broad delegation on the notion that the Court would police the delegation to make sure that the executive branch stayed within an assigned field and held that this policing requires judicial review of a presidential decision’s factual basis. I have explained elsewhere that separation of powers principles also require review of a presidential decision’s factual basis; otherwise the Court has inadequate means of policing faithless presidential law execution.76 Creating judicial capacity to check abuse of presidential authority requires the Court to recognize that Franklin’s exemption of the President from APA review does not exempt him from constitutional requirements for reasonable decision making. As Chapter 2 pointed out, the nondelegation doctrine and the Due Process Clause still require that the courts reject arbitrary presidential decisions.77 Unitarians especially should favor review of presidential action for arbitrariness. The constitutional anomaly involved in allowing the President to exempt the executive branch from normal arbitrary and capricious review by personally

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making a decision that an administrative agency could make becomes even more pernicious under a theory that considers all executive branch actions to be basically presidential. Allowing arbitrary presidential action encourages autocracy. The analysis in Chapter 5 implies that national security requires not just presidential freedom to act on the President’s stated perception of threats, but checking Presidents who might abuse national security authority to justify incremental accretions of power putting democracy at risk. We have seen how false or exaggerated claims about threats from outsiders helped justify autocracy in Turkey and Hungary, leading in Turkey to terrorism prosecution of opponents of the governing regime. Indeed, the need for judicial supervision to help preserve democracy and the rule of law becomes especially acute when a President claims a national security justification for problematic action, as then Judge Kavanaugh recognized in his dissent from the pharmaceutical plant case. Increasing the role of democracy preservation and reducing the role of error costs suggests an attitude of less deference to the President than we sometimes have seen in recent Supreme Court cases. To take a concrete example, consider Trump v. Hawaii, which upheld Trump’s third ban on Muslims travelling to the United States.78 Trump v. Hawaii reflects a concern that if the Court seriously reviewed presidential actions limiting immigration in the name of national security, it might someday reverse a presidential action needed to protect us from attack. These concerns led the Court not to follow cases demanding heightened scrutiny of government actions infringing on civil liberties.79 But an autocratic President may read the decision as creating precedent for allowing Presidents to use bogus national security rationales to defeat individual rights claims and, indirectly, democratic governance.80 The Court should have considered how this case might encourage democratic erosion. A focus on the potential democracy abuses such a decision might foster should have led to some consideration of the actions such a precedent might lead to under an autocratic President (Trump or some future President). The specter of dictatorship suggests more broadly that the legal process analysis undergirding the debate about national security fact deference (the tendency to defer to executive branch factfinding and prediction in the national security context) needs broadening. That debate focuses on the questions of relative institutional competence mostly assuming good faith by all involved. The Court needs to construct law that considers the possibility of an autocratic President assuming office, whether or not it wants to consider bad-­faith claims in individual cases.81



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The Court has explained that judges have little national security expertise and limited capacity to evaluate the importance of national security threats and justified deference on those grounds. But courts adjudicate matters that judges have little capacity to evaluate all the time in the regulatory arena and in other cases. The judges compensate for their limitations by deferring to the executive branch’s technical judgments, but they do not usually refrain from meaningful review altogether, as they sometimes do when the President invokes national security concerns (and other foreign policy concerns). The Court seems to live in morbid fear that if it dared to engage in any meaningful review of national security claims at all, the courts would end up destroying the nation by checking some vital presidential action. It is hard to imagine that a court will prevent a President from taking a realistic measure addressing a real threat no matter what the standard of review.82 And if a court errs, Congress may correct the error. The larger risk of democracy erosion, a serious threat to American national security, requires that the courts at least check fake national security claims. Doing so will not prevent a court from deferring to executive branch judgment when the government acts in a nonarbitrary manner to address a real threat. The courts’ approach to emergency powers needs to take into account the role they have sometimes played in accelerating democratic decline. We have seen that the Turkish Constitutional Court facilitated widespread abuse of emergency powers destroying Turkish democracy when it disclaimed any authority to review this question, reversing a prior decision. The courts must, therefore, meaningfully review presidential assertion of emergency power. The United States Code currently contains 123 statutory provisions granting the President unilateral emergency powers, not counting statutes aimed at specified types of emergencies (such as insurrections).83 The statutes create emergency power touching almost every area of national life—­the military, criminal law, transportation, communication, public health, land use, agriculture, federal pay, and trade. Some statutory provisions provide authority that could prove very useful to an autocrat, such as the power to escape prohibitions on testing chemical or biological weapons on unwitting human subjects, to shut down or take over radio stations, to take over wire communications (in the presence of a threat of war), to block any citizen’s financial transactions in which a foreign national has an interest, and to sell public property free of statutory restrictions limiting potential corruption. The vast majority of these statutory provisions contain no criterion for what constitutes a national emergency and do not

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specifically require a relationship between the substantive authority used and the circumstances giving rise to an emergency declaration. So, for example, if no constitutional limitations apply, a President could declare that global climate disruption posed a national emergency and use that declaration to perversely suspend some state law requirements under the Clean Air Act,84 sell federal property to his friends, seize political opponents’ vessels, and suspend a host of statutory requirements governing the armed forces in order to put cronies in positions of authority. The courts should respond to this situation by disallowing bogus rationales for deployment of emergency authority, and some judicial precedent supports doing that. The courts should require that the circumstances justifying invocation of an emergency meet commonsense understandings of what an emergency is, that the claim of an emergency be nonarbitrary, and that the power used have the capacity to address the emergency justifying the invocation of emergency powers. When President Trump invoked emergency powers to justify building a wall on the southern border, many commentators noted that the statutory provisions he relied upon do not define an emergency. A basic rule of statutory construction requires courts to construe terms to match their plain meaning as understood by ordinary people. Common understandings of the word “emergency” require that an emergency must arise from a sudden new situation, create a serious risk, and require a quick response.85 If a court is not convinced that the circumstances before it meet that test (especially the quick response requirement), it should expect the President to seek legislative endorsement of his policy, not allow him to invoke emergency powers on his own. Democracy preservation requires a reasonably narrow construction of emergency powers, albeit with some deference when reason exists to suspect a truly imminent catastrophe. The Supreme Court has applied the arbitrary and capricious test to review exercises of emergency powers in the manner described and overruled declarations of emergency on several occasions, as we saw in Chapter 2. In Ex Parte Milligan, the Court declined to credit the executive branch’s determination that the emergency of the Civil War required application of martial law in the state of Indiana.86 It held that the necessity for martial law cannot arise from a “threatened invasion.” This can be considered a determination that no emergency existed in Indiana, even during a Civil War. In Sterling v. Constantin, the Court held that no evidence supported the Texas Governor’s declaration that an insurrection justified calling out the National Guard to keep oil production low for conservation purposes and approved a federal court’s injunction of conservation measures



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said to be justified by this emergency.87 It thus implemented the principle that an emergency must have a factual basis. The Court has also on several occasions acknowledged an authority to determine if an emergency justified the government’s measures. In Ex Parte Milligan, the Court held that no military commissions were necessary in Indiana because federal courts remain open. In Highland v. Russell Car & Snow Plow Co.,88 the Court applied the arbitrary and capricious test to a President’s exercise of emergency powers during World War I to fix the price of coal under the Lever Act. Trump v. Hawaii assumed that the presidential policy must have a plausible relationship to a national security objective, even in the immigration area, where deference is heightened.89 But the Trump Court made its review of the justification for Trump’s discriminatory travel ban meaningless by employing rational basis review.90 The Court held that it will uphold a measure having an unconstitutional motive, when it “can be reasonably understood to result” from an independent justification.91 Chapter 5 teaches us that such a standard represents a dangerous abdication of responsibility for preserving democracy. Autocrats seeking to amass power often create bogus rationales to confuse the inattentive public as they destroy the constitutional order. If judges, who have the resources to check factual assertions and logical fallacies suggesting improper motives, fail to do so because something sounds vaguely plausible, the courts will fail to help preserve democracy and may even hasten its erosion.92 The Court should evaluate claims that an emergency requires a particular emergency measure by applying arbitrary and capricious review for presidential choices about exercise of emergency power, taking the potential of serial abuse of such power as well as the need for presidential judgment under uncertain conditions into account in calibrating the standard. The Court must either repudiate or narrowly apply Trump v. Hawaii in order to preserve judicial capacity to check arbitrary abuse of presidential power. The Court should read Trump v. Hawaii narrowly by holding that it only applies to cases involving foreigners denied entry to the United States for national security purposes.93 It is crucial that it do so, because otherwise it has written the blank check it decided not to issue in Hamdi for Presidents to eviscerate civil liberties under the guise of advancing national security. Rational basis review provides precious little in the way of resources to check presidential invasion of the liberties of American citizens under the guise of advancing national security interests, given the vast scope of powers the President possesses. While I believe that Trump v. Hawaii was wrongly decided, overruling a prior case raises questions about conserving judicial legitimacy. Rather than

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resolve the issue of whether the Court should overrule Trump v. Hawaii here, I will briefly indicate what the case studies add to our understanding of why the case might be wrongly decided. Autocrats destroy democracies by demonizing some sort of outsider in order to justify creation of an illiberal order. In particular, autocrats that President Trump openly admires have done so. Viktor Orbán has made nationalistic opposition to immigration a central propaganda point as he dismantles Hungarian democracy, and so has Kaczyński in Poland. Furthermore, Trump emulated the details of Orbán’s approach to thwarting immigration.94 The Court’s decision to employ a standard of review that lets irrational hatred become the basis for presidential policy in some tension with the policy in relevant parts of the legislation constitutes a serious blow to the democratic order, helping legitimize a proven technique for propelling a drive to autocracy. Although the Court relied on previous precedent to justify its ruling, the opinions of four dissenting Justices suggest that the body of relevant precedents provided room to take these concerns into account. Recognizing that the courts should effectively check bogus emergency power and national security claims in light of the threat they pose to democracy hardly resolves all questions of the scope of judicial review. Nor does it rule out some deference to the executive branch. But it does require that the courts not treat remote possibilities of fatal judicial errors so seriously that it abdicates any judicial role in checking a slide into autocracy in this context. J U ST IC IA BI L I T Y

The courts cannot legitimately check many of the kinds of measures that have disabled courts from acting as a check on the unconstitutional actions of the chief executive and his parliamentary majority in other countries. The Constitution, for better or worse, allows the President of the United States to appoint judges with the advice and consent of the Senate. Appointment by a judicial council or a requirement for a two-­thirds majority in the Senate might better protect judicial independence, but the courts lack authority to cure these defects (if they are defects).95 Similarly, the Constitution gives Congress the authority to determine the size of the Supreme Court, and that size has changed over time. If a future autocrat with a congressional majority decides to expand the Court to facilitate taking control of it, as FDR proposed, the courts cannot do anything legitimately to stop it. Moreover, our Constitution generally permits Congress to limit the jurisdiction of the courts, so the courts generally cannot prevent an autocrat with a majority in Congress from imitating



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Hungary by using jurisdiction stripping to disable the federal courts from checking autocracy. The Supreme Court itself, however, has created the justiciability doctrines that accomplish, to some degree, the broad sidelining of the referees that Hungary (and, for a time, Poland) accomplished by disallowing abstract review. The courts should not bend justiciability doctrines completely out of shape in order to shield assertions of presidential power from scrutiny. While the Congress also should step up and assert its own rights, legal scholars recognize that Madison’s dream of members of Congress acting to protect institutional interests does not comport with modern congressional politics.96 The reality of deep partisan division that tends to lead to autocracy can easily dismantle any remaining inclination in Congress to unite to defend institutional prerogatives. The Supreme Court’s decision in Chadha means that once the President acts, Congress can only check a President through a supermajority, as the President can veto legislation overruling his actions. Having impaired Congressional checks on presidential power by invalidating the one-­house veto (and impairing information-­collection mechanisms through creation of a legislative privilege and failing to allow damage actions to enforce information-­collection statutes), the Court should not use congressional inaction as a reason not to adjudicate cases claiming presidential abuses. If it does, it will leave a President driving toward autocracy, even one without a majority in both houses of Congress, essentially unconstrained. In separation of powers cases, the Court engages in abstract review when it gets to the merits anyway. So, as I have explained in detail elsewhere, a key justification for justiciability doctrines, the desire for a concrete context for adjudication, basically vanishes in the separation of powers context.97 The cases hinge on abstract formalist reasoning that pays almost no attention to the injuries generating standing or any other concrete context. Jessie Choper has argued that because these cases pose such abstract issues, the Court should generally abstain from reviewing separation of powers cases. Having gone down the other path though, the Court should not abstain from adjudicating challenges to presidential power whilst regularly subjecting claims that congressional enactments infringe separation of powers to abstract review. The courts’ justiciability decisions have disabled the courts from examining very questionable accretions of presidential power. Indeed, one might say that they have allowed Presidents to rewrite the Constitution in their favor. Perhaps the most important example involves the war power. Although Chapter 3 suggests that the war power cases often lack a good formal justification

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under the specific justiciability doctrines invoked, one can see why courts prove reluctant to adjudicate war power cases. Decisions about whether to go to war seem like the quintessential political question for the Congress. But challenges to presidential decisions to go to war do not require the courts to make judgments about the political question of whether a war is a good idea. They only require the courts to decide who gets to resolve the political question, the President or the Congress. In cases involving full-­blown offensive war, the answer to this question does not seem difficult—­the Constitution authorizes Congress, and only Congress, to declare war. By failing to affirm this, the courts have permitted a de facto constitutional amendment that hands all future Presidents a potent tool for the subjugation of democracy. As suggested previously, this area may pose the most difficulty in terms of getting orders obeyed. When a President decides to send the troops in, he may feel so strongly about the necessity for this action that an order requiring their withdrawal may create a high risk of disobedience. Although the teaching of the voting rights cases suggests that a court may sometimes enhance its prestige by issuing orders that political authorities ignore, the question of whether restraining a war-­making effort would do so remains very difficult. There are several ways for the courts, however, to chip away at this transfer of power to begin to restore the constitutional balance. Some cases offer opportunities to recognize the illegitimacy of unilateral presidential war-­making without issuing an order to stop a war or even to interfere directly in its conduct. For example, businesses have sought damages compensating them for losses in bombing raids. Regardless of whether the claims brought succeed, these cases offer opportunities to begin to reaffirm the congressional war power and question the legitimacy of unilateral presidential war, building on Youngstown’s legacy.98 The courts may underestimate the danger they subject the Republic to by not supporting the congressional war power. What if we have a President who is in the pay of a foreign power and wants to deploy the armed forces to attack an ally? Can the generals refuse to carry out this order under the Oath Clause when the judiciary has not denied that the President has a war power? What if an autocratic President fears a loss of an only partially rigged election and decides to falsely accuse a hostile power of planning an attack to increase his electoral chances? If Congress is too divided to act, will his advisors restrain him from attacking the hostile power? The courts put the United States at risk in the long term by not assuming the responsibility, at least on some occasions, to say what the law is in this area.



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Congress should check presidential war power as well. But the Framers did not create a system where a President initiates a war, which Congress can only check if it musters a two-­thirds majority in each house, possibly in the midst of a wave of misguided patriotic fervor stoked by an unconstitutional act and the power of media tools that did not exist at the founding. Instead, knowing the tendency of autocrats to use wars to aggrandize their power, they created a system where we stay out of war until the Senate, the House, and the President all agree to end the peace. Courts should contribute something to restoring the democratic balance in this area, especially in light of the Chadha decision’s contribution to the disabling of congressional authority in this area. The Fallon thesis suggests, however, some judicial restraint on interfering with emergency defense when Congress is not in session. It may be appropriate in such cases to use justiciability doctrine to duck. Military actions falling short of war pose a hard case, which I do not wish to address other than to say that judges should consider the possibility of unilateral military action helping an autocratic President in deciding how to deal with such cases. I also recognize that any effort to restore constitutional balance and move away from the courts’ unprincipled approach to war powers will produce new problems, including problems of judicial consistency if the courts reach the merits in some cases but not others. The courts should take democracy loss seriously, even giving it primacy over the possibility of error. Taking it seriously suggests repudiation of the unitary executive theory, limiting the potential to abuse national security and emergency authority, and less militant use of justiciability doctrine when asked to confront presidential usurpation of power. This hardly exhausts the lessons one can draw about how to limit the potential of democratically elected Presidents to seriously erode and perhaps eventually destroy democracy. Nor does it provide complete answers about how to administer and limit the suggested ideas. But it provides a start toward adapting the Constitution to the Founders’ intent and twenty-­first-­century reality.

Reliance on Politics Instead of Law Eric Posner and Adrian Vermeule, however, have argued that politics, rather than law, should restrain the executive branch. The argument about the judiciary’s role in checking democratic erosion has already addressed this objection. Law helps shape politics.99 Judicial decisions perform an important political role that can help check autocracy, especially before autocracy becomes firmly entrenched. It provides

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(or should provide) reasonably objective information about the legitimacy of presidential action.100 This information can inform ruling elites, an audience that includes politicians. This function reflects America’s legalistic culture, part of our Constitutional inheritance, where claims of legality matter to political legitimacy (sometimes to the exclusion of other claims that should be equally important).101 It also means that sound judicial decisions may have some capacity to contribute to the rationality of political debate.102 The tendency of politicians to rely on concerns about the legality of presidential actions in deciding whether to rein in a President suggests that politicians believe that voters will give credence to political claims vindicated by judicial decisions and might otherwise be hopelessly confused.103 Richard Pildes’ claim that perceptions that President Bush acted illegally in adopting some counterterrorism measures played a significant role in the 2006 and 2008 elections would support the politicians’ apparent views.104 The potential value of judicial settlement of legal claims to public and elite perceptions on legitimacy become especially important during times of partisan division (which fosters authoritarianism), when fact-­free partisan claims substitute for consensus or even rational debate.105 One cannot rely on politics, uninformed by law, to constrain presidential misconduct, because the public usually does not pay attention to the President’s specific actions (as opposed to his words). As Aziz Huq explains, “Decades of political science research finds scant evidence that the public is even minimally informed about American politics, let alone about specific national issues.”106 This problem becomes especially acute during a drive to authoritarianism, because authoritarians implement a blizzard of changes at blinding speed, challenging the information-­assimilation capacities even of elites. The notion that absent legal settlement of claims of presidential illegality voters can provide a meaningful check on a multitude of executive actions, some not reported in any public media, ignores much of what we know about politics.107 More broadly, the history of democracy loss suggests that elections alone do not constitute a sufficient check of presidential power.108 Elections also provide no restraint at all in a President’s second term (if he plans to exit the stage rather than just violate the Constitution).109 While some Presidents care about their historical legacy, authoritarians may not care or may seek posthumous fame based on transforming rather than working within the democratic political system our Constitution establishes. And Presidents’ historical legacies may depend on speeches they made or events that happened on their watch, rather than their fidelity to the law.



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An appreciation of the role of judicial decisions in politics helps us see that restraints on legal accountability can dismantle political restraints on the President. So, for example, Brett Kavanaugh has opined that the unitary executive theory requires that the President control the dissemination of special counsel reports on presidential misconduct—­which amounts to a claim that the Constitution authorizes burying executive branch reports of presidential misconduct. But congressional capacity to credibly undertake investigation of presidential conduct wholly on its own may prove limited. The notion that the Constitution prevents the use of legal mechanisms for investigating presidential malfeasance may impede the political process of making informed decisions about new laws to prevent abuse (thereby impairing congressional authority under the Necessary and Proper Clause) or about impeachment. Furthermore, in the wake of United States v. Nixon, the Justice Department has concluded that the Constitution does not permit indictment of a sitting President.110 This inability to indict a sitting President may cripple an impeachment process that might benefit from independent assertions in indictments or judicial resolution of contested claims about illegal conduct when partisan division weakens the polity’s ability to face up to the dangers of impending autocracy. It also can endanger national security, as it implies that even a President committing treason in broad daylight can continue to betray the country if he secures the support of one house of Congress. That is especially dangerous, as modern technology and surveillance techniques may enable a President or his supporters to extensively spy upon and blackmail politicians. The proponents of immunizing the President from the political effects of law enforcement investigation should ask themselves if they are fully convinced that the ratifiers of the Constitution, many of whom were deathly afraid of monarchy, understood that they voted to put the President above the reach of ordinary law enforcement and federal investigation. Even if the answer is yes (and it is hard to see a basis for that), this raises a question of whether a constitutional error in details not mentioned in the Constitution’s text should defeat the practical operation of an explicit constitutional provision—­the Impeachment Clause—­which advances the Framers’ and Ratifiers’ major goal of preserving the Republic from the trepidations of a future despot. The answer to this question should be self-­evident.



C O N C L U S I O N

J u d ge s c a n a n d shou l d contribute to citizens’ efforts to preserve our democracy. They should consider the possibility of a bad-­faith President using the powers of his office to erode and even destroy democracy in making decisions. They should give democratic erosion more weight than error costs even in emergency power cases. They should think of national security as fundamentally concerned with preserving government of the People, by the People, and for the People from twenty-­first-­century despotism—­i.e., autocracy. More specifically, the courts should recognize that the presidency, not the judiciary, poses the greatest threat to our democracy. The Supreme Court should recognize that its adoption of the unitary executive theory may help generate an autocracy sooner or later. The Court should accordingly adhere to its prior decisions rejecting the theory and interpret its Seila Law decision narrowly or overrule it. It must restore presidential accountability and subject presidential uses of emergency powers to an arbitrary and capricious test, lest an autocratic President abuse them. And it should not duck judicial review of presidential assertions of power as aggressively as it has in the recent past. All of this comports with original intent, has antecedents in the Supreme Court’s jurisprudence, and helps the judges fulfill their duty to preserve the rule of law from its most potent adversary. The specter of dictatorship haunting the judicial and popular imagination, however, proves at once too fearsome to contemplate and too easy to ignore. If we imagine a sudden coup destroying a democracy in one blow and a Stalin or Hitler 174

Conclusion 175 controlling every aspect of our lives, we may simultaneously recoil in horror and dismiss losing democracy as an impossibility in America. But the recent histories of Hungary, Turkey, and Poland (and, for that matter, a fuller understanding of Nazi Germany) reveal a real danger to America that has already presented itself, the gradual erosion of democracy under pressure from an autocratic President enjoying the backing of the Senate. This erosion can go very far, destroying checks and balances and the rule of law. It can leave the forms of democracy intact, yet destroy its vital core. Elections may continue, but opponents of the regime, even with majority support, may prove unable to obtain power because the game has been, at least partially, rigged. We may not jail dissidents, as Turkey has, but we may see subtle pressures destroying almost all potent opposition media and driving many independent journalists out of the profession or into safe avenues of reporting. We may see a DOJ that does not prosecute a thoroughly corrupt regime’s supporters’ crimes, but investigates or even indicts regime opponents who have done nothing wrong or who have committed offenses so trivial that no honest independent prosecutor would have brought charges. We have seen demonization of outsiders creating hatred to fuel support for an irrational regime. And we have seen a President and some members of his party characterizing regime opponents as unpatriotic and dangerous, destroying any potential for the compromises and unity necessary for democratic governance. In short, we can lose constitutional democracy, and we have begun to do so. The courts cannot stop all of this on their own. But judges can contribute something to democracy preservation. If they aid the destruction or stand aside as democracy falls apart, the judges will have failed utterly and will earn the contempt of citizens who value freedom, political agency, and the glorious American tradition of constitutional democracy. Courts have something powerful and important to offer political processes that preserve or destroy democracies. They can investigate facts, reject arbitrary executive power, and make rationale independent judgments. If instead they construct elaborate excuses for failing to check presidential power, they may contribute to an irretrievable loss.

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NOTES

Preface

1. See Seila Law LLC v. Consumer Financial Protection Bureau, 140 S. Ct. 2183 (2020). 2. See, e.g., Everdell, The End of Kings, 150–­70. 3. Runciman, The Confidence Trap, 26. 4. Scheppele, “Autocratic Legalism,” 546–­47.

Introduction

1. See, e.g., Huq and Ginsburg, “How to Lose a Constitutional Democracy,” 80. 2. Id. at 106. 3. Klarman, “Foreword,” 178–­211. 4. Huq and Ginsburg, “How to Lose a Constitutional Democracy,” 83. 5. Kapstein and Converse, “Why Democracies Fail,” 58 (finding a correlation between the length of time a democracy has existed and the likelihood of it continuing). 6. Huq and Ginsburg, “How to Lose a Constitutional Democracy,” 92. 7. Id. at 92. 8. Id. at 96–­97. 9. See generally id. at 84. 10. Mansfield and Sisson, The Evolution of Political Knowledge. 11. Shane, Madison’s Nightmare; Driesen, The Economic Dynamics of Law; Accord NLRB v. Noel Canning, 134 S. Ct. 2550, 2605–­06 (2014) (noting that requiring Senate resistance as a body to defeat a historical gloss based on practice allows the President to acquire “power by adverse possession” and systematically favors the President over Congress). 12. Huq and Ginsburg, “How to Lose a Constitutional Democracy,” 84. 13. Calabresi and Rhodes, “The Structural Constitution: Unitary Executive, Plural Judiciary,” 1165–­66. 14. Cf. Powell, Comment, “The Supreme Court as Interpreter of Executive Foreign Affairs Power,” 172 (claiming that the political question doctrine has enhanced the President’s foreign affairs power). 15. See Seila Law LLC v. Consumer Financial Protection Bureau, 140 S. Ct. 2183 (2020).

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Chapter 1

1. Teles, “Transformative Bureaucracy, Reagan’s Lawyers and the Dynamics of Political Investment.” 2. See, e.g., Prakash, The Living Presidency. 3. Accord Bailey, The Idea of Presidential Representation, 174, 182–­83; Kitrosser, Reclaiming Accountability, 74–­83, 147–­57; Kitrosser, “Interpretive Modesty. 4. Accord Ely, Democracy and Distrust; cf. Barnett and Bernick, “The Letter and the Spirit.” 5. Nelson, The Royalist Revolution. 6. Calabresi and Prakash, “The President’s Power to Execute the Laws,” 576. 7. Cf. id. at 612 (downplaying Hamilton’s statements on presidential power because they were designed to influence adoption). 8. Balkin, Living Originalism, 14. 9. Powell, “The Original Understanding of Original Intent,” 910. 10. Klarman, The Framers’ Coup, 596, 599. 11. Colby and Smith, “Living Originalism.” 12. See, e.g., Jesner v. Arab Bank, 138 S. Ct. 1386 (2018) (noting that the Constitution supplied congressional power missing from the Articles of Confederation to punish violations of international law). 13. Rakove, Original Meanings, 268. 14. See Phelps, George Washington and American Constitutionalism, 81, 141;Wood, The American Revolution, 165. 15. Pildes, “Law and the President,” 1417 (“In the wake of the American Revolution, the Constitution was . . . crafted in a culture deeply fearful of monarchial power”). 16. “Federalist No. 70” (James Madison). 17. “Federalist No. 68” (Alexander Hamilton). 18. Chernow, Alexander Hamilton. 19. Farrand, Records of the Federal Convention of 1787, 335–­36, 342–­43; Driesen, “Toward a Duty-­Based Theory of Executive Power,” 97–­99. 20. See Driesen, “Duty-­Based Theory,” 89. 21. Klarman, Framers’ Coup, 213–­17. 22. “Federalist No. 76” (Hamilton); National Labor Relations Board v. Noel Canning, 573 U.S.513, 523 (2014) (citing Alexander Hamilton’s statements that Senate approval provides “a check on the spirit of favoritism in the President”). 23. See Freytag v. Commissioner, 501 U.S. 868, 883 (1991) (quoting G. Wood, The Creation of the American Republic, 1776–­1787, p. 79 (1969)). 24. Tench Coxe, “An American Citizen I,” Indep. Gazetteer, September 26, 1787, reprinted in Jensen, Kiminski, and Gaspare, The Documentary History of the Ratification of the Constitution, 2: 138, 140, 141. 25. “Federalist No. 77” (Hamilton) (emphasis added). 26. Id. 27. Jensen, Kiminski, and Gaspare, Documentary History, 22: 1953. 28. Id.; Maier, Ratification: The People Debate the Constitution, 1787–­1788.



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29. U.S. Constitution, art. I, sec. 8. 30. Driesen, “Duty-­Based Theory,” 99. 31. See id. at 97; Corwin, Corwin on the Constitution, 354; Corwin, The President, Office and Powers, 1787–­1957, 7. 32. Calabresi and Prakash, “The President’s Power to Execute the Laws.” 33. Furthermore, figuring out what functions are legislative, executive, or judicial is not straightforward. See, e.g., Bank Markazi v. Peterson, 136 S. Ct. 1310 (2016). 34. Schlesinger, The Imperial Presidency. 35. Greene, Permanent States of Emergency and the Rule of Law, 7, 15. 36. Klarman, Framers’ Coup, 225–­26. 37. Id. 38. “Federalist No. 8” (Hamilton). 39. Id. 40. Banks and Dycus, Soldiers on the Home Front. 41. See 15 Papers of Jefferson 397 (Boyd ed., Princeton 1958); Federalist No. 69, at 465 (Cooke ed. 1961) (Hamilton). 42. See Barron and Lederman, “The Commander in Chief: Framing,” 803 (suggesting that those arguing that the original understanding favors preclusive presidential war powers are “spinning tales”). 43. Story, Commentaries on the Constitution, §§ 1538–­1539. 44. Rakove, Original Meanings; Jensen, Kiminski, and Gaspare, Documentary History, 2: 508. 45. Klarman, Framers’ Coup, 370. 46. Id. at 368–­69 (discussing the Federalists’ reliance on the congressional war power and the Senate role in appointment to refute charges of having created a monarchy). 47. Prakash and Ramsey, “The Executive Power Over Foreign Affairs”; Bradley and Flaherty, “Executive Power Essentialism and Foreign Affairs,” 551. 48. Bradley and Flaherty, “Executive Power Essentialism,” 560–­625; Mortenson, “Article II Vests Executive Power, Not the Royal Prerogative.” 49. Harrison, “Executive Power.” 50. See Casper, “An Essay in Separation of Powers,” 233–­42; Corwin, “Tenure of Office and Removal Power Under the Constitution,” 361–­63; cf. Calabresi and Yoo, The Unitary Executive; Flaherty, “Relearning Founding Lessons”; Nourse and Figura, “Toward a Representational Theory of the Executive.” 51. See Lessig and Sunstein, “The President and the Administration,” 27–­30. 52. See also Raines v. Byrd, 521 U.S. 811, 826–­28 (1997) (noting that Congress required Senate approval for removal of cabinet officers from 1867 until 1887, but that the Supreme Court rejected the requirement of Senate approval in Myers v. United States, 272 U.S. 52 (1926)). 53. Bailey, Presidential Representation, 47–­48. 54. Prakash, “New Light on the Decision of 1789.” 55. Casper, “An Essay in Separation of Powers;” Corwin, “Tenure of Office and Removal Power Under the Constitution;” Kitrosser, Accountability, 155–­57.

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56. See Lessig and Sunstein, “President and Administration,” 26. 57. Balkin, “Living Originalism,” 115–­16. 58. Kitrosser, “Interpretive Modesty,” 462. 59. Toobin, “Clarence Thomas Has His Own Constitution.” 60. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 415 (1819) (emphasis in original).

Chapter 2

1. Everdell, The End of Kings, 208. 2. Mashaw, “Administration and ‘The Democracy,’” 1592. 3. Much of the discussion of the early Republic’s practices below comes from Mashaw, “Recovering American Administrative Law.” 4. Shugerman, “The Creation of the Department of Justice,” 129. 5. Jurney v. MacCracken, 294 U.S. 125, 147–­48 (1935). 6. Shugerman, “The Creation of the Department of Justice,” 167. 710. F. Cas. 355 (C.C.D.S.C. 1808 (No. 5420)). 8. Mashaw, “Reluctant Nationalists,” 1678–­79. 9. See id. at 1695. 10. Skowronek, The Politics Presidents Make, 66–­67. The Adams administration removed nineteen officials from office, but almost all of these were for cause or for disagreements over foreign policy. Fish, The Civil Service and the Patronage, 20–­21. 11. Skowronek, Politics Presidents Make, 72. 12. Eriksson, “The Federal Civil Service Administration Under President Jackson.” 13. Mashaw, “Administration and ‘The Democracy,’” 1615. 14. Fish, The Civil Service and the Patronage, 155. 15. Everdell, The End of Kings, 207–­08. 16. See id. at 208. 17. Howe, What Hath God Wrought, 387. 18. See id. 19. Id. at 387–­88. 20. See Everdell, The End of Kings, 209; Mashaw, “Administration and ‘The Democracy,’” 1590. 21. Howe, What Hath God Wrought, 390. 22. Mashaw, “Administration and ‘The Democracy,’” 1667. 23. See Howe, What Hath God Wrought, 390. 24. See id. at 574–­76. 25. Everdell, The End of Kings, 209–­11. 26. See id. at 212. 27. Wineapple, The Impeachers, 330–­332, 341. 28. Barron and Lederman, “The Commander in Chief: History,” 972. 29. See id. at 951–­72. 30. See id. at 974. 31. See id. at 976.



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32. See id. 336. U.S. (2 Cranch) 170 (1804). 34. See Barron and Lederman, “Commander in Chief: History,” 981. 35. See id. at 982–­86. 36. See Fleming v. Page, 50 U.S. (9 How.) 603 (1850). 37. See Barron and Lederrman, “Commander in Chief: History,” 997–­1018. 38. Prize Cases, 67 U.S. (2 Black) 635, 668–­70 (1862). 39. Id. at 670. 40. Id. at 675–­82. 41. Id. at 682. 42. See Barron and Lederman, “Commander in Chief: History,” 1022–­25. 43. Ex Parte Milligan, 71 U.S. 2, 120 (1866). 44. Id. at 119. 45. Id. at 125. 46. Id. at 127 (emphasis in original). 47. Id. 48. Id. at 136–­42 (Chase, C.J.) (concurring). 49. Ex Parte Quirin, 317 U.S. 1 (1942). 50. Mashaw, “Administration and ‘The Democracy,’” 1628–­29. 51. Panama Ref. Co. v. Ryan, 293 U.S. 388, 431–­33 (1935). 52. Driesen, “Judicial Review of Executive Orders’ Rationality,” 1030–­31. 53. See Berger, “Administrative Arbitrariness: A Synthesis,” 997; Davis, “Administrative Arbitrariness: A Postscript,” 832; cf. Bruff, “Judicial Review and the President’s Statutory Powers,” 1 (supporting reasonableness review, but not the application of all APA procedures, to executive orders). 54. Kovacs, “The Role of the Executive in Rulemaking and the Rise of the Unitary Executive,” 520, 525, 528. 55. 272 U.S. 52 (1926). 56. Id. at 107. 57. See id. at 293, 294 n. 86 (Brandeis, J., dissenting). 58. Casper, “An Essay in Separation of Powers,” 233–­42; Corwin, “Tenure of Office and Removal Power Under the Constitution,” 361–­63. 59. 116 U.S. 483, 485 (1886); Myers, 272 U.S. at 173–­74 (stating that Congress can remove civil service appointments “entirely . . . from politics” by vesting the appointment authority in heads of departments). 60. Myers, 272 U.S. at 292–­93. 61. See id. at 293–­95. 62. Id. at 179 (quoting Story, Commentaries on the Constitution, § 1539). 63. Id. 64. See Humphrey’s Executor v. United States, 295 U.S. 602, 618–­19, 626 (1935). 65. Id. at 631. 66. Id. at 631–­32. The Court, however, recently reaffirmed Myers’ erroneous interpretation of the “Decision of 1789.” Free Enter. Fund v. Pub. Accounting Oversight Bd.,

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561 U.S. 477, 492 (2010); Seila Law LLC v. Consumer Financial Protection Bureau, 140 S. Ct. 2183, 2197–­2198 (2020). 67. Wiener v. United States, 357 U.S. 349 (1958). 68. 487 U.S. 654, 685–­93 (1988). 69. In Re Sealed Cases, 838 F.2d 476, 478 (D.C. Cir. 1988), reversed sub nom. Morrison, 487 U.S. 654. 70. See Morrison, 487 U.S. at 699–­700 (Scalia, J., dissenting). 71. Id. at 691, 693. 72. Seila Law LLC v. Consumer Financial Protection Bureau, 140 S. Ct. 2183. 73. Driesen, “Toward a Duty-­Based Theory of Executive Power,” 72. 74. See Barron and Lederman, “Commander in Chief: History,” 1032–­45. 75. Highland v. Russell Car & Snow Plow Co., 279 U.S. 253 (1929). 76. Sterling v. Constantin, 287 U.S. 378 (1932); Constantin v. Smith, 57 F.2d 227, 229 (E.D. Texas 1932). 77. Sterling, 287 U.S. 378; Constantin, 57 F.2d at 229. 78. See Barron and Lederman, “Commander in Chief: History,” 1046–­51. 79. 299 U.S. 304 (1936). 80. See Zivotofsky v. Kerry, 135 S. Ct. 2076, 2089–­90 (2015) (recognizing that the broad statements of plenary presidential authority in Curtiss-­Wright were dicta since the case involved a nondelegation doctrine challenge to delegated authority). 81. Goldsmith, “Zivotofsky II as Precedent in the Executive Branch,” 128 (characterizing the Curtiss-­Wright Court’s “extraconstitutional theory” of the foreign relations power as “clearly wrong”). 82. Curtiss-­Wright, 299 U.S. at 319–­20. 83. Cf. Goldsmith, “Zivotofsky II,” 128 (noting that scholars have “excoriated Curtiss-­Wright” because “its dicta about presidential exclusivity threaten to swallow up Congress’s Article I foreign relations powers”). 84. See id. (explaining that the courts rely on Curtiss-­Wright’s dicta “to support a generous reading of the President’s foreign relations power”). 85. Office of United States Chief of Counsel for Prosecution of Axis Criminality, Nazi Conspiracy and Aggression, 126–­28. 86. Rossiter, Constitutional Dictatorship, 70–­71. 87. Chief of Counsel for Prosecution of Axis Criminality, Nazi Conspiracy and Aggression, 200. 88. Id. at 224–­226. 89. Id. at 226. 90. Id. at 593. 91. Id. at 641. 92. Id. at 646. 93. Id. at 649–­50. 94. Id. at 650–­51. 95. Id. at 651–­52. 96. Id. at 651.



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97. Id. at 653. 98. Korematsu v. United States, 323 U.S. 214, 246 (1944) (Jackson, J., dissenting). 99. Id. at 655. 100. See Barron and Lederman, “Commander in Chief: History,” 1056–­99. 101. See id. at 1060. 102. Lichtblau, Bush’s Law: The Remaking of American Justice. 103. Hamdan v. Rumsfeld, 548 U.S. 557 (2006).

Chapter 3

1. 369 U.S. 186, 217 (1962). 2. See generally Fletcher, “The Structure of Standing,” 221. 3. Prakash, “Zivotofsky and the Separation of Powers,” 38. 4. See Clapper v. Amnesty Int’l USA, 568 U.S. 398, 410–­14 (2013). 5. Bandes, “The Idea of a Case.” 6. Nichol, “Causation as a Standing Requirement”; Clapper, 568 U.S. 398. 7. Henkin, “Is There a Political Question Doctrine?” 8444. U.S. 996 (1979). 9. Id. at 1002. 10. See id. at 1006–­7. 11. One could also view the case as one of resolving two competing textual inferences, but that would remain well within the bounds of normal constitutional adjudication. 12. Rucho v. Common Cause, 139 S. Ct. 2484 (2019). 13. Nixon v. United States, 506 U.S. 224, 229 (1993). 14. Gilligan v. Morgan, 413 U.S. 1 (1973). 15. See id. at 1004. 16. Driesen, “Standing for Nothing.” 17. See Doe v. Bush, 323 F.3d 133, 137–­38 (1st Cir. 2003). 18. Campbell v. Clinton, 203 F.3d 19, 22 (D.C. Cir. 2000). 19. Id. at 154. 20. See, e.g., Wu Tien Li-­Shou v. United States, 777 F.3d 175 (4th Cir. 2015). 21. See, e.g., Al Shimari v. CACI Premier Tech., Inc., 840 F.3d 147 (4th Cir. 2016) (challenging contractor torture of prisoners at Abu Graib and finding no political question for actions taken independently of government control). 22. El-­Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836, 842–­44 (D.C. Cir. 2010) (en banc) (emphasis added). 23. See id. at 856. 24. Id. at 857. 25. Id. 26. Vladeck, “War and Justiciability,” 52. 27. Clapper, 568 U.S. 398. 28. Id. at 409. 29. Raines v. Byrd, 521 U.S. 811, 811–­29 (1997).

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30. See id. at 829. 31. Virginia House of Delegates v. Bethune-­Hill, 139 S. Ct. 1945 (2019). 32. Citizens for Responsibility and Ethics in Washington v. Trump, 276 F. Supp. 3d 174, 193–­95 (S.D.N.Y. 2017), reversed, 939 F.3d 131 (2nd Cir. 2019). 33. U.S. House of Representatives v. Mnuchin, 379 F. Supp. 3d 8 (D.D.C. 2019), vacated 2020 WL 1228477 (D.C. Cir.) (en banc), remanded 969 F.3d 353 (D.C. Cir. 2020) (en banc). 34. See, e.g., Trump v. Sierra Club, 140 S. Ct. 1 (2019) (mem.). 35. See Blumenthal v. Trump, 335 F. Supp. 3d 45 (D.D.C. 2018) (recognizing congressmen’s standing, because President’s failure to submit information on his receipt of benefits from foreign governments deprives members of Congress of their rights to vote on whether to approve them); In re Trump, 928 F.3d 360 (4th Cir. 2019) (denying standing on narrower grounds). 36. Blumenthal, 335 F. Supp. 3d at 68. 37. Citizens for Responsibility and Ethics in Washington v. Trump, 939 F.3d 131 (2nd Cir. 2019). 38. See United States v. Windsor, 570 U.S. 744, 786–­87 (2013). 39. See id. at 787. 40. Id. at 786. 41. Scalia, “The Doctrine of Standing,” 881–­99. 42. See Federal Election Comm’n v. Akins, 524 U.S. 11, 36 (1998) (Scalia, J., dissenting). 43. See, e.g., Steel Co.. v. Citizens for a Better Env’t, 523 U.S. 83, 102 n. 4 (1998). 44. See Friends of the Earth, Inc. v. Laidlaw Environmental Services, 528 U.S. 167, 210 (2000) (Scalia, J., dissenting). 45. See Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 778 n. 8 (2000). 46. See Steel Co., 523 U.S. 83; Lujan v. Defenders of Wildlife, 504 U.S. 555, 561–­62 (1992); see also Steel Co., 523 U.S. at 124–­31 (Stevens, J., concurring). 47. Vladeck, “Essay: The Solicitor General and the Shadow Docket.” 48. Trump, 140 S. Ct. 1. 49. Trump v. Sierra Club, 140 S. Ct. 2620 (mem.); Sierra Club v. Trump, 963 F.3d 874 (9th Cir. 2020); California v. Trump, 963 F.3d 926 (9th Cir. 2020); California v. Trump, 379 F. Supp. 3d 928 (N.D. Cal. 2019); Sierra Club v. Trump, 379 F. Supp. 3d 883 (N.D. Cal. 2019). 50. Barr v. East Bay Sanctuary Covenant, 140 S. Ct. 3 (2019) (mem.). 51. East Bay Sanctuary Covenant v. Barr, 385 F. Supp. 3d 922 (N.D. Cal. 2019); cf. East Bay Sanctuary Covenant v. Barr, 964 F.3d 832 (9th Cir. 2020). 52. See Goldwater v. Carter, 444 U.S. 996, 1001 (1979) (Powell, J., concurring) (finding the suggestion that Goldwater presents a political question “incompatible with [the] Court’s willingness to . . . decide” interbranch conflicts); United States v. Munoz-­Flores, 495 U.S. 385, 392–­93 (1990). 53. INS v. Chadha, 462 U.S. 919 (1983).



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54. See Munoz-­Flores, 495 U.S. at 393. 55. Chadha, 462 U.S. at 928–­31. 56. Id. at 931 n. 6. 57. 566 U.S. 189 (2012). 58. Id. at 196–­97. 59. 140 S. Ct. 2183 (2020). 60. 478 U.S. 714 (1986). 61. Id. at 726–­27. 62. See id. at 728–­29, 765–­67, 773, 784. 63. 424 U.S. 1 (1976). 64. Metropolitan Washington Airports Authority v. Citizens for the Abatement of Aircraft Noise, 501 U.S. 252, 265 (1991). 65. Free Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. 477 (2010).

Chapter 4

1. See Koh, “Why the President (Almost) Always Wins in Foreign Affairs.” 2. See, e.g., Henkin, Foreign Affairs and the United States Constitution; Koh, The National Security Constitution, 72 (citing judicial deference to executive branch initiatives as a factor leading to a vision of “inherent” presidential authority over all of foreign affairs); Rudenstine, The Age of Deference. 3. Sitaraman and Wuerth, “The Normalization of Foreign Relations Law,” 1902–­5 (claiming that the counterterrorism cases and the Roberts Court have increasingly normalized foreign relations law including with respect to “executive dominance”). Sitaraman and Wuerth situate this recent normalization in a broader trend going back to the 1990s, but do not claim that judicial decisions changed much before the counterterrorism cases. See id. at 1902, 1921. 4. Trump v. Hawaii, 138 S. Ct. 2392 (2018). 5. See Prakash, “Zivotofsky and the Separation of Powers,” 33 (claiming that the Supreme Court has “an enduring inclination” to understand presidential power in much broader terms” than Article II, Section 2 implies). 6. See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819); cf. Goldsmith and Manning, “The President’s Completion Power,” 2305–­6 (noting that Justice Marshall’s argument that a grant of substantive power “necessarily” implies some incidental power to “carry that power into effect” applies to the President); Van Alstyne, “The Role of Congress in Determining Incidental Powers,” 809–­17 (arguing that the United States v. Nixon Court erred in assuming that this reasoning applies to the executive branch). 7. U.S. Constitution, art. I. 8. See McCulloch, 17 U.S. at 407 (stating that a “bold and daring usurpation might be resisted” and that where “the great principles of liberty are not concerned” practice should influence the decision). 9. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 582 (1952). 10. Id. at 587.

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11. See id. at 587–­88. 12. See id. at 635. 13. See id. 14. See id. at 637. 15. Id. 16. See id. 17. Id. 18. Id. 19. See id. at 610–­11. 20. See id. 21. See Sitaraman and Wuerth, “The Normalization,” 1952 (noting that “Youngstown is not limited to foreign affairs cases”). 22. See generally Bradley and Goldsmith, “Presidential Control Over International Law” (explaining that the President’s “international lawmaking” has “significant” domestic consequences). 23. See Schwartz, “A Question Perpetually Arising,” 622 (referring to amalgamated implied power as “synergy”). 24. See McCulloch, 17 U.S. at 407–­8 (mentioning the vast array of congressional powers and then suggesting that a bank might be useful in raising revenue and then deploying it to support armies); Kaczorowski, “Inherent National Sovereignty Constitutionalism,” 729 (characterizing McCulloch as inferring implied power from an amalgamation of enumerated authority). 25. See McCulloch, 17 U.S. at 417–­18 (suggesting that Congress must have all powers essential to a sovereign state); Lobel, “Emergency Power and the Decline of Liberalism,” 1409–­12; cf. Youngstown, 343 U.S. at 646 (Jackson, J., concurring) (rejecting the notion that “necessity knows no law”); Schwartz, “A Question,” 622 (discussing the idea of implying a power because it constitutes an incident of national sovereignty). 26. See Schwartz, “A Question,” 627 (noting that offering broad implied power to the President but not Congress is inconsistent with the Necessary and Proper Clause). 27. See Adler, “The Steel Seizure Case and Inherent Presidential Power,” 197 (noting that Justice Vinson’s Youngstown dissent advocated a “second necessary and proper clause” applicable to presidential power, but that the majority rejected it). 28. See McCulloch, 17 U.S. at 421; Youngstown, 343 U.S. at 662 (Clark, J., concurring) (reading the Constitution as granting the “President extensive authority in times of grave and imperative national emergency”). 29. Youngstown, 343 U.S. at 629 (Douglas, J., concurring). 30. Cf. Huq and Ginsberg, “How to Lose a Constitutional Democracy,” 142 (noting that “modern-­day originalists” have ironically inverted the textual preference for “a robustly empowered” Congress). 31. See Goldsmith, “Zivotofsky II as Precedent in the Executive Branch,” 125 (noting that scholars have criticized the Jackson framework based on the ease with which judges can manipulate it).



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32. See Medellin v. Texas, 552 U.S. 491, 527 (2008) (reading the Senate’s silence on the President’s authority as implicit rejection in light of the “non-­self-­executing character of the relevant treaties”). 33. See Dames & Moore v. Regan, 453 U.S. 654, 662–­68, 675 (1981). 34. See, e.g., Koh, “Why the President (Almost) Always Wins,” 1310 (suggesting that that the nullification of claims issue belonged in the twilight zone because Congress passed IEEPA to limit claims settlement authority); Note, “The International Emergency Economic Powers Act,” 1108–­9 (suggesting that IEEPA sought to limit seizure of foreign assets during peacetime); cf. Regan v. Wald, 468 U.S. 222, 248 (1984) (Blackmun, J., dissenting) (pointing out that IEEPA aimed to limit, not confirm, presidential foreign affairs authority assumed under prior legislation). 35. See Medellin, 552 U.S. at 564 (Breyer, J., dissenting) (placing the President’s enforcement of the ICJ judgment in the “middle range” where Congress has neither authorized nor forbidden the President’s action). 36. 135 S. Ct. 2076 (2015). 37. Id. at 2084. 38. Compare Youngstown, 343 U.S. at 635–­40 (elaborating and applying the framework for considering congressional intent) with id. at 645–­55 (elaborating a constitutional case against unrestricted presidential power). 39. Accord Van Alstyne, “The Role of Congress,” 805 (characterizing claims of implied powers as raising quintessential questions of political judgment) (emphasis in original). 40. See Prakash, “Symposium: The Role of the President in the Twenty-­First Century,” 338 (suggesting that many Supreme Court Justices’ backgrounds as executive branch lawyers may make them too comfortable with strong claims of presidential power). 41. See generally, e.g., Koh, The National Security Constitution (claiming that on “every occasion” the Burger Court approved self-­serving executive branch construction of statutes in the national security area); Sitaraman and Wuerth, “The Normalization,” 1952 (noting that the “Court has sometimes read foreign congressional enactments broadly to favor the executive branch in foreign relations cases”). 42. See, e.g., Regan, 468 U.S. at 228–­29 (arguably ignoring plain statutory language to uphold travel restrictions to Cuba); Weinberger v. Catholic Action of Hawaii/Peace Education Project, 454 U.S. 139, 144–­45 (1981) (ignoring statutory language requiring the Court to determine de novo whether the government had properly classified information). This tendency does not necessarily prevail in recent cases that do not challenge a presidential legislative decision directly. See, e.g., Rasul v. Bush, 542 U.S. 466, 473 (2004) (reading courts’ authority to hear habeas petitions “within their jurisdictions” to apply to inmates at Guantanamo); Republic of Argentina v. NML Cap., 573 U.S. 134 (2014) (declining to accept an executive branch plea to limit the scope of private party discovery under a Federal Rule of Civil Procedure through a broad construction of the Foreign Sovereign Immunities Act). 43. 478 U.S. 221 (1986) (5-­4 decision).

188

Notes to Chapter 4

44. See Driesen, “The Congressional Role in International Environmental Law,” 310 (stating that all commentators agree that the statutory text and legislative history cannot explain the Japan Whaling Court’s deference to the executive branch). 45. See Hamdi v. Rumsfeld, 542 U.S. 507, 517 (2004). 46. 548 U.S. 557 (2006). 47. Id. at 593, n. 23. 48. See Franklin v. Massachusetts, 505 U.S. 788, 796 (1992) (holding that the President’s actions are not reviewable under the APA); cf. Driesen, “Judicial Review of Executive Orders’ Rationality,” 1013 (arguing that the Constitution still generally requires arbitrary and capricious review of presidential action); Siegel, “Suing the President,” 1612 (explaining that “nonstatutory review” of presidential action remains available). 49. Bradley and Goldsmith, “Presidential Control,” 1272 (discussing the APA’s foreign affairs exemption); Kovacs, “A History of the Military Authority Exception in the Administrative Procedure Act,” 673. 50. See, e.g., Berger, “Administrative Arbitrariness: A Synthesis,” 997; Davis, “Administrative Arbitrariness: A Postscript,” 832; cf. Bruff, “Judicial Review and the President’s Statutory Powers,” 2 (finding the APA “not clearly applicable to the President”). 51. Barr, “Memorandum to Deputy Attorney General Rod Rosenstein and Assistant Attorney General Steve Engel, Re: Mueller’s Obstruction Theory.” 52. Mueller, “Report on the Investigation into Russian Interference in the 2016 Presidential Election. 53. Id. at 3. 54. See McCulloch, 17 U.S. at 401. 55. 570 U.S. 529, 556 (2013) (finding that the forty-­year-­old age of the formula governing which states must undergo preclearance does not “insulate it” from judicial review). 56. 462 U.S. 919 (1983); see also Bowsher v. Synar, 478 U.S. 714, 731 (1986) (using the history of the Comptroller General as an organ of Congress as an argument against assigning it budget-­cutting functions). 57. See United States v. Comstock, 560 U.S. 126, 137–­41 (2010) (providing a detailed review of such statutes). 58. Id. at 137 (emphasis added). 59. Id. 60. See American Insurance Association v. Garamendi, 539 U.S. 396, 415 (2003); Dames & Moore v. Regan, 453 U.S. at 654, 679, 682–­83; see also Nixon v. Administrator of General Services, 433 U.S. 425, 429, 441 (1977) (upholding a statute governing presidential records partly on the basis of executive branch acquiescence). 61. Zivotofsky v. Kerry, 576 U.S. 1, 23 (1995) (acknowledging that the history of recognition is “not all on one side”). The Court and the dissent agreed that Congress had sometimes made recognition decisions and that some Presidents have expressed doubt about the exclusivity of the President’s recognition authority. The Court also gave substantial weight to checkered history in finding that the Recess Appointments Clause grants more substantial authority to evade Senate confirmation than the most



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natural reading of the clause would suggest. See NLRB v. Noel Canning, 573 U.S. 513, 575–­95 (2014) (Scalia, J., dissenting) (showing why a restrictive reading is more natural and discussing a history of executive practice that began relatively late in the nation’s history and encountered congressional resistance once it became common). 62. See United States v. Nixon, 418 U.S. 683, 705–­6 (1974) (rejecting the Special Prosecutors’ argument against executive privilege, relying on McCulloch’s rule accepting implied power “reasonably appropriate and relevant to the exercise of a granted power”); Van Alstyne, “The Role of Congress,” 794 (characterizing executive privilege as “the most obvious current illustration of implied power”). 63. See Nixon, 418 U.S. at 708. 64. Nixon v. Fitzgerald, 457 U.S. 731, 749–­53 (1981); see Harlow v. Fitzgerald, 457 U.S. 800 (1981) (establishing qualified immunity for White House aides). 65. Printz v. United States, 521 U.S. 898, 923 (1997). 66. 561 U.S. 477, 484–­86 (2010) (describing the statutory removal provisions and declaring them unconstitutional). 67. See, e.g., Chadha, 462 U.S. at 983–­89 (White, J., dissenting) (arguing in vain that the Necessary and Proper Clause justifies the one-­house veto in light of the Court’s acceptance of delegation of quasi-­legislative authority to executive branch agencies). 68. See Bowsher, 478 U.S. at 761–­64 (White, J., dissenting) (arguing that delegating authority to an officer independent of the President was “necessary and proper” and an “eminently reasonable” way to achieve “automatic budget-­cutting measures”) (internal quotation omitted). 69. See South Carolina v. Katzenbach, 383 U.S. 301, 326–­27 (1966) (explaining that McCulloch’s means/ends reasoning applies to the Fifteenth Amendment); Katzenbach v. Morgan, 384 U.S. 641, 651 (1966) (explaining that McCulloch’s means/ ends reasoning applies to the Fourteenth Amendment); Ex Parte Virginia, 100 U.S., 339, 345–­46 (1879) (explaining that the congressional power to enforce the Fourteenth Amendment allows for legislation “adapted to carry out the objects the amendments have in view”); see also Magliocca, “A New Approach to Congressional Power,” 136 (describing the provisions authorizing congressional enforcement of the three Reconstruction Amendments as “intended to place McCulloch’s view of the Necessary and Proper Clause into the constitutional text.”); cf. Civil Rights Cases, 109 U.S. 3, 13–­14 (1883) (interpreting the congressional enforcement power to apply only to state law not private conduct); United States v. Harris, 106 U.S. 629, 640 (1883) (same). 70. See City of Boerne v. Flores, 521 U.S. 507, 520 (1997). 71. See id. at 530–­2 (questioning congressional judgment that the problem of burdens on religion was serious enough to justify the measure it chose); Tennessee v. Lane, 541 U.S. 509, 557–­58 (2004) (Scalia, J., dissenting) (characterizing the congruence and proportionality test as a “standing invitation to judicial arbitrariness and policy-­driven decision making”); cf. McConnell, “Institutions and Interpretation,” 163 (characterizing the majority’s view of judicial supremacy as “startlingly strong”). 72. 570 U.S. 529, 568 (2013).

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Notes to Chapter 4

73. See National Federation of Independent Business v. Sebelius, 567 U.S. 519, 558–­61, 650–­55 (2012) (dicta). The majority, however, upheld the individual mandate as a valid tax. See id. at 561–­74, 589. 74. See, e.g., United States v. Kebodeaux, 570 U.S. 387, 389 (2013) (upholding federal regulation of federal sex offenders). 75. Comstock, 560 U.S. at 133–­34 (citing McCulloch, 17 U.S. at 413, 418). 76. See Sabri v. United States, 541 U.S. 600, 602 (2004). 77. See id. at 605 (citing McCulloch and finding that Congress has “authority under Necessary and Proper Clause to see to it that . . . taxpayer dollars are not frittered away in graft”); see also Jinks v. Richland County, 538 U.S. 456 (2003) (holding that Congress may enact a statute tolling state statutes of limitations for cases pending in federal courts as Necessary and Proper to the exercise of congressional power to create inferior federal courts). 78. Seila Law LLC v. Consumer Financial Protection Bureau, 140 S. Ct. 2183 (2020). 79. See id. at 2197. 80. See id. at 2203. 81. See Eskridge and Frickey, “Quasi-­Constitutional Law,” 617 (discussing the super-­ strong clear statement rule against “congressional derogation of the President’s foreign affairs power”). 82. See id. at 595–­96 (explaining that the “substantive canons” reflect judicial value choices). 83. See id. at 630 (noting that the Court “has not thoroughly thought through its use of [normative] . . . canons” and may be using them unconsciously); Driesen, “Judicial Review,” 1051 (pointing out that the Franklin Court stated that “separation of powers” motivated its clear statement rule, but did not explain what separation of powers concern the APA implicates); Katyal and Schmidt, “Active Avoidance,” 2122 (discussing the Supreme Court’s use of “active avoidance” to rewrite statutes based on sloppy constitutional reasoning); cf. Almendarez-­Torres v. United States, 523 U.S. 224, 238 (1998) (explaining that courts should only invoke the canon of construing statutes to avoid constitutional issues when there is a serious doubt about the statute’s constitutionality lest courts “distort” legislative “policy choices”). 84. Posner, “Balance-­of-­Powers Arguments,” 1677. 85. See Fitzgerald, 457 U.S. 731. 86. 140 S. Ct. 2019 (2020). 87. Driesen, “Stealth Executive Privilege.” 88. Trump v. Vance, 140 S. Ct. 2412 (2020). 89. See, e.g., Goldsmith and Manning, “President’s Completion Power,” 2291–­93 (noting that presidential advisors have relied on implied powers cases and congressional appropriations to justify military action abroad); Goldsmith, “Zivotofsky II as Precedent,” 133–­45 (predicting that executive branch lawyers will read Zivotofsky generously in favor of the President in resolving foreign policy disputes with Congress); Koh, “Why the President (Almost) Always Wins,” 1309–­10 (noting that executive branch attorneys have read Curtiss-­Wright as establishing a canon of construction favoring reading statutory loopholes broadly to allow executive actions).



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90. See “A Sitting President’s Amenability to Indictment and Criminal Prosecution,” 24 Op. OLC 222, 237–­38 (2000) (OLC Memo) (finding that implied powers precedent supports the conclusion that the DOJ should not indict a sitting President); Dixon, “Re: Amenability of the President, Vice President, and other Civil Officers”; Amar, “On Prosecuting Presidents,” 671; Bloch, “Foreword,” 7; Chemerinsky, “Justice Delayed Is Justice Denied,” 24; Davis, “United or Untied,” 671; Howe, “The Prospect of a President Incarcerated,” 87; King, “Indicting the President: Can a Sitting President Be Criminally Indicted?” 417; Tribe, “Yes, the Constitution Allows Indictment of the President. 91. See Huq and Ginsburg, “How to Lose,” 177 (noting that monarchy rather than democracy remained the norm in Europe “until well into the nineteenth and early twentieth centuries”).

Chapter 5

1. See Scheppele, “Autocratic Legalism,” 555. 2. See Ginsburg and Huq, How to Save a Constitutional Democracy, 101. 3. See id. at 83–­91. 4. Levitsky and Ziblatt, How Democracies Die, 97–­117. 5. Tushnet, “Constitutional Hardball.” 6. Levitsky and Ziblatt, How Democracies Die, 8–­9. 7. Polyakova et al., “The Anatomy of Illiberal States,” 21. 8. Sadurski, Poland’s Constitutional Breakdown, 19. 9. Scheppele, “Autocracy Under Cover of the Transnational Legal Order.” 10. Scheppele, “Autocratic Legalism,” 574 n. 101. 11. Craig, “Transnational Constitution-­Making.” 12. See, e.g., Roznai, Unconstitutional Constitutional Amendments, 198–­99. 13. See Ginsburg and Huq, How to Save a Constitutional Democracy, 72–­73. 14. Levitsky and Way, Competitive Authoritarianism. 15. Id. at 107–­113. 16. Weber, “The Three Types of Legitimate Rule.” 17. See Levitas, What Is Happening in Poland and Why It Matters (Again), (showing that 57 percent of Poles consider Kaczyński the most powerful person in Poland, whilst only 17 percent think that the Prime Minister or the President is the most powerful person). 18. Sadurski, Poland’s Constitutional Breakdown, 14–­15. 19. Driesen, “Toward a Populist Political Economy of Climate Disruption,” 398–­99. 20. Kreko and Zsolt, “Explaining Eastern Europe,” 41–­42. 21. See, e.g., Karsai, “Let’s Not Fool Ourselves Either!” 22. See Varol, “Stealth Authoritarianism in Turkey,” 351–­53. 23. Id. 24. Id. at 350. 25. Id. 26. Id.

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Notes to Chapter 5

27. Id. The proposal also authorized a legislative veto and declaration of martial law. 28. Snyder, The Road to Unfreedom. 29. Kadioglu, “Reading John Stuart Mill in Turkey in 2017.” 30. Armstrong, “Chutes and Ladders,” 58. 31. Id. at 49, 55–­58. 32. Id. at 72. 33. Onyanga-­Omara, “Hungary Declares State of Emergency Amid Migrant Crisis.” 34. Vinograd, “Europe’s Refugee Crisis.” 35. Kafkadesk, “Hungary Extends ‘Migration State of Emergency.’” 36. Scheppele, “Orban’s Emergency.” 37. Kovács, “Hungary’s Orbanistan.” 38. See Scheppele, “Autocratic Legalism,” 549–­50. 39. See id. at 550. 40. See id. at n. 105. 41. Id. 42. Bold, “Briefing on the Polish Civil Service Act.” 43. Springer, “Vicious Cycle,” 109–­28. 44. Sadurski, Poland’s Constitutional Breakdown, 137. 45. Scheppele, “Autocratic Legalism,” 575. 46. Id. 47. Venice Commission, “Opinion on Act CLXIII of 2011.” 48. Sadurski, Poland’s Constitutional Breakdown, 124–­26. 49. Id. 50. See id. at 44–­45. Cf. Comey, A Higher Loyalty, 234 (discussing the norm of the FBI Director not meeting privately with a President, lest the meeting undermine the bureau’s integrity and independence). 51. See Sadurski, Poland’s Constitutional Breakdown, 125. 52. Id. at 126. 53. The 2017 referendum renamed this Council as the “Council of Judges and Prosecutors” (HSK), eliminating the word “high.” 54. Magyar, Post-­Communist Mafia State, 50–­51, 223–­24. 55. Kreko and Zsolt, “Explaining Eastern Europe,” 43. 56. See Varol, “Stealth Authoritarianism,” 1707–­10. 57. See Varol, “Stealth Authoritarianism in Turkey,” 346. 58. Tecimer, “The Curious Case of Article 299.” 59. George, “Purges and Paranoia.” 60. Polyakova et al., “The Anatomy of Illiberal States,” 11. 61. Kadioglu, “Reading John Stuart Mill in Turkey.” 62. Steinbeis, “Being a Good Dictator Is Not So Easy.” 63. Council of Europe Platform to Promote the Protection of Journalism and the Safety of Journalism, “Polish Political Party Leader Brings Libel Action.” 64. Bankuti, Halmai, and Scheppele, “Hungary’s Illiberal Turn,” 138, 140. 65. Id.



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66. See Tóth, Constitution for a Disunited Nation, 256. 67. Id. at n. 31. 68. Cf. Albert and Pal, “The Democratic Resilience of the Canadian Constitution,”117, 127–­32 (arguing that Canada’s independent electoral commission and other administrative entities have contributed to Canada’s constitutional resilience); see generally Ackerman, “The New Separation of Powers,” 633–­729. 69. See Sadurski, Poland’s Constitutional Breakdown, 141. 70. Id. at 140–­41. 71. See id. at 141–­42; Sadurski, “Constitutional Crisis in Poland,” 257, 260. 72. Organization for Security and Co-­operation in Europe, “Turkey, Constitutional Referendum,” 2, 7, 8. 73. Id. at 8. 74. See Scheppele, “Hungary: An Election in Question, Part II.” 75. Polyakova et al., “The Anatomy of Illiberal States,” 14. 76. See Scheppele, “Hungary: An Election in Question, Part IV.” 77. Bankuti, Halmai, and Scheppele, “Hungary’s Illiberal Turn,” 139–­40. 78. Tóth, Disunited Nation, 258–­59. 79. Kreko and Zsolt, “Explaining Eastern Europe,” 44–­46. 80. “The Entanglement of Powers,” The Economist, September 6, 2019, 16. 81. Id. 82. Freedom House, “Freedom of the Press 2017: Turkey.” 83. Id.; Helsinki Human Rights Organizations, “Resisting Ill Democracies Europe,”, 20; Chapman, “Pluralism Under Attack.” 84. The Act Amending the Broadcast Act, Polish Constitutional Tribunal, March 2016. 85. See Seila Law LLP v. Consumer Financial Protection Bureau, 140 S. Ct. 2183, 2202 (2020). 86. See Sadurski, Poland’s Constitutional Breakdown, 16. 87. See id. at 139. 88. In addition, Kaczyński himself brought a civil case on behalf of PiS against Sadurski for discrediting an organization “in the face of public opinion,” which is illegal under Article 212 of the Polish criminal code, albeit with a truth defense available. 89. Helsinki Human Rights Organizations, “Resisting Ill Democracies Europe,” 20. 90. Cf. Tecimer, “Recognizing Court-­Packing.” 91. See Lucia v. SEC, 138 S. Ct. 2044, 2064 (2018) (Breyer, J., concurring) (accusing the Court of risking step-­by-­step unraveling of the administrative adjudication system and perhaps of the civil service); Masott, “‘Officers’ in the Supreme Court: Lucia v. SEC,” 308 (pointing out that the government had argued that the President must have the ability to remove an administrative law judge). 92. Tóth, Disunited Nation, 251. 93. See id.; Sadurski, Poland’s Constitutional Breakdown, 99–­100. 94. I-CONnect (blog); Varol, “Turkey’s New Majoritarian Difficulty”; Cali and Durmus, “Judicial Self-­Government as Experimental Constitutional Politics,” 1671–­1706;

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Notes to Chapters 5 and 6

Varol, Pellegrina, and Garoupa, “An Empirical Analysis of Judicial Transformation in Turkey,” 187–­216; Bali, “The Perils of Judicial Independence.” 95. See Sadurski, Poland’s Constitutional Breakdown, 101–­2. 96. Venice Commission, “Hungary Opinion on the Law of Administrative Courts.” 97. Id. at ¶ 13. 98. “The Entanglement of Powers,” 16. 99. Turlukowski, “Administrative Justice in Poland,” 131–­32. 100. Id. at 132. 101. Sadurski, Poland’s Constitutional Breakdown, 264–­66. 102. Id. at 263. 103. Order of the Vice-­President of the Court in Case C-619/18 R Commission v. Poland; Venice Commission, “Opinion on the Draft Act Amending the Act on the National Council of the Judiciary.” 104. Polyakova et al., “The Anatomy of Illiberal States,” 19. 105. See “Polish Judge Punished by the New Disciplinary Chamber.” 106. European Commission, “The 2019 EU Justice Scoreboard (table 45). 107. Venice Commission, “Opinion on the Draft Act,” (n. 98), ¶¶ 35–­6. 108. Id. at ¶ 37. 109. Scheppele, “Constitutional Coups and Judicial Review,” 72. 110. See id. at 71; Levitsky and Ziblatt, How Democracies Die, 80. 111. Scheppele, “Constitutional Coups,” 75. 112. Bankuti, Halmai, and Scheppele, “Hungary’s Illiberal Turn,” 141–­42. 113. Scheppele, “Constitutional Coups,” 74. 114. Sadurski, Poland’s Constitutional Breakdown, 2019, 73. 115. Id. at 75. 116. See id. at 79–­84. 117. Varol, Pellegrina, and Garoupa, “An Empirical Analysis of Judicial Transformation in Turkey,” 192. 118. Id. at 194. 119. See id. at 197–­98. 120. Id. at 198. 121. Id. at 210–­16. The changes were subtle enough that the Venice Commission did not condemn the reform. See Venice Commission, “On the Draft Law on the High Council of Judges and Prosecutors.” 122. Republic of Turkey Constitutional Court, “General Assembly Press Release.” 123. Turkish Constitutional Court, Case No. 2016/166, November  11, 2016, http://kararlaryeni.anayasa.gov.tr/Karar/Content/88fb7250-c8cc-4e9d-b723-c1a142 78c17b?excludeGerekce=False&wordsOnly=False.

Chapter 6

1. Kagan, “Presidential Administration”; Watts, “Controlling Presidential Control.” 2. See, e.g., Driesen, “Is Cost-­Benefit Analysis Neutral?” 372–­73. 3. Driesen, Keck, and Metroka, “Half a Century of Supreme Court Clean Air Act



Notes to Chapter 6

195

Interpretation,” 1794–­95, 1853; Sunstein, “The Office of Information and Regulatory Affairs,” 1838–­78. 4. Watts, “Controlling Presidential Control,” 699. 5. See Texas v. United States, 809 F.3d 134 (5th Cir. 2015), affirmed by an equally divided Court sub nom. United States v. Texas, 136 S. Ct. 2271 (2016) (mem.). 6. Mueller, “Report on the Investigation into Russian Interference in the 2016 Presidential Election,” 62–­77, 107–­113. 7. Driesen, “President Trump’s Executive Orders and the Rule of Law.” 8. Id. at 508–­9. 9. See Gresham v. Azar, 950 F. 3d 93 (D.C. Cir. 2020) (holding that the administration’s waiver to permit states to impose work requirements on beneficiaries of Medicare violated the ACA); New York v. United States Department of Labor, 363 F. Supp. 3d 109 (D.D.C. 2019) (holding that the Trump administration’s exemption of many employer-­ sponsored health plans from ACA regulation effectuates an “end run” around the ACA as directed by the executive order); Stewart v. Azur, 366 F. Supp. 3d 125 (D.D.C. 2019); Stewart v. Azur, 313 F. Supp. 3d 237, 243 (D.D.C. 2018). 10. “Roundup: Trump-­Era Agency Policy in the Courts,” NYU School of Law Institute for Policy Integrity, policyintegrity.org/trump-court-roundup (last visited on November 19, 2020). 11. Revesz, “Institutional Pathologies in the Regulatory State,” 213. 12. Rein, Costa, and Paquette, “Shutdown Gives Some Trump Advisers What They Have Long Wanted.” 13. Driesen, “Firing U.S. Attorneys: An Essay.” 14. Liptak, “Conservative Lawyers Say Trump Has Undermined the Rule of Law”; Schmidt and Haberman, “Trump Wanted to Order Justice Dept. to Prosecute Comey and Clinton.” 15. Wittes, “Thoughts on the Impending Prosecution of Andrew McCabe.” 16. Department of Commerce v. New York, 139 S. Ct. 2551 (2019). 17. Perlroth and Sanger, “White House Eliminates Cybersecurity Coordinator Role.” 18. Daley, Ratf**ked. 19. See Driesen, “Firing U.S. Attorneys,” 707. 20. See Director of the Office of National Intelligence, “Background to ‘Assessing Russian Intentions and Activities in Recent U.S. Elections’” (noting that “we did not make an estimate” of the impact of Russian activities on the 2016 election’s “outcome”). 21. Ginsburg and Huq, How to Save a Constitutional Democracy, 110. 22. Orts, “Senate Democracy,” 23. Id. 24. Id. at 1987. 25. Mayer, “Trump TV.” 26. Shane, Weise, and Sanger, “New Review of Pentagon Cloud Bids.” 27. Ziran, Plaintiff in Chief, 121–­22. 28. See Robertson, “A Coup or a Couch.” 29. Id.

196

Notes to Chapters 6 and 7

30. Supreme Court Advocates-­on-­Record Association v. Union of India (1993) 4 SCC 441 (India). 31. See Levitsky and Ziblatt, How Democracies Die, 119. 32. See id. at 166–­67. 33. See id. at 75–­76; Albert, Constitutional Amendments, 97. 34. Skowronek, The Politics Presidents Make, 74–­75. 35. Kim, “The President’s Immigration Courts” (assessing presidential politicization of adjudication of immigration cases); “Administrative Law—­Appointments Clause—­Solicitor General Issues Guidance on Administrative Law Judges After Lucia v. SEC” (discussing administrative guidance using Lucia as an excuse to erode ALJ independence); “Leading Cases—­C onstitutional Law—­Article II—­Appointments Clause—­Officers of the United States—­Lucia v. SEC” (finding that Lucia opens up politicization of adjudication of social security benefits cases). 36. Cf. Browning, “The Suffocation of Democracy” (discussing the extent to which democratic erosion in the United States resembles developments in the Weimar Republic). 37. Tooze, Crashed, 491–­92. 38. Graber, Levinson, and Tushnet, Constitutional Democracy in Crisis? 445–­625. 39. Ginsburg, “The Jurisprudence of Anti-­Erosion,” 833 (noting that a significant minority of Americans would support a military takeover).

Chapter 7

1. See, e.g., Levitsky and Ziblatt, How Democracies Die; Ziblatt, Conservative Parties and the Birth of Democracy. 2. Cf. Greene, Permanent States of Emergency and the Rule of Law, 14. 3. Driesen, The Economic Dynamics of Law. 4. Runciman, The Confidence Trap, 56 (discussing democracies’ ability to correct errors as the core advantage enabling them to win World War I). 5. See, e.g., Ely, Democracy and Distrust. 6. Posner and Vermeule, The Executive Unbound, 33, 60–­61. 7. Shane, Madison’s Nightmare. 8. Goldsmith, Power and Constraint, 185–­86. 9. See Nixon v. Fitzgerald, 457 U.S. 731, 748 n. 27 (1982). 10. Clinton v. City of New York, 524 U.S. 417, 449–­53 (1998). 11. Id. at 448. 12. Id. at 463–­66. 13. See id. at 449–­51. 14. See id. at 451–­52. 15. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 589, 593–­94, 629, 634, 641–­42, 649–­55 (1952). 16. Driesen, “President Trump’s Executive Orders and the Rule of Law,” 504–­5; Associated Press, “Trump Gets Court Victory in Sanctuary Cities Case.” 17. Levitsky and Ziblatt, How Democracies Die, 188–­92.



Notes to Chapter 7

197

18. Ziblatt, Conservative Parties. 19. Ginsburg, “The Jurisprudence of Anti-­Erosion,” 826. 20. Ginsburg and Huq, “Democracy’s Near Misses,” 16–­30. 21. Ginsburg, “The Jurisprudence of Anti-­Erosion,” 850–­52. 22. Id. at 836. 23. Id. at 839–­40. 24. Sadurski, Poland’s Constitutional Breakdown, 195–­96. 25. Id. at 196. 26. Ginsburg and Huq, How to Save a Constitutional Democracy, 37–­39; Levitsky and Ziblatt, How Democracies Die, 89–­90. 27. Levitsky and Ziblatt, How Democracies Die, 87–­92. 28. South Carolina v. Katzenbach, 383 U.S. 301, 311–­12 (1966). 29. Klarman, From Jim Crow to Civil Rights, 138, 236. 30. Id. at 201. 31. 345 U.S. 461 (1953); Klarman, From Jim Crow to Civil Rights, 201–­4. 32. Klarman, From Jim Crow to Civil Rights, 238. 33. Id. 34. Id. 35. Id. at 239. 36. Id. at 239–­40. 37. Id. at 240. 38. Id. 39. Id. at 246–­48. 40. Id. at 248. 41. See Shelby County v. Holder, 570 U.S. 529, 547–­48 (2013). 42. Klarman, From Jim Crow to Civil Rights, 454–­56. 43. Youngstown, 343 U.S. at 594, 649–­55 (Justices Frankfurter and Jackson, concurring). 44. La Shier and Stanish, “The National Security Impacts of Climate Change,” 27–­43. 45. Mosher and Gold, “The Odds That a Gun Will Kill the Average American May Surprise You”; Nowrasteh, “Terrorism and Immigration: A Risk Analysis” (showing that terrorists committed 3,432 murders on U.S. soil from 1975 through 2015, which works out to less than a hundred murders per year on average even including the 9/11 attacks). 46. Gross, “Chaos and Rules,” 1030. 47. Bush, “Address to a Joint Session of Congress and the Nation.” 48. Gross, “Chaos and Rules,” 1030–­31. 49. Kochenov and Bard, “The Four Elements of the Autocrats’ Playbook” (identifying manufacture of national security threats as a standard part of the autocrat’s repertoire). 50. Ackerman, Before the Next Attack. 51. Hamdi v. Rumsfeld, 542 U.S. 510, 536 (2004). 52. See Seila Law LLC v. Consumer Financial Protection Bureau, 140 S. Ct. 2183, 2198–­2204 (2020).

198

Notes to Chapter 7

53. See id. at 2198 n. 2. 54. Cf. Sunstein, “Trump White House Seeks New Power Over Agencies.” 55. NLRB v. Noel Canning, 573 U.S. 513, 570–­71 (2013) (Scalia, J., concurring); cf. Clinton v. City of New York, 524 U.S. 417, 449–­53 (1998) (Kennedy, J., concurring). 56. Wright, “The Take Care Clause.” 57. Posner and Hemel, “Presidential Obstruction of Justice,” 1277. 58. Mueller, “Report on the Investigation Into Russian Interference in the 2016 Presidential Election,” 168–­81. 59. Such an approach may appear unnatural to a court accustomed to only supplementing presidential power and never implying constraints on presidential power to protect congressional power. The Constitution contains a check on presidential circumvention of the Senate’s role in appointing “Officers of the United States,” the Recess Appointments Clause, which limits the timing and duration of appointments of these high officials. Noel Canning, 573 U.S. 513. A formalist approach might lead the Supreme Court to decline to imply constraints on officers it does not consider to be Officers of the United States, even if the statutes require senatorial approval of permanent occupants of the same office. But the Court’s tendency to generously imply presidential power while failing to imply congressional power lacks any principled justification, as I have shown elsewhere. 60. Several variants on this problem are possible. See, e.g., Shane, “How President Trump Circumvents the Senate Advice and Consent Function”; Vladeck, “Trump Is Abusing His Authority to Name ‘Acting Secretaries.’” 61. Cf. Noel Canning, 573 U.S. at 522–­24, 569 (majority and concurring opinions). 62. Driesen, “Firing U.S. Attorneys: An Essay,” 725–­26. 63. Cf. United States v. Morrison, 487 U.S. 654, 705 (1988) (Scalia, J., dissenting) (arguing that the President must have exclusive control over exercise of prosecutorial power). 64. Seila Law LCC v. Consumer Financial Protection Bureau, 140 S. Ct. 2183, 2199–­2200 (2020). 65. Myers v. United States, 272 U.S. 52, 173–­74 (1926). 66. See id. at 250–­61 and n. 13 (Brandeis, J., dissenting) (showing that the practice of the early Republic was to only permit removal for cause or by Senate approval of a successor). 67. See id. at 692–­93 (majority opinion). 68. Bailey, The Idea of Presidential Representation, 58. 69. Lessig and Sunstein, “The President and the Administration.” 70. Pildes, “Law and the President,” 1396–­97 (discussing resistance to the surveillance program); Sullivan and Shear, “Trump Sees an Obstacle to Getting His Way on Immigration.” 71. Fallon, “Interpreting Presidential Power.” 72. Cf. id. at 379–­80. 73. See Trump v. Hawaii, 138 S. Ct. 2392, 2420 (2018) (requiring a plausible relationship between a policy governing foreign entry into the United States and protecting the country).



Notes to Chapter 7

199

74. Driesen, “Judicial Review of Executive Orders’ Rationality,” 1020–­22. 75. Id. at 1019–­20. 76. Id. at 1045–­47. 77. Id. 78. 138 S. Ct. 2392 (2018). 79. Id. at 2441 (Sotomayor, S., dissenting). 80. See, e.g., President of the United States, “Presidential Permit,” art. 4. 81. Pozen, “Constitutional Bad Faith,” 908 (noting that the “Take Care Clause” “virtually cries out for” use of principles requiring good faith). 82. Gross, “Chaos and Rules,” 1034. 83. Brennan Center for Justice, “A Guide to Emergency Powers and Their Use.” 84. This would require the concurrence of the Governor in the states getting suspension. See 42 U.S.C. § 7410(f). The Clean Air Act, however, relies heavily upon state law requirements to achieve its goals. 85. Cf. Youngstown, 343 U.S. at 659 (Burton, J., concurring) (distinguishing between the claimed emergency presented by the Korean War with the “catastrophic situations” of “imminent invasion or threatened attack”); Greene, Permanent States of Emergency, 19. 86. Greene, Permanent States of Emergency, 120–­21. 87. 287 U.S. 378, 387–­89 (1932). 88. 279 U.S. 253 (1929). 89. Trump, 138 S. Ct. at 2420. 90. See id. 91. See id. 92. Cf. Ginsburg, “The Jurisprudence of Anti-­Erosion,” 839 (note that courts help citizens agree that a rule violation has occurred). 93. See Trump, 138 S. Ct. at 2418–­19 (justifying narrow judicial review as based in the notion that those seeking admission to our country have no “right to entry”). 94. Driesen, “Trump’s Role Model.” 95. Cf. Supreme Court Advocates-­on-­Record Association v. Union of India (1993) 4 SCC 441 (India) (interpreting a provision giving the Chief Executive appointment power in consultation with the Chief Justice as requiring the Chief Justices’ concurrence); Supreme Court Advocates-­on-­Record Association v. Union of India, (2016) 5 SCC 1 (India) (pointing out that the chief executive has a conflict of interest when making judicial appointments). 96. Bradley and Morrison, “Historical Gloss and the Separation of Powers,” 438–­44; Levinson and Pildes, “Separation of Parties, Not Powers.” 97. Driesen, “Standing for Nothing,” 98. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 642 (1952) (Jackson, J., concurring) (noting that “[n]othing in our Constitution is plainer than that declaration of war is entrusted to Congress”). 99. See Morrison, 487 U.S. at 701–­2 (Scalia, J., dissenting) (explaining that the “political consequences” of “seeming to break the law” are “substantial.”); Huq, “Binding the Executive (by Law or by Politics)”; Pildes, “Law and the President,” 1408–­9.

200

Notes to Chapter 7

100. Huq, “Binding the Executive,” 828, 832; cf. Johnsen, “Toward Restoring Rule-­of-­Law Norms,” 1205–­7. 101. See Huq, “Binding the Executive,” 803–­4; Pildes, “Law and the President,” 1407–­8, 1411. 102. Pildes, “Law and the President,” 1411–­12. 103. See id. at 1413. 104. Id. at 1412. 105. Huq, “Binding the Executive,” 833–­34. 106. Id. at 818. Indeed, he reports empirical evidence finding “no public learning” during election campaigns. Id. at 820. 107. In fact, politicians’ apparent belief that most voters pay attention to policy and law contradicts the findings of the political science literature. See Achen and Bartels, Democracy for Realists; Criddle, “Fiduciary Administration,” 441, 447–­48; Driesen, “Executive Orders’ Rationality,” 1052–­53 (explaining why elections do little to deter legal violations). Posner and Vermeule claim that modern economies “tend to create” a “rational and informed public” that can “distinguish between gradations of [presidential] abuse” (The Executive Unbound). The political science literature on voting is quite clear that these tendencies have not created any such attentiveness to political processes among the great mass of voters who work pretty demanding jobs for a living. Even as a comment about elites, a suggestion that this degree of knowledge and attention prevails seems wildly optimistic in the face of the onslaught of many incremental and sometimes hidden abuses that establish an autocracy. At other junctures, Posner and Vermeule seem to recognize that the voters lack sufficient information to track the executive. See id. at 117, 123. 108. Ginsburg and Huq, How to Save a Constitutional Democracy, 193–­94. 109. Huq, “Binding the Executive,” 811. 110. “A Sitting President’s Amenability to Indictment and Criminal Prosecution,” 24 Op. OLC 222, 237–­38 (2000).

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INDEX

ACA, see Affordable Care Act Academic freedom, in Turkey, 103, 108 Adams, John, 24, 30, 36, 180n10 Administrative law judges (ALJs): appointments, 114, 134, 160; civil service protection, 160; removal, 134, 160 Administrative Procedure Act (APA), 41–­ 42, 83, 91, 125, 142, 143, 163–­64 Administrative state, 39–­40, 42, 122–­24 Affordable Care Act (ACA), 88–­89, 125 Afghanistan war, 51–­52 African Americans: citizenship, 32; voting rights, 54, 147–­50 AKP, see Justice and Development Party ALJs, see Administrative law judges Al Qaeda, 51–­52, 82–­83 Amazon Web Services, 131 American Revolution, 13, 14 Amnesty International, 60–­61 Antifederalists, 4, 22, 135. See also Founders APA, see Administrative Procedure Act Appointments: control of, 122–­23; executive branch, 17–­19, 24–­25, 30–­31, 35, 92, 123–­24; to independent agencies, 69–­70; inferior officers, 17, 24–­25, 45; by judiciary, 45; presidential power in Constitution, 16–­18; prosecutors, 158–­59; Recess Appointments clause, 198n59; Senate approval, 17–­19, 24–­25, 92, 123–­24, 158–­ 59; temporary, 158–­59, 198n59. See also Judicial appointments; Removal power

Arbitrary and capricious test, 41–­42, 46–­ 47, 83, 166, 167, 174 Articles of Confederation, 14 Atkinson, Michael, 124 Attorney General, Office of, 28, 33. See also Department of Justice Autocrats: charismatic authority, 5, 101–­2, 120; economic repression, 105; fears manipulated by, 154, 155; parties supporting, 4, 96, 102, 119, 120, 135; populist demagogues, 102, 104, 120, 137. See also Democracy erosion; Erdoğan, Recep Tayyip; Heads of state; Kaczyński, Jaroslav; Hitler, Adolph; Orbán, Viktor Bad faith, Presidents acting in, 143–­44, 164–­65 Baker v. Carr, 54, 57–­58 Balanced Budget and Emergency Deficit Control Act of 1985, 69 Balance of powers, 1, 3, 15, 16–­19. See also Checks and balances Barr, William, 84, 127–­28 Bezos, Jeff, 131 Biden, Joe, 127 Bodnar, Adam, 113 Bolivia, 47 Border walls: Hungarian, 103–­4; on U.S.-­ Mexico border, 63, 66, 166 Bork, Robert, 44, 96–­97 Bowsher v. Synar, 69, 87 Bradley, Curtis A., 22–­23

221

222

Index

Brandeis, Louis, 5, 43, 145 Bribery, 89 Britain: emergency powers, 50; monarchy, 13–­14, 21 Broadcast media, see Media Brown v. Board of Education, 150 Buckley v. Valeo, 69–­70 Bureaucracies, see Civil service; Executive branch Bush, George W., 53, 79, 126–­27, 159. See also War on terrorism Carter, Jimmy, 56–­57, 79 Census, 83–­84, 128 CFPB (Consumer Financial Protection Bureau), see Seila Law LLC v. Consumer Financial Protection Bureau Chadha case, see INS v. Chadha Charismatic authority, 5, 101–­2, 120 Checks and balances: congressional oversight, 93, 142; Constitutional structure, 3, 12; individual rights protected by, 157; laws to correct judicial errors, 3, 143; on presidential power, 15–­19, 22, 162–­63; Senate approval of nominees, 17–­19, 24–­25, 92, 123–­24, 158–­59. See also Veto power China: elections, 98; relations with, 56–­57 Choper, Jessie, 169 Churchill, Winston, 141 City of Boerne v. Flores, 88 Civil commitment issue, 85–­86, 89 Civil rights movement, 148, 149 Civil service: apolitical nature, 5, 100; autocratic control, 100–­101, 104–­6; inferior officers, 17, 24–­25, 42–­43, 45, 160; legal protections, 5, 160; Pendleton Act, 35; rule of law and, 100; under Trump, 125–­26. See also Administrative law judges; Executive branch Civil society, shrinking public space, 99, 107–­8, 111, 131

Civil War, 27, 34, 37–­38, 166. See also Lincoln, Abraham Clapper v. Amnesty International USA, 60–­61, 62, 66 Climate disruption, 152 Clinton, Bill, 25, 45, 59, 60 Clinton, Hillary, 127 Clinton v. City of New York, 144 Colombian Constitutional Court, 146 Comey, James, 124, 127 Commander in Chief, see Presidential Power, Commander in Chief Comptroller General, 69 Comstock, United States v., 85–­86, 89 Congress: budgets, 69, 87; correction of judicial errors, 3, 143; encroachments on presidential power, 66–­70, 169; First, 23–­24, 28, 42, 43; foreign affairs role, 21–­22, 29–­30, 46, 80, 82–­ 83; judicial review of laws, 41; Lincoln and, 37; line-­item veto and, 61–­62, 144; partisan divisions, 169; prosecutions by, 28–­29. See also House of Representatives; Senate Congressional powers: appropriations, 63, 64, 93; in Constitution, 1, 15, 17–­ 19, 20–­22, 73; delegation to executive branch, 27, 29, 31, 39–­41, 46, 47–­48, 87, 92, 160; in foreign affairs, 21–­22, 29–­30, 80; implied, 15, 72, 73, 77, 78, 86–­89; limited by courts, 63, 64–­65, 94, 169; oversight, 93, 142, 173; policymaking, 1, 27, 28–­29, 30, 34–­35, 91, 160; vetoes of administrative actions, 67, 85, 92, 169; war declaration, 5–­6, 20–­21, 36–­37, 48, 59, 170–­7 1. See also Impeachment; Separation of powers Conservative legal movement, 11. See also Original intent; Unitary executive theory Constitution, U.S.: anti-­majoritarian features, 130–­31; balance of powers, 15, 16–­19; bill of rights, 16; congressional

Index   223 powers, 1, 15, 17–­19, 20–­22, 73; congressional structure, 20, 130; judiciary, 168; oaths to protect, 16, 161, 170; presidential power, 15–­19; ratification, 4, 12, 13, 18, 22; rule of law, 14–­15, 22; separation of powers, 12, 17–­19, 21–­22, 154 Constitutional interpretation: living constitutionalism, 3, 12–­13, 24, 26, 161; over time, 138. See also Judicial treatment of presidential power; Original intent; Unitary executive theory Constitutional norms, 96–­97, 119, 123–­24, 133, 157–­59, 162 Consumer Financial Protection Bureau (CFPB), see Seila Law LLC v. Consumer Financial Protection Bureau Coronavirus pandemic: emergency powers, 104, 137; mail-­in voting, 128 Corruption, 3, 30, 35, 62–­63, 107, 108, 124 Courts, see Judiciary; Supreme Court, U.S. Coxe, Tench, 18 Crime, 152–­53 Curtiss-­Wright Export Corp., United States v., 47–­48, 73, 82 Customs collectors, 29–­30 Cybersecurity, 128, 130 Dames & Moore v. Regan, 79–­80, 81 D.C. Circuit Court, 56, 57, 59, 60 Declaration of Independence, 13–­14, 49 Defense of Marriage Act, 64 Deliberative democracy, 129, 131 Demagogues, populist, 102, 104, 120, 137 Democracy: constitutional norms, 96–­97, 119; Declaration of Independence on, 14; deliberative, 129, 131; error correction, 3, 141, 143, 161; meaning, 14. See also Elections; Rights; Rule of law Democracy erosion: abuse of emergency powers, 95, 96, 136, 168; anti-­ majoritarian constitutions, 130–­31; capture of judiciary, 98, 134, 138; case

studies, 3–­4, 5, 95–­96, 97–­101; centralized control of prosecutions, 84, 106–­ 9, 126–­28, 157–­59; centralized control over elections, 109–­10, 126–­31, 136–­37, 148–­49; centralized control over law execution, 5, 95, 96, 100–­103, 104–­10, 122–­26, 155, 156–­61; consequences, 3; constitutional hardball, 97–­98, 121, 137; evasion of constitutional norms, 119; external shocks and, 137; gradual processes, 3–­4, 95; lessons from other countries, 4–­6, 49, 95, 135, 137, 139, 156, 157, 168; loss of independent judiciary, 96, 102, 103, 113–­19, 132–­35, 145–­46; media regulations and control, 98, 99, 111–­13; in Nazi Germany, 48–­50; political party roles, 4, 96, 102, 119, 120, 135, 140, 146, 149–­50; prosecuting political opponents, 107–­8, 127, 135, 157, 158; reversing, 150; role of chief executive, 95, 96, 101–­2, 119–­20; roles of legislation and constitutional amendment, 119; rule of law undermined, 100–­101, 108–­9, 157; shrinking public space, 99, 107–­8, 111, 131; tactical adjustments, 98. See also Hungary; Poland; Turkey Democracy erosion in United States: centralized control of prosecutions, 126–­ 28; centralized control over elections, 126–­31; centralized control over law execution, 122–­26, 155, 156–­61; complex uncertainty conditions, 121, 135–­38, 146, 147; incremental changes, 121–­22, 175; loss of independent judiciary, 132–­ 35, 138; potential for future, 2, 121–­22, 135–­38, 174–­75; removal power and, 122–­23, 160, 161–­62; Supreme Court rulings and, 2, 129; systemic vulnerability, 136; unitary executive theory and, 4–­5, 84, 95, 122–­24, 128, 131, 138, 174; in war on terrorism, 154–­56. See also Presidential power Democracy protection by judiciary:

224

Index

accounting for bad-­faith actions, 143–­ 45, 164–­65; constraints on presidential actions, 144–­47; emergency powers and, 164–­68; historical examples, 147–­ 49; importance, 2–­3, 121, 138, 139–­44, 161, 171, 174–­75; lessons from other countries, 95–­96, 134–­35, 139, 146–­47, 150, 162; as national security concern, 150–­56, 174; originalism and, 3, 12, 25–­26, 139–­40, 141–­42, 143–­44, 158; political effects, 171–­73; rule of law maintained, 51, 100, 138, 139, 162–­63. See also Judiciary Democratic Party: of Andrew Jackson, 33; gerrymandering, 129; Senate filibuster rule and, 133; Southern dominance, 148. See also Watergate burglary. Democratic sovereignty, 150–­56, 174 Department of Justice (DOJ): establishment, 29, 136; on Reagan executive order, 123; independence, 5, 158; Nixon and, 44, 126; policy against indicting sitting Presidents, 2, 84, 94, 173; on presidential powers, 84; in Reagan administration, 11, 44; special counsels and independent counsels, 44–­45, 84, 94, 173; in Trump administration, 94, 124, 127–­28, 132; voting rights enforcement, 85. See also Prosecutors Department of State, 28, 68 Department of War, 34 Dictators, see Autocrats; Hitler, Adolf Dogan Yayin, 107–­8 DOJ, see Department of Justice Duane, William J., 32 Duda, Andrzej, 98, 113, 118 Due Process jurisprudence, 41, 46–­47, 163 Eisenhower, Dwight D., 43 Elections: in autocracies, 98–­99, 109–­10; campaign financing, 2, 69; congressional, 20; as constraint on autocrats, 172; foreign interference, 1, 84, 124, 127,

128, 129–­30, 153; in Hungary, 99, 107, 109, 110; independent commissions, 109–­10, 156–­57; mail-­in voting, 128; meaningful competition, 98–­99; in Poland, 99, 130; tilting outcomes, 99, 107, 109–­10, 126–­31, 136–­37, 148–­49; in Turkey, 99, 107, 110; voter fraud, 127, 128, 129; white primaries, 148. See also Gerrymandering; Voting rights Embargoes, 29–­30, 36, 37–­38 Emergency powers: abuses, 63, 95, 96, 136, 164–­65, 166, 168, 173; congressional control, 35–­37, 38, 52–­53, 80, 92, 151; in coronavirus pandemic, 104, 137; delegation by Congress, 46, 92; in foreign affairs, 35–­37, 47–­48, 135; in France, 50; of Hitler, 48–­49, 50, 120; in Hungary, 103–­4, 137, 151, 164; judicial review, 38–­ 39, 46–­51, 52–­53, 164–­68; limits, 38–­39, 151, 162–­63, 166; Lincoln’s exercise of, 27, 37–­38; omission from Constitution, 5–­6, 20–­21, 49; presidential, 5–­6, 20–­ 21, 35–­39, 79–­80, 81, 165–­66; statutory provisions, 165–­66; Trump’s use of, 63, 166; in Turkey, 103, 116, 119, 151, 164, 165; in war on terrorism, 51–­53, 60–­61, 155; in wartime, 37–­39, 46–­50, 135, 171. See also National security Environmental Protection Agency (EPA), 40, 44, 123, 124 Erdoğan, Recep Tayyip: autocracy established by, 101, 106–­8; control of executive branch, 102–­3; coup attempt against, 102, 107, 112, 137; judicial appointments, 114, 116, 118–­19; on Kurds, 102; as populist demagogue, 102. See also Turkey Error costs, 142–­43, 161, 164 Eskridge, William N., 91 Ethics of Government Act, 45 European Commission, 98 European Court of Human Rights, 108 European Court of Justice, 98, 99, 116

Index   225 European Parliament, 115 European Union, 137 Executive branch: appointments, 17–­19, 24–­25, 30–­31, 35, 92, 123–­24; congressional delegation to, 27, 29, 31, 39–­41, 46, 47–­48, 87, 92, 160; departments, 19, 23, 28, 29; national security agencies, 53; oaths sworn by members, 16, 161; Office of Information and Regulatory Affairs, 123, 124; resistance to presidential decisions, 161–­62; secret operations, 55, 60–­61; Senior Executive Service, 125; unilateral control by presidents, 5, 123–­26; unitarian view of, 5. See also Civil service; Independent agencies; Removal power Executive orders, 41, 123, 125, 126 Executive power, see Presidential power; Unitary executive theory Executive privilege, 44, 86, 91, 93, 94, 143 Fallon, Richard, Jr., 162, 171 Fascism, 42, 48 FBI (Federal Bureau of Investigation), 124, 127 FCC, see Federal Communications Commission FEC, see Federal Election Commission Federal Communications Commission (FCC), 40, 131, 157 Federal courts, see Judiciary; Supreme Court, U.S. Federal Election Commission (FEC), 40, 69–­70, 109, 157 Federalist Papers, 12, 21, 34, 42, 155 Federalists, 22, 30–­31 Federal Trade Commission (FTC), 43 Fidesz: constitutional amendments, 133; control of elections, 109, 110; control of media, 111; parliamentary majority, 117, 119, 130; prosecutors selected by, 106, 107; role in democracy erosion, 102, 115, 117

Fifteenth Amendment, 88, 148 Fifth Circuit Court, 124 First Amendment, 2 Fishing quotas, 82 Flaherty, Martin S., 22–­23 Flynn, Michael, 127 Foreign affairs: congressional roles, 21–­ 22, 29–­30, 80; emergency powers, 35–­ 37, 47–­48, 135; justiciability doctrines, 56–­61; legislation, 29–­30, 46, 82–­83; separation of powers, 21–­22, 68; treaties, 18, 21, 57, 81. See also Wars Foreign affairs, presidential power: critics, 142; implied, 72, 82–­84, 86, 87, 91; judicial review avoided, 56–­60, 64, 72; in nineteenth century, 29–­30; recognition of foreign governments, 22, 68, 80–­81, 87; sole organ dictum, 48; treaty negotiation, 22; unitarian view of, 11, 23 Founders: balance of powers created by, 1, 3; fear of foreign influence, 16; intent of impeachment, 173; opposition to tyranny, 12, 13, 14, 20, 21, 24, 25–­26; on political parties, 15; prevention of tyranny as motive, 1, 3, 143–­44, 173; on removal power, 16–­17, 18, 23–­24; views of emergency powers, 5–­6, 20–­21, 38–­ 39, 49. See also Original intent Fourteenth Amendment, 88 Framers, 5, 12–­13, 20–­21. See also Constitution; Founders; Original intent France: emergency powers, 50; quasi-­war with, 36 Frankfurter, Felix, 49, 50, 74, 75, 77 Franklin v. Massachusetts, 83–­84, 91, 163 Freedom of speech, 2, 99, 108, 112–­13. See also Civil society Free Enterprise Fund v. Public Company Accounting Oversight Board, 70, 86–­87 Frickey, Philip P., 91 FTC, see Federal Trade Commission Garfield, James, 35

226

Index

Garland, Merrick, 133 Germany, see Nazi Germany; Weimar Germany Gerry, Elbridge, 22 Gerrymandering: democratic erosion and, 99; in Hungary, 110; in Poland, 109; in Turkey, 110; in United States, 2, 54, 57, 129, 132 Gilchrist, Ex Parte, 29–­30 Ginsburg, Tom, 130, 146 Goldwater, Barry, 56–­57 Goldwater v. Carter, 56–­59, 61, 62, 63, 64, 67, 68 Gonzalez, Alberto, 127, 159 Gorsuch, Ann, 124 Grant, Ulysses S., 34, 35, 38 Great Depression, 40 Guantanamo Bay, 52, 82–­83, 155 Gun violence, 152–­53 Habeas corpus writs, 21, 37, 38 Hamdan, Salim Ahmed, 52 Hamdan v. Rumsfeld, 52–­53, 83 Hamdi v. Rumsfeld, 82–­83, 155–­56, 167 Hamilton, Alexander, 16–­18, 21, 22, 28, 30, 34, 42, 123 Harrison, William Henry, 33 Heads of state: charismatic authority, 101–­2, 120; communist, 101; de facto, 101; monarchs, 13–­14, 16, 21, 22–­23; as threats to democracy, 4, 95, 96, 101–­2, 119–­20, 121. See also Autocrats; Tyranny Highland v. Russell Car & Snow Plow Co., 46–­47, 167 Hitler, Adolf, 48–­49, 50, 104, 120. See also Nazi Germany House of Representatives: appropriations power, 63, 64, 93; Constitutional structure, 20; in First Congress, 23–­24; redistricting, 83–­84. See also Congress; Impeachment Human rights, 154–­55

Humphrey’s Executor v. United States, 43 n. 64 Hungary: border wall, 103–­4; civil service, 104; Constitution, 96, 114, 117, 119, 130, 133; Constitutional Court, 96, 98, 117, 133, 134–­35; coronavirus pandemic, 104; corruption, 107; economic repression, 105; Election Commission, 109, 110; elections, 99, 107, 110; emergency powers, 103–­4, 151, 164; financial crisis, 137; immigration, 102, 103–­4, 137, 168; judiciary, 96, 100, 113–­14, 115, 117, 134–­35; Justice Minister, 114, 115; media regulations and control, 98, 111; Parliament, 104, 106, 110, 117, 119, 130; public prosecutors, 106, 107, 157. See also Fidesz; Orbán, Viktor Huq, Aziz, 130, 146, 172 ICJ, see International Court of Justice Immigration and Naturalization Act (INA), 67 Immigration and Naturalization Service, see INS v. Chadha Immigration policies: in Hungary, 102, 103–­4, 137, 168; naturalization rules, 21; of Trump, 66, 72–­73, 124, 145, 164, 167 Impeachment: of Clinton, 45; of federal officials, 17, 18, 23; Founders’ intent, 173; of Johnson, 27, 34–­35; of judges, 20, 132, 134; limits, 173; Nixon’s resignation and, 44; procedures, 57–­58; of Trump (first), 127 Imperial presidency, see Presidential power Implied powers: of Congress, 15, 72, 73, 77, 78, 86–­89; defined, 76–­77; presidential, 72–­77, 86, 89, 90 Implied powers doctrine: clear statement rules, 83–­84, 91; concurrent authority, 75; congressional intent not considered, 78–­84, 90, 91; consequences for rule of law, 90–­94; constitutional basis,

Index   227 73; in foreign affairs, 72, 82–­84, 86, 87, 91; historical precedents, 84–­86; Jackson framework, 74–­75, 77, 78–­79, 81, 83; means/end reasoning, 73, 77, 86–­89, 90; in national security, 72–­73; potential future applications, 94; unitary executive theory and, 89–­90 INA, see Immigration and Naturalization Act Independent agencies: appointments, 69–­70; election commissions, 109, 156–­57; establishment, 39–­40; maintaining independence, 70, 156–­57; rationale, 123, 156; removal power and, 40, 43, 86–­87, 89–­90, 91, 156–­57; unitarian view of, 4–­5 Independent Counsel Act, 44–­45 Independent counsels, 25, 45. See also Special counsels Independent Judiciary, see Judicial Independence Inferior officers, 17, 24–­25, 42–­43, 45, 160 INS v. Chadha, 67–­68, 85, 90, 92, 93, 169, 171 International Convention for the Regulation of Whaling (Whaling Convention), 82 International Court of Justice (ICJ), 79 Interstate Commerce Commission, 39 Iran hostage crisis, 79–­80, 81 Iraq war, 51–­52, 142 Israel, 68, 80–­81, 102 Jackson, Andrew, 27, 31, 32–­33 Jackson, Robert H., 48–­51, 74–­75, 77, 78–­ 79, 81 Japanese American internments, 50 Japan Whaling Association v. American Cetacean Society, 82 Jefferson, Thomas, 29–­31, 35–­36, 134 Johnson, Andrew, 27, 34–­35 Journalism, see Media Judicial appointments: administrative

law judges, 114, 134, 160; in Poland, 118; presidential power, 114, 132–­33, 168; Senate confirmation, 20, 44, 96–­97, 133, 168; to Supreme Court, 44, 96–­97, 114, 133, 168; by Trump, 133, 134; in Turkey, 114, 116, 118–­19; unitary executive theory and, 114, 134 Judicial independence, 17, 100, 113, 115, 132–­35, 168–­69 Judicial review: abstract, 117, 118, 134; for arbitrariness, 41–­42, 46–­47, 83, 163–­64, 166, 167, 174; of emergency powers, 38–­ 39, 46–­51, 52–­53, 164–­68; in Hungary, 117, 134; Marbury v. Madison, 144–­45; in Poland, 118, 134; of presidential decisions, 41–­42, 70–­7 1, 155–­56, 163, 165; unitary executive theory and, 65, 71, 140, 163–­64 Judicial treatment of presidential power: constraints, 144–­46; emergency powers, 38–­39; in foreign affairs, 56–­61, 72; general principles, 140–­56; political effects, 171–­73; recommendations, 140, 156–­7 1, 174–­75; setting precedents, 145. See also Democracy protection by judiciary; Judicial review; Justiciability doctrines Judiciary: administrative law courts, 114, 134, 160; capture of, 96, 98, 102, 113–­19, 132–­35, 138; congressional control, 20; Constitutional structure, 168; investigations, 25; legitimacy, 139–­40, 145, 150; lower courts, 114; obedience to rulings, 144–­45, 147, 170; retirements, 133–­34; state courts, 132, 147. See also Constitutional interpretation; Democracy protection by judiciary; Judicial appointments; Supreme Court, U.S. Justice and Development Party (AKP), 102, 107, 110, 116, 118, 130, 136. See also Turkey Justiciability doctrines: in domestic affairs, 61–­66; flexibility, 55–­56, 70; in foreign

228

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affairs, 56–­61; inconsistent applications, 56, 70; political question, 54, 56–­58, 59, 60, 62, 67, 170; presidential power increased by, 54–­55, 71, 134, 169–­70, 171; ripeness, 54, 56, 58–­59, 62–­63, 69; standing, 54, 55–­56, 59–­61, 62, 63, 65, 66–­67, 70 Kaczyński, Jaroslav: control of prosecution, 106, 108–­9; as de facto head of state, 98, 99, 101, 105, 106; lawsuit against Sadurski, 193n88; as populist demagogue, 102, 104. See also Law and Justice Party; Poland Kagan, Elena, 123 Kavanaugh, Brett, 60, 164, 173 Klarman, Michael J., 148, 150 Koh, Harold Hongju, 72 Korean War, 48, 74, 75, 76, 77, 81 Korematsu, 50 Kosovo, 59 Kovacs, Kathryn, 42 Law and Justice Party (PiS): control of elections, 109; judicial appointments, 108, 118; media laws, 112, 113; parliamentary majority, 101, 109, 112, 130; role in democracy erosion, 102, 105, 109. See also Kaczyński, Jaroslav Law enforcement, 71. See also Prosecutors Legitimacy: of judiciary, 139–­40, 145, 150; of Presidents, 172 Levitsky, Steven, 146 Lincoln, Abraham, 27, 34, 37–­38 Line-­item veto, 61–­62, 144 Little v. Barreme, 36, 59 Living constitutionalism, 3, 12–­13, 24, 26, 161 Lochner v. New York, 41 Locke, John, 20, 22 MacArthur, Douglas, 76 Madison, James, 24, 145, 169

Marbury v. Madison, 144–­45 Marshall, John, 26, 73, 76, 77, 142, 145 Massachusetts, Franklin v., 83–­84, 91, 163 McCabe, Andrew, 127 McConnell, Mitch, 133 McCulloch v. Maryland, 15, 26, 32, 73–­74, 76, 77, 84–­85, 142 McLane, Louis, 32 Medellin v. Texas, 79, 80, 81 Media: corporate, 131; democratic erosion and, 131, 136, 137; government control, 98, 99, 111–­13; prosecutions of journalists, 107–­8, 112; repression, 107–­8, 136, 137. See also Social media Media regulation: democracy erosion and, 98, 99, 111–­13; in Hungary, 98, 111; independent commissions, 156–­57; misuse of, 136; in Poland, 108, 112–­13, 118; in Turkey, 111–­12; in United States, 131 Meese, Edwin, 11 Metropolitan Washington Airports Authority v. Citizens for the Abatement of Aircraft Noise, 70 Mexican-­American War, 36–­37 Military, see President as commander-­in-­ chief; War Power: congressional; War power of presidents. See also Wars Military commissions, 38–­39, 52, 83, 167 Milligan, Ex parte, 38–­39, 49, 166, 167 Monarchy: British, 13–­14, 21; constitutional, 16; powers, 22–­23 Monroe, James, 31 Montesquieu, Charles de Secondat, baron de, 22, 155 Morrison v. Olson, 25, 44–­45 Mortenson, Julian David, 22–­23 Mueller, Robert, 84, 94, 124, 128 Muslims: immigrants to Eastern Europe, 102, 103–­4, 137; Trump’s travel bans, 72–­73, 145, 164, 167 Myers v. United States, 42–­43, 136, 145, 159, 160

Index   229 National bank, 15, 27, 28, 31, 32–­33, 74, 76 National Council of Radio and Television Broadcasting (Broadcast Council), Poland, 112–­13, 118 National Electoral Commission, Poland, 109 National Industrial Recovery Act, 40, 41 National security: abuse of presidential powers, 173; defense of democratic sovereignty as, 150–­56, 174; defining, 151–­54; judicial deference to executive branch, 151, 164–­65, 167, 168; legislation, 29–­30; misuse of rationale, 164–­ 65, 167–­68; presidential power, 72–­73, 155–­56; responses by presidents, 142. See also Emergency powers Nazi Germany, 47, 48–­49, 50, 74, 104, 120 New Deal, 40, 41, 42, 133 New originalists, 24. See also Original intent News media, see Media New York Constitution, 19 Nielsen, Kirsten, 124 Nixon, Richard: EPA establishment, 123; Oval Office tape recordings, 86; “Saturday night massacre,” 44, 126; Watergate scandal, 43–­44, 86 Nixon, United States v., 86, 90–­91, 93, 94, 173 Nixon v. Fitzgerald, 86, 90–­91, 93, 143 Nondelegation doctrine, 40–­41, 42, 47–­ 48, 163 Non-­Detention Act, 82–­83 North Carolina: African American voters, 148; state legislature, 147; Supreme Court, 132 Nuremberg war crimes trials, 48–­49, 50 Oath Clause, see Rule of Law, Oaths to Protect Constitution Obama administration, 64, 88–­89, 124, 133 Obstruction-­of-­justice laws, 84, 158

Office of Information and Regulatory Affairs (OIRA), 123, 124 One-­house veto, 67, 85, 92, 169 Orbán, Viktor: autocracy established by, 101, 104, 105, 106, 117–­18; control of Parliament, 110; emergency powers, 103–­4, 137; immigration policies, 103–­ 4, 137, 168; as populist demagogue, 102, 104. See also Hungary Original intent: avoiding autocracy as, 3, 12, 25–­26, 139–­40, 141–­42, 143–­44, 158; evidentiary sources of, 12, 13; judicial interpretation based on, 12–­13, 24, 25, 139–­40; limits, 24–­25; removal power and, 161; supporters, 3, 11, 12, 13, 22, 24; view of presidential power, 11, 22–­23, 160–­61. See also Founders; Framers Panama Refining Co. v. Ryan, 41 Pandemic, see Coronavirus pandemic Paraguay, 47 Partisan polarization, 129, 137, 169, 172. See also Political parties Patriot Act, 53 Patriot Act Amendments, 159 Patronage, 30–­31 PCAOB, see Public Company Accounting Oversight Board Pendleton Act, 35 Pennsylvania Supreme Court, 132 Perkins, United States v., 43 Pierce, Franklin, 33 Pildes, Richard H., 172 PiS, see Law and Justice Party Poland: autocratic government, 97, 98, 99, 101, 105, 147; civil service, 104, 105; Constitution, 99, 105, 114, 115; Constitutional Court, 97, 108, 115, 118, 134–­35, 145; constitutional norms, 96; corruption, 108; elections, 99, 130; immigration, 102, 168; judiciary, 98, 100, 113–­14, 115–­16, 117; Justice Minister, 106, 108, 116; media regulations and control,

230

Index

108, 112–­13, 118; National Electoral Commission, 109; Parliament, 101, 105, 109, 113, 119, 130; procurement policies, 113; prosecutors, 96, 106, 108–­9; resistance to autocracy, 99. See also Kaczyński, Jaroslav; Law and Justice Party Political parties: of autocratic leaders, 4, 96, 102, 119, 120, 135; Founders’ views, 15; rise of, 30–­31; roles in democracy loss, 96, 119, 120, 135, 140, 146, 149–­50; spoils system, 31, 35. See also Elections; and specific parties Political question doctrine, 54, 56–­58, 59, 60, 62, 67, 170 Politics: influence of legal decisions, 171–­ 73; public knowledge of issues and processes, 172, 200n107; role in democratic decline or strengthening, 140, 146, 171–­72 Polk, James K., 36–­37 Populist demagogues, 102, 104, 120, 137 Posner, Eric A., 140, 142, 171, 200n107 Postmasters General, 23, 29, 42, 128 Presidential power: accountability, 16, 86, 90–­91, 140, 162–­68, 173; checks on, 15–­ 19, 22, 162–­63; as commander-­in-­chief, 21, 36, 37, 38, 74, 76, 77; congressional encroachments, 66–­70, 169; Constitutional structure, 15–­19; delegation, 5, 163; domestic affairs, 61–­62; executive orders, 41, 123, 125, 126; executive privilege, 44, 86, 91, 93, 94, 143; Framers’ view, 11, 22–­23, 160–­61; horizontal questions, 23; implied, 72–­77, 86, 89, 90; in nineteenth century, 27, 28–­39; political constraints, 140; potential abuse, 1–­2, 138; rule of law and, 14–­15, 138, 139; vertical questions, 23. See also Appointments; Emergency powers; Foreign affairs; Implied powers doctrine; Judicial treatment of presidential power; Removal power; Separation

of powers; Unitary executive theory; Veto power; War power Presidential power, growth of: recent, 1–­2, 93; as threat to democracy, 3; in twentieth century, 27, 39–­41, 45–­46, 50–­51, 53, 55; in war on terrorism, 51–­ 53, 60–­61, 82–­83 Presidents: actions taken in bad faith, 143–­44, 164–­65; legacies, 172; oaths, 16; obedience to judicial orders, 144–­45, 170. See also individual names Prize Cases, 37–­38, 59 Prosecutors: in Hungary, 106, 107, 157; independence, 5, 136, 158; local, 28; in Poland, 96, 106, 108–­9; political control, 5, 84, 106–­9, 126–­28, 157–­59; removing, 127, 159–­60; temporary appointments, 158–­59; U.S. Attorneys, 127, 159–­60 Pruitt, Scott, 124 Public Company Accounting Oversight Board (PCAOB), 70, 86–­87 Public health, see Coronavirus pandemic Raines v. Byrd, 61–­62, 63, 66 Ratifiers, 12, 13, 22, 141. See also Founders; Original intent Reagan, Ronald, 11, 44, 123–­24 Referendum in Turkey, see Turkey, constitutional referendum. Regulation: deregulation efforts, 125; Office of Information and Regulatory Affairs, 123, 124. See also Independent agencies; Media regulation Rehnquist, William, 56–­57, 58, 68 Religious Freedom Restoration Act of 1983 (RFRA), 88 Removal power: Founders’ debates on, 16–­17, 18, 23–­24; Hitler’s use of, 49; in Hungary, 104, 106, 109, 115, 117; in Poland, 105, 112, 115, 116, 117; rule of law and, 5, 28, 32–­33, 43–­45; of Senate, 18, 20, 22, 23, 30, 34–­35, 42–­43, 46;

Index   231 Tenure of Office Act, 34, 35; in Turkey, 103, 107, 110, 116, 117, 119. See also Impeachment Removal power of presidents: abuses, 5, 27, 162; of administrative law judges, 114, 134; of attorneys general, 44, 136; for-­cause, 30, 40, 43–­45, 68–­69, 87, 134, 157, 160; Hamilton on, 16–­17, 18, 30; independent agencies and, 40, 43, 86–­87, 89–­90, 91, 156–­57; Jackson’s use of, 7, 32–­33; laws regulating, 38, 89–­90; Johnson’s use of, 7, 34; limits, 29, 30, 38, 44–­45; of military officers, 38; Nixon’s use of, 44 patronage and, 7, 30–­31; Supreme Court cases, 42–­43; as threat to democracy, 122–­23, 160, 161–­62; Trump’s use of, 124; unilateral (at-­will), 33, 42–­44, 46, 53, 89–­90, 91, 92–­93, 160, 161–­62; unitary executive theory and, 19, 23–­24, 45, 122, 159–­60. See also Seila Law LLC v. Consumer Financial Protection Bureau; Morrison v. Olson; Myers v. United States Republican Party: actions in legislatures, 131; as check on Trump, 146; gerrymandering, 129, 132; reconstruction policy, 34, 38; Senate filibuster rule and, 133 RFRA, see Religious Freedom Restoration Act Richardson, Elliott, 44 Rights, 14, 154–­55, 157, 162. See also Voting rights Ripeness doctrine, 54, 56, 58–­59, 62–­63, 69 Roberts, John, 64, 81, 87, 89 Roman Empire, 20 Roosevelt, Franklin D.: court-­packing plan, 133, 168; foreign policy powers, 74; Japanese American internments, 50; New Deal, 40, 41, 42, 133; removal power, 43; World War II and, 47 Rossiter, Clinton, 48

RTUK, see Supreme Council of Radio and Television Ruckelshaus, William, 44 Rule of law: civil service role, 5, 35, 100; congressional role, 159; in Constitution, 14–­15, 22; as constraint on Presidents, 14–­15, 138, 139; Declaration of Independence on, 14; decline in United States, 122–­29; in democracies, 100; implied powers doctrine and, 90–­ 94; maintaining, 28, 38–­39, 51, 100, 138, 139, 162–­63; oaths to protect Constitution, 16, 161; removal power and, 5, 28, 32–­33, 43–­45; restoration following Civil War, 38; separation of powers and, 24; undermining of, 62, 100–­101, 108–­9, 157; unitary executive theory and, 84, 122–­26, 127–­28, 136, 159–­61 Russell Car & Snow Plow Company, 46 Russia: elections, 98; interference in 2016 U.S. election, 1, 84, 124, 127, 128, 129–­30 Rzeplinski, Andrez, 108 Sabah-­ATV media group, 112 Sabri v. United States, 89 Sadurski, Wojciech, 113, 147, 193n88 Same-­sex marriages, 63–­64 Santos, Juan Manuel, 146 SBE, see Supreme Board of Elections Scalia, Antonin, 19, 24, 25, 45, 57, 64–­65, 144 Scheppele, Kim Lane, 97, 105 Schofield, John, 34 Second Circuit Court, 63 Security and Exchange Commission (SEC), 87, 134 Seila Law LLC v. Consumer Financial Protection Bureau: implications, 92, 143, 156–­57, 159; limits, 160; mistaken conclusions, 92–­93, 161, 162; need to overrule, 162, 174; unitary executive theory in, 45, 68–­69, 89–­90, 91, 136 Senate: approval of treaties, 18, 21, 57;

232

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confirmation of judges, 20, 44, 96–­97, 133, 168; confirmation of presidential nominees, 17–­19, 24–­25, 92, 123–­24, 158–­59; Constitutional structure, 20, 130; filibuster rule, 133; minority control, 130; potential cabal with President, 4, 22, 135, 136; powers, 17–­19; removal power, 20, 22, 23, 30, 34–­35, 42–­43, 46; roles in democracy erosion, 4, 136; Trump administration and, 149–­50. See also Congress Senior Executive Service, 125 Separation of powers: conflicts, 32, 67, 87, 169; in Constitution, 12, 17–­19, 21–­22, 154; in foreign affairs, 21–­22, 68; horizontal, 23, 91; in Hungary, 117; limits, 20; vertical, 23. See also Judicial review Separation of powers jurisprudence: abstract issues, 169; congressional encroachments on presidential power, 66–­70, 169; debates, 3; errors, 142–­43; favoring presidents, 90; foreign affairs issues, 56–­59; national security issues, 151, 155–­56 September 11 terrorist attacks, 51, 53, 82, 152, 153–­54 Sessions, Jeffrey, 124, 127 Shane, Peter, 3, 142 Shelby County v. Holder, 85, 88 Sierra Club, 66 Sitaraman, Ganesh, 72 Skowronek, Stephen, 30 Smith v. Albright, 148–­49, 150 Smyth v. Ames, 41 Social media, 129–­30, 131 South Africa, Constitutional Court, 146–­47 Special counsels, 25, 44, 45, 84, 94, 173 Spoils system, 31, 35 Standing doctrine, 54, 55–­56, 59–­61, 62, 63, 65, 66–­67, 70 Stanton, Edwin, 34 State courts, 132, 147. See also Judiciary

State legislatures, 62, 131, 132, 147 Steel mills, see Youngstown Sheet & Tube Co. v. Sawyer Sterling v. Constantin, 47, 166–­67 Story, Joseph, 5, 22, 43 Supreme Board of Elections (SBE), Turkey, 110 Supreme Council of Radio and Television (RTUK), Turkey, 111 Supreme Court, North Carolina, 132 Supreme Court, Pennsylvania, 132 Supreme Court, U.S.: appointments, 44, 96–­97, 114, 133, 168; on congressional delegations of authority, 40–­41, 47–­48; deference to Presidents, 164–­65, 167, 168; Due Process jurisprudence, 41, 46–­47, 163; gerrymandering cases, 129; interventions during Trump administration, 65–­66; Lochner era, 41; New Deal and, 133; on presidential powers, 1–­2, 37, 142–­43; on president’s removal power, 42–­43; roles in democracy erosion, 2, 129; size, 133, 168; supporters of unitary executive theory, 68–­69, 71, 89–­90, 94, 123, 136; voting rights cases, 148–­49. See also Constitutional interpretation; Implied powers doctrine; Judicial treatment of presidential power; Justiciability doctrines; Separation of powers jurisprudence Supreme Court, West Virginia, 132 Surveillance, 52, 60–­61, 154, 173 Systemic risks, 3, 141 Taft, William Howard, 42–­43 Taft-­Hartley Act, 74, 75 Taiwan, 56–­57 Taney, Roger B., 32, 33 Tenure of Office Act, 34, 35 Terrorism, see September 11 terrorist attacks; War on terrorism Terry v. Adams, 148 Texas Governor, 166

Index   233 Texas Railroad Commission, 47 Treasury Department, 23, 29, 32–­33 Treaties, 18, 21, 57, 81 Truman, Harry S., 48, 74, 76, 81 Trump, Donald J.: authoritarian tendencies, 2, 4, 9; border wall construction, 63, 66, 166; cabinet, 124; civil service and, 125–­26; deregulation efforts, 125; diverse views of, 1; efforts to tilt elections, 127–­28; election (2016), 1, 129–­30, 137; Erdoğan and, 103; executive orders, 125, 126, 145; false claims about 2020 election, 128; financial conflicts of interest, 62–­63, 84; firings, 124, 128; immigration policies, 66, 124, 145; impeachment (first), 127; judicial appointments, 133, 134; Mueller investigation and, 84, 94, 124, 128; Muslim travel bans, 72–­73, 145, 164, 167; obedience to judicial orders, 145; prosecutorial independence undermined by, 126, 127–­28; relations with media, 131; Republican Party and, 146; rule of law undermined by, 2, 124–­26, 127–­28; tax returns, 93 Trump v. Hawaii, 72–­73, 164, 167–­68 Trump v. Mazars, 93 Turkey: attacks on academic freedom, 103, 108; civil service, 103; Constitution, 114; constitutional amendments, 102–­3, 106, 116, 118–­19; Constitutional Court, 103, 108, 118–­19; constitutional referendum, 101, 102–­3, 110, 129–­30, 136; Council of State, 103, 114, 116, 119; democratic erosion, 102–­3; detentions, 103, 107–­8; elections, 99, 107, 110; emergency powers, 103, 116, 119, 151, 164, 165; judiciary, 100, 108, 113–­15, 116, 117, 118–­19, 134–­35, 165; Justice and Development Party (AKP), 102, 107, 110, 116, 118, 130, 136; media, 107–­8, 111–­12; Parliament, 116, 130; procurement policies, 112; prosecutors, 106–­8, 157. See also Erdoğan, Recep Tayyip

Turkish Journalists Association, 112 Tyler, John, 33–­34 Tyranny: Founders’ opposition, 12, 13, 14, 20, 21, 24, 25–­26; legislative, 12, 14, 20. See also Autocrats; Monarchy Ukraine, 127 Unfunded Mandates Act of 1995, 124 Unitary executive theory: arguments against, 17, 19, 160–­61; critics, 23, 123; evidence, 19–­20, 23–­24; implied powers and, 89–­90; investigations and, 173; judicial appointments and, 114, 134; judicial review and, 65, 71, 140, 163–­ 64; limits from political branches, 156; political dimension, 45, 160; removal power and, 19, 23–­24, 45, 122, 159–­60; repudiating, 171; rule of law erosion and, 84, 122–­26, 127–­28, 136, 159–­61; Scalia on, 19, 45, 65; supporters, 4–­5, 11, 19–­20, 23, 127–­28, 136; Supreme Court support, 68–­69, 71, 89–­90, 94, 123, 136; threat to democracy, 4–­5, 84, 95, 122–­24, 128, 131, 138, 174. See also Presidential power Uribe, Álvaro, 146 U.S. Attorneys, 127, 159–­60. See also Prosecutors Van Buren, Martin, 33 Venice Commission, 98, 115, 147 Vermeule, Adrian, 140, 142, 171, 200n107 Veto power: legislative, 67, 85, 92, 169; line-­item veto, 61–­62, 144; presidential, 20, 28, 32, 33–­34, 55, 169 Voting rights: of African Americans, 54, 147–­50; democratic erosion and, 99, 129; enforcement, 2, 85; Fifteenth Amendment, 88, 148; in Hungary, 110; legal limitations, 129, 147–­48. See also Elections Voting Rights Act of 1965, 85, 88, 148, 149 Wade, Benjamin, 34, 35

234

Index

Waring, J. Waties, 148 War on terrorism, 51–­53, 60–­61, 79, 82–­ 83, 143, 153–­56, 172 War power: congressional, 5–­6, 20–­21, 36–­37, 48, 59, 170–­7 1; restoring balance, 170–­7 1 War power of presidents: judicial reluctance to review, 55, 59–­60, 61, 169–­70; potential abuse, 81, 170; transfer from Congress, 6, 92; unilateral, 2, 36–­37, 51–­52, 81, 83, 135, 151, 170 War Powers Resolution, 59, 92 Wars: emergency powers, 37–­39, 46–­50, 135, 171; presidential decision making, 142. See also Foreign affairs; and specific wars Washington, George, 30, 35 Washington Post, 131 Watergate scandal, 43–­44, 86 Weber, Max, 100, 101–­2 Webster, Daniel, 43 Weimar Germany: Constitution, 48–­50; Parliament, 120

West Virginia: legislature, 132; Supreme Court, 132 West Virginia Court of Appeals, 132 Whaling Convention, 82 Whig Party, 33 Wilson, James, 21 Wilson, Woodrow, 46 Windsor, United States v., 63–­64 Wisconsin state courts, 147 World War I, 46–­47, 167 World War II, 47, 50, 74 Wuerth, Ingrid, 72 Youngstown Sheet & Tube Co. v. Sawyer, 48–­51, 73, 74–­76, 77, 78–­79, 81, 145, 151, 170 Yugoslavia, U.S. bombing, 59 Ziblatt, Daniel, 146 Ziobro, Zbigniew, 106 Zivotofsky v. Clinton, 68, 80 Zivotofsky v. Kerry, 80–­81, 86, 87, 188–­89n61

S TA N F O R D S T U D I E S I N L AW A N D P O L I T I C S

Edited by Keith J. Bybee

Jesse H. Rhodes, Ballot Blocked: The Political Erosion of the Voting Rights Act 2017 Wayne Batchis, The Right’s First Amendment: The Politics of Free Speech and the Return of Conservative Libertarianism 2016 Melinda Gann Hall, Attacking Judges: How Campaign Advertising Influences State Supreme Court Elections 2014 G. Alan Tarr, Without Fear or Favor: Judicial Independence and Judicial Accountability in the States 2012 Charles Gardner Geyh, editor, What’s Law Got to Do with It? What Judges Do, Why They Do It, and What’s at Stake 2011 Keith J. Bybee, editor, Bench Press: The Collision of Courts, Politics, and the Media 2007