Can Matthew Whitaker be named as Acting Attorney General when the Attorney General can only be appointed with the advice and consent of the Senate?
It has only been a few weeks since the President of the United States declared that he had the “total authority” to reopen state economies, and that governors would follow his orders. One would have to search diligently to find a more constitutionally lopsided assertion of power by an American chief executive. While that statement was a stretch, however, it was not an aberration.
The president declares he has authority over the economy and the outcry begins. The president does not assert emergency authority and the complaints come. The president says we live in a federalist system and that the states should take the lead; he is decried for his lack of leadership and failure to have a nationalized policy. The president declares emergency powers over “essential businesses” (like food processing plants); he is denounced as a would-be dictator.
A pandemic makes a fine time to fight about presidential power. But the debate we are having now over the role of the presidency in American public life is no different than it is during “normal” times. Allies of the president have generally supported his assertions of power; the other party has challenged them. His enemies have decried the president’s use of power as well as his failure to act. His allies praise his strong leadership as well as his restraint.
So it has gone throughout American history. Presidents assert power and their political allies support them while their enemies offer mostly feckless objections. Partisans easily switch constitutional sides when a new president from a different party is installed. Where they once advocated for maximum presidential power, they now recover the congressional virtues. Through it all, the presidency ratchets up in size and arbitrary power over time.
Into this history of political partisanship, Saikrishna Bangalore Prakash has thrown his The Living Presidency: An Originalist Argument Against Its Ever-Expanding Powers. And it couldn’t come at a better time. Because of the serious institutional partisanship that oscillates with the party affiliation of the White House occupant, books by originalists—who are usually associated with conservatism and the Republican party—are never more needed than when a Republican is in the Oval Office.
Fruits of the “Living Constitution”
Prakash’s book is well-written, well-researched, and dead-on in walking the reader through the history of the American presidency. He demonstrates how the office has grown from its origins as a humble executor of the law and protector of the Constitution to a maker of law and an amender of the Constitution. Where others have tended to focus on one challenge—perhaps Congress delegates too much or the nature of war has changed—Prakash does well to show the problem of the presidency is just a conspicuous part of a complex system of incentives, inputs, structural relationships, and policy commitments that are built into our current political system.
That system emanates from a general ideological commitment to a “living Constitution,” which is Prakash’s overall point. Here he is creative and right to pull our debates about originalism and a living Constitution out of the strict domain of the courts and from his fellow law professors who seem to have a near-monopoly on the topic. Well beyond the purview of the courts, we have a Constitution that has slipped far from our founders’ vision, largely without actual formal constitutional amendments. Congresses have usurped powers originally reserved to the states. Courts have handcuffed the states with constitutional provisions meant to bind only the federal government. The states have willingly taken federal largesse in exchange for their compliance. And presidents have pushed the bounds of their powers, sometimes citing emergencies and sometimes stretching the words of our foundational law. In the end, the American people have watched it happen and allowed our political class to amend the operation of the Constitution without amending the Constitution itself.
We live, Prakash demonstrates, in a constitutional order that is far removed from our constitutional design, and in such a living Constitution, the presidency is best situated to grow and achieve the ambitions of the office-holders. The office is singular and can therefore act with dispatch and be rewarded for such bold action. Our campaigns force presidents to run on promises they will seek to fulfill when in office. Presidential rankings and our reverence for past presidents drive presidential efforts to be perceived as heroes and to achieve fame.
Interest groups and party bases pressure presidents to act unilaterally to fulfill their agendas. Congressional partisans often seem more attached to their political party (and reelection) than to their institution, and they support the most egregious expressions of presidential power—at least when their guy holds the office. Through it all, Congress keeps growing the executive bureaucracy, keeps paying for White House lawyers who seek loopholes and novel interpretations to expand their boss’s power, and keeps passing vague laws that empower the president and the bureaucracy to enact them according to their own policy discretion.
We arrive at a “living presidency within a living Constitution,” as the author puts it. Presidents wage war around the globe with impunity. Presidents take unilateral action on trade that fundamentally disrupts the American economy with no institutional resistance. Presidents declare emergencies and open or shutter private businesses at their discretion. Presidents offer signing statements that change the meaning of laws passed by Congress. It is not simply a “living presidency.” It is a thriving, growing being that not only evolves over time but changes the rules for its expansion simply by taking an action and getting away with it.
The most troubling aspect of the book is that it gives the reader a renewed conviction that we have largely lost the American Constitution of our founding. Such pessimism is not his intent, but Prakash makes a convincing case that the presidency is not close to the institution envisioned by our founders and neither is Congress; nor is the Supreme Court; nor is our federal system. If none of our core political institutions are tightly moored to the constitutional dock, one is tempted to wonder how much we really have to preserve. We might also ask whether a restoration is even possible at this late stage.
A Way Forward?
Nevertheless, Prakash is not pessimistic. He offers a serious plan for the restoration of something closer to the original intent of the presidency and its relationship to our other political institutions. He offers a 13-part plan that includes making presidential advisors subject to Senate approval, growing Congress’s own expert staff, shrinking the offices in the executive branch that have done most to lead to executive augmentation (mostly the lawyers!), reining in executive privilege, and deputizing private citizens as whistleblowers with standing to sue. We can’t discuss all of his proposals in detail, but we can highlight a few of particular interest.
Prakash argues for a new War Powers Act to bring the presidential dogs of war to heel. Perhaps nowhere has presidential power grown further beyond the bounds of constitutional restraint than in the realm of war and peace. Our founders never envisioned a world where a president could kill foreign leaders, bomb foreign property, spend our treasure, and spill our young blood at his own discretion. They were not to “consult” Congress before acting, as our feckless current War Powers Act requests; Congress is to make the decisions. To paraphrase Alexander Hamilton in The Federalist Papers, there is nothing in human history that would suggest that it is safe to empower someone like an American president with unilateral authority over war and peace.
Prakash’s answer, however, seems fraught with danger. He suggests that if a president attacked a foreign power without congressional authorization, an immediate 75 percent cut to the military budget would follow. Can you imagine the disruption to military families that would result? Or, even worse, can you imagine the damage that could be done by an agent of foreign influence around the president or a president who himself comes under foreign pressure? Instead, how about an immediate cut to the White House staff or perhaps a cut targeting the president’s legal team?
Since we are in a new “emergency” period—declared, once again, by the president and not by our representatives in Congress—it should be pointed out that Prakash argues for a sunset provision for all emergency powers. It would be shocking to most Americans to realize the immense power Congress has ceded to our executives, and all they have to do is declare an “emergency” to exercise them. This is how President Trump, against explicit decisions by our representatives in Congress, is building a wall on the southern border with money taken from other funded initiatives. When will that emergency end? Only the president will determine that. We have executive-declared “emergencies” that have gone on for more than a decade without most of us realizing there was an emergency at all. Prakash proposes a mandatory six-week expiration of any such declaration after Congress is able to meet to determine if it should continue. This is a fine proposal for restoring some semblance of meaning to the word “emergency.”
The nation just went through a presidential impeachment for the third time in American history. As most of us knew from the beginning, nothing much of substance happened. But the process allowed the incumbent to claim some exoneration for being acquitted by his party in the Senate. If the House had serious constitutional issues with the behavior of President Trump, they could have saved the nation a lot of money and time and passed a censure of him instead. As Prakash might have told them, they could have articulated a constitutional case for proper executive behavior and harmed the incumbent’s standing in the history books in a way that might have proved dissuasive to his successors. I agree with Prakash that it is time for the legislature to bring back motions of censure as a tool to dissuade presidential misbehavior and to teach the American people the proper bounds of executive authority.
He also advocates for the Courts to become more willing to challenge presidential exertions of extra-constitutional power and offers three more radical adaptations that he realizes may be constitutionally dubious: an impeachment agency, the delegation of budget and regulatory authority away from the president, and the creation of a more “plural” executive with independent agencies. Imagine, for just a moment, today’s Justice Department as an independent agency!
Prakash has produced a very well-written and reasoned account that should garner the attention of all those who claim to support and defend the Constitution. He puts the presidency within the broader parameters of culture and political institutions—something that many books on the presidency fail to do. And he does it all in an easy-to-read and accessible volume.
In the end, as Alexander Hamilton articulated in Federalist #84, the security of any of our constitutional provisions “must altogether depend on public opinion, and on the general spirit of the people and the government.” The fate of Prakash’s proposals for reform will ultimately be decided by the American people and the political leaders that represent us. Do we want a presidency that aligns with our founding vision? Are we willing to stand up to presidents of our own party? Are we willing to support members of Congress who challenge “our” presidents on constitutional grounds? Are we willing to give up temporary policy gains in favor of long-term constitutional fidelity? Are we really willing to give up the “living presidency” if it means we sometimes lose the daily political battles and fail to achieve our policy goals? It really is up to “we the people.”