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Is It Too Late to Recover the Founders’ Presidency?

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.

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.

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.”

Reader Discussion

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on June 16, 2020 at 09:26:51 am

Academic sniping about the presidency has produced a cottage industry of published scholarship, almost all of it critical of what the office has become and all of it modelled after Arthur Schlesinger Jr's partisan 1973 book, "The Imperial Presidency," written (according to Schlesinger) out of his alarm that the modern presidency was uncontrollable and unconstitutional. I suggest that with that particular problem in mind Schlesinger could easily have entitled his earlier three volume biography of FDR's presidency "The Imperial Presidency" rather than "The Age of Roosevelt" and made it a case study in uncontrollable political and constitutional abuse of Article II.

According to the essayist, however, law professor Prakesh's new book is different. It takes an originalist's look at the presidency, finds that the president (one may assume, particularly the current president) is behaving contrary to the Founders' original intention, and "offers a 13-part plan" for originalist constraint of the president.

In only one respect, this book appears to break new ground. With his "13-part plan" for originalist restoration of Article II, law professor Prakesh has created a novel genre, that of constitutional science fiction.

A "13-part plan" for an originalist Congress and yet another for an originalist Supreme Court would make for a trilogy of constitutional science fiction and, leather bound, a handsome addition to the unread libraries of the White House, Members of Congress and Supreme Court Justices.

I note that the book reviewer holds the Mitch McConnell Chair in Leadership. I also recommend that Professor Prakesh draft a special "13-part plan'' on how to get Leader McConnell to lead.

In this time of myriad national crises, I see no evidence of constitutionally-originalist, legally-bold or politically-useful thought and action from the senior Senator from Kentucky, from the Senate over which he presides or from the Republican Party which he guides. All the serious thinking and vigorous effort to "establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity" come not from the Congress and certainly not from the Supreme Court (the Congress does nothing, while SCOTUS continues to fail to correct its myriad prior grievous errors and adds to them routinely) but solely from the president, who stands alone confronting historic, bitter, partisan opposition and wages a relentless, now desperate, struggle to protect the nation's heritage and project the nation's greatness.

Under these constitutionally-existential circumstances, a "13-part plan" for action by the Republican Party, the Congress and the Supreme Court to help rather than obstruct the President would be a book worth reading.

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paladin
on June 16, 2020 at 10:15:34 am

Cultural Marxists are taking over the country, Democrat governors and mayors are intentionally destroying the economy with lock downs, deep state is conducting an ongoing coup d’etat, and the “Mitch McConnell Chair” is worried that the president is out of control? Especially bizarre because Obama was the worst when it comes to out-of-control presidency, and Trump’s actions have largely been about undoing Obama’s poisoning of the American system. Paladin is quite right about this stuff being fiction...absurdist fiction.

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C
on June 16, 2020 at 10:26:54 am

Well, Paladin, you beat me to it (East coast vs West Coast time and all that).
"13-Point plan"
Well, at least Prakash is somewhat more modest than Woodie Wilson's Fourteen Point Plan. Perhaps, having one less objective would increase the likelihood of success. Yeah!
Another dreamer from the academy - albeit an "originalist" dreamer. We, today, know just what an "originalist" can conjure up (see Bostock v Clayton) in pursuit of their own peculiar and particular vision of COTUS. One suspects that prakash will meet with all the success which greeted Woodie Wilson upon his return to the States after his 'triumphal" march through France.
"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!"

Brilliant!
Has Prakash NOT observed the Black Robes, at all levels imposing "nationwide injunctions" against an Executive who has acted well within his constitutional powers, or like woodie wilson is he, too, unable to see anything other than that which is predicted by his peculiar theories of governance / COTUS?
An Impeachemnt Agency? Is this something out of Monty Python; perhaps something akin to the Ministry of Silly Walks?
And best of all, his imagining of an *independent* Department of Justice.
Has Prakash read the papers, blogs, etc over the past three years? This president was AFFLICTED with an independent DOJ (and Nat'l Security apparatus), starting initially with Comey and other Obama holdovers, moderated only slightly by Christopher Wray. Only with the arrival of AG Barr can we say that this "vaunted and wished for" independence was finally subdued.
No, Prakash would appear to desire an Executive Branch at war with itself in order to minimize the perceived excesses of that Branch.
Let us never forget the roles of the Legislative AND (perhaps, especially) the Judicial. Think modern Commerce Clause (dormant, no more) of the Court. Think Legislative "delegation of legislative powers.
Yet Prakash wishes only to limit the Executive.
Well Prakash, if an impeachment department for the Executive, how about a Recall Agency for the Legislative and / or the Judicial?
How about, both the Legislative AND the Executive FINALLY assert their own role in interpreting (if not constructing) the Constitution? One could go on but why expend the energy on this Easter Basket of 13 eggs? which if left for even a short period of time for study will produce a malodorous effect.

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gabe
on June 16, 2020 at 14:11:48 pm

And I just had to sit through an apologetics exposition by a soi-disant conservative on a teleforum downplay the significance of the Bostock decision announced yesterday. He told his conservative teleforum audience that Gorsuch's opinion interpreting Congress' use of the word "sex" in Title VII of the 1964 Civil Rights Act to mean sexual orientation was a "principled" (but arguably wrong) application of "textualism." We were lectured, "you can be principled and wrong." To which I say that this is especially so if one applies the principle the wrong way, as did Gorsuch.

"Principled textualists" like Gorsuch would now have us unprincipled conservatives believe that "sex" is not a binary matter of biology but rather that use of the word "sex" in a law really means "sexual orientation." And that this is not a matter of SCOTUS rewriting a federal statute. HaHa!

It's too much to accept to swallow without choking.

Republicans are losing the war and don't even know it. They are like frogs in a pan of hot water which is about to become boiling.
There are way too many Alfred E. Newman's in the Republican Party. Indeed, the "What, me worry?" mentality makes up its majority.

So much for our vaunted originalists. Maybe the integralists are right after all.

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paladin
on June 18, 2020 at 02:33:18 am

There is a difference between biological sex and desire/inclination/ orientation. Biological sex refers to personhood, being, in essence, male or female, (a son or daughter, a brother or sister, a husband or wife, a father or mother ...), whereas desire/inclination/ orientation, is not a person but an urge to act or feel a certain way towards a person, place, or thing.

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Nancy
on June 16, 2020 at 21:48:54 pm

Prakash's scholarship I'm quite certainly is sound and to be respected, but he's gone off and made the same old mistake we've seen over and over again from all quarters by proposing reactionary measures to try to fix problems after the fact instead of addressing the root causes of problems. While I did not read the book discussed, I did read his March 3 statement to the House Rules committee (link at the end of this comment).

The first measure he proposes is that "Congress must bulk up." Representatives need more staff. Apparently government isn't big enough already. Is Congress really that wimpy and if it is, what makes it wimpy in the first place?

Next, "halt the delegation of legislative power to the executive." The executive branch would propose administrative rules, but Congress would have to approve them. Why is Congress delegating so much authority to the executive already? What is causing that to happen?

Next, "regulate delegations of emergency powers." Congress should only allow emergency declarations to last six weeks. Why are presidential emergency powers extended for so long now?

Next, "end executive privilege." I can image how badly a president would be tied up if Congress were able to make incessant demands for testimony and documentation. Take the circus they applied to Trump with their limited powers recently and multiply that by 1,000,000.

Next, "utilize bounty hunters." In other words, open the doors wider to lawsuits by the public against members of the executive branch who are caught doing illegal or unconstitutional things. Why are members of the executive getting away with misdeeds in the first place?

Last, "a resolute war powers resolution." So a president puts the military into harm's way, and then Congress cuts the military budget. Wtf, Prakash!?

While Prakash get kudos for stepping up and proposing change, each of his measures has the same fatal flaw we see over and over again. They are reactionary and they do not address root causes. He says "Because members of Congress are habituated to act like loyal party men and women, the best time for adopting any reforms is during the waning months of a presidential term but before a presidential election." The problem is that our system of government is a deeply entrenched two party system, not the timing of proposed legislation. Rather than recognize and address the root cause, he acknowledges the root, even calling it out, but then proposes measures that do not address it at all.

The structure and behaviors of government have a profound effect on its operation. When we can exercise only one vote for one candidate on a ballot, we get an entrenched two party system. To change that, switch to some kind of ranked voting--the two parties will quickly be disentrenched. To reduce the influence of outsiders on a democratic voting group--such as a senate--make voting more opaque: You can't strong arm or bribe someone if you can't verify that they did what you told them to do. There are lots these kinds of little things that produce profound changes in government because they are bound to the origins of the problems. The measures Prakash propose are reactionary measures that maybe feel good in the moment, but don't really change the system. They are more paper walls graffitied with rules, built on many older piles of paper walls graffitied with rules, built on even older piles of paper walls graffitied with rules--all put in place to address the problems caused by the many piles of old paper and graffiti.

Most problems of government can be solved with a simple operational change or two, but few people are willing to pursue those. (I would love to find a decent book that discusses the operations and consequences of the design of governments by the way.)

https://docs.house.gov/meetings/RU/RU00/20200303/110603/HHRG-116-RU00-Wstate-PrakashS-20200303.pdf

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Scott Amorian

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.