When Law and Liberty invited me to write on 10 things that a new president could do to promote the rule of law, I was struck by how counterintuitive the question was. After years upon years of debate over presidents pushing the boundaries of the constitutional powers (and not just during the most recent administration, as Philip Wallach stresses), it seemed rather novel to reflect upon ways in which the president himself might promote the rule of law through unilateral action—or, in some cases, unilateral cessation of previous unconstitutional action.
Needless to say, my list of ten suggestions was hardly intended to be exhaustive. Indeed, I neglected to include at least one important item on the list: the President should take more seriously the Justice Department’s Office of Legal Counsel, the executive branch’s in-house constitutional analysis bureau, whose traditions and expertise are hailed rightly as a significant tool for presidential self-restraint. Indeed, during the last Bush Administration some of the president’s critics in legal academia and the bar called loudly for a reinvigorated OLC. Of course, those calls quieted quickly when President Obama and Attorney General Holder began to sidestep and marginalize the OLC in the very first weeks of the Obama Administration. The next president should learn from this unfortunate bit of history, and take care not to repeat it.
Of course, one should not expect a president to take any self-limiting action simply by his own volition. Practical reason counsels against it—as does the wisdom of The Federalist, where Publius urges time and time again to count on institutional structure and checks and balances—not benevolence and self-restraint—to keep a president in check. President are not angels, after all; we must count on the ambition of other branches, and of the States, to counteract the president’s own ambition.
And in that respect, I hope that my first essay did not give the misimpression that (to borrow Philip Wallach’s line) I am “hoping against hope that the inhabitants of the office will be able to resist these pressures” toward expanding presidential power; I certainly do not expect presidents to “char[t] their own course on behalf of deeply held constitutional principle.” Rather, as Richard Epstein notes, President Obama showed “little willingness to accept [the rule of law’s requirements] as a powerful or useful constraint on his various powers.” Or, to borrow Philip’s more charitable characterization, “it’s very easy to see why an administration convinced of the righteousness of its own ends would view circumventing Congress as defensible in such a situation—as the only way to honor the pressing needs of the American people. And so it did.”
That mindset might have worried the founding generation, but what would have truly worried the founders is the possibility that other parts of government might lack the resolve to push back against the president with comparable vigor and institutional self-interest. For the president to have deeply-held constitutional principles is a good (and, in my opinion, indispensable) start, but ultimately we cannot expect a president to make good on any of our suggested reforms without significant pressure by the Congress, the judiciary, the States, and the people themselves.
As I wrote at the end of my first essay, “the job falls first and foremost to Congress . . . to direct the nation’s political energy toward demanding these sorts of reforms.” Perhaps I should have quoted the much more eloquent exhortation of Justice Robert Jackson, whose closing lines in the Steel Seizure Case urged that “only Congress itself can prevent power from slipping through its fingers.” We can hope that a president will take these and other salutary actions, but what we really need is for Congress to use its oversight powers, the power of the purse, the appointment-confirmation power, and its pulpit to push and pull the President in the right direction—not just through threats, but also through enticements and negotiated compromises.
Of course, this is easier in theory than in practice. As Philip notes, political parties complicate the simple President-versus-Congress dynamic, since a president’s fellow party members in Congress happily accept “the role of subordinate copartisan handmaiden,” undermining their fealty to their own branch and thus undermining Congress’s ability or willingness to push back against the president. James Madison stressed in Federalist 51 that if constitutional checks and balances are to work, then “[t]he interest of the man must be connected with the constitutional rights of the place”—and the “place” he had in mind was the congressman’s seat in Congress, not his seat around the table in his political party’s headquarters. This point is now so obvious that even law professors write about it, including a terrific article by Daryl Levinson and Richard Pildes, who in 2006 called for the “separation of parties, not powers.” (But Richard Epstein did them one better in reply, explaining “why parties and powers both matter.”)
Given this political dynamic, is reform hopeless? Richard says that “[i]t is very difficult to take issue with” my “pessimistic tone.” But Philip compliments my “happy mindset.” (Evidently my essay is Whitmanesque—it contains multitudes.) In any event, because my original essay’s ten items were rather scattershot, and thus Philip, Richard, and Brian Mannix each took matters in usefully diverse directions, I hope readers will forgive my own scattershot replies to some of their points in turn:
Were Obama’s excesses simply continuations of Bush’s?
As I mentioned at in my original essay and the outset of this reply, debates over presidential excess hardly started after January 20, 2009. During the Bush Administration, various partisans’ roles were often (though not always) reversed, with Republicans and conservatives generally defending assertions of executive power, and Democrats and progressives generally denouncing them. It’s not hard to play the game where you point out the Bush-to-Obama flip-flops of an ideological sparring partner.
So was it wrong of me to suggest that President Obama’s assertions of unilateral power are in a class of their own? Philip certainly thinks so, arguing that “this view looks significantly incomplete, and probably misleading.” Ouch.
But on reflection I stand by my original point. At some point, President Obama’s unprecedented assertions of power went beyond simply a difference in magnitude, and became a more profound break with history. From declaring a policy of broad nonenforcement of immigration laws (which the president himself had said repeatedly would exceed his constitutional power), to relying upon tortured interpretations of longstanding statutes to allow for unprecedented regimes of regulation for the Internet or energy markets, to gratuitously targeting religious organizations and attempting to force them to subsidize abortifacient contraceptives, to (as I noted in my first essay) pursuing a general policy of government-by-waiver, I do think that this president represents a stark contrast to his modern predecessors. True, executive power has long been on the rise, but under the Obama Administration the curve came to resemble Al Gore’s hockey stick.
Coherence in the Executive
Brian Mannix counsels wisely that the modern executive requires not just “energy” (per Hamilton) but also “coherence”—to wit, “an administrative consistency, not just across time and place, but also across hundreds of regulatory programs busily pursuing inconsistent aims.” I could not possible agree more; indeed, that was one of the reasons why my first essay argues in favor of bulking up the Office of Information and Regulatory Affairs and subjecting “independent agencies” to OIRA review. OIRA ensures not just that an agency’s rules pass cost-benefit muster, but also that an agency’s rules are scrutinized by (and responsive to) the concerns of other agencies. If an administration is to have coherence, then OIRA will be indispensable.
For that reason, I do think that independent agencies should be brought within OIRA’s jurisdiction. I agree with Richard that this is a point on which reasonable minds can disagree, and there are good reasons to keep independent agencies outside of the White House’s reach. But in the end, I think that administrative “coherence” is worth its costs.
But for precisely that reason, I would urge Brian not to downplay OIRA’s open-door policy, through which a presidential dministration should obtain (in Brian’s skeptical words) “more robust public input.” As an administration attempts to achieve coherence among its myriad agencies’ regulatory programs, it should hear directly from the public—not just through the filter of an agency’s notice-and-comment process, but also through the meetings the OIRA conducts regularly with interested members of the public. OIRA’s open-door policy may not always be an open-ears policy, but even perfunctory meetings with the public are a useful exercise, for the sake of the process.
As the Supreme Court urged repeatedly in cases like Chevron and State Farm, an administration’s policy discretion is legitimated not just by the agencies’ technocratic expertise, but also their political accountability. “It is readily apparent that the responsible members of one administration may consider public resistance and uncertainties to be more important than do their counterparts in a previous administration,” the Court observed in State Farm. “A change in administration brought about by the people casting their votes is a perfectly reasonable basis for an executive agency’s reappraisal of the costs and benefits of its programs and regulations. As long as the agency remains within the bounds established by Congress, it is entitled to assess administrative records and evaluate priorities in light of the philosophy of the administration.”
To that end, OIRA’s doors (and ears) should remain open to the public. It is troubling—though not surprising—to hear that some progressives are now calling upon the next president to “dismantle” the current OIRA framework, as former EPA official Lisa Heinzerling does in a new paper for the American Constitution Society, titled “Protecting the Environment by Loosening Presidential Control.”
Is a Worst-Case Scenario Our Best-Case Scenario?
Steve Hayward recently suggested that the surprising degree of support for Donald Trump among Claremont conservatives is best explained by their belief that radical disruption of our current regime is the only possible means by which we might reform the administrative state. Philip is no West Coast Straussian (or, if he is, he’s very subtle about it). But he seems to share the same basic diagnosis: our only hope for reform is for the President to “become an unwitting agent of the rule of law and a rebalancing of constitutional power” by going so far overboard that Congress responds with impeachment. As Rahm Emanuel said, “[y]ou never want a serious crisis to go to waste.” But for that, you first need a good crisis!
Given that Philip literally wrote the book on crisis, this argument was not completely surprising. And there’s more than a kernel of truth to it: after the Civil War, the Republicans impeached President Andrew Johnson because (in part) he removed from his cabinet a beloved veteran of the Lincoln Administration. After Johnson’s impeachment, the presidency was much less powerful—as it was after Nixon’s resignation.
Could another political crisis give rise to another reformation? Maybe. Then again, crises tend to reflect more passion than reason, and so I doubt that even the best-intentioned Congress would heed Philip’s advice and “define the conflict in such a way as to implicate important conflict.” (As it happens, I saw this firsthand during the Clinton impeachment trial, when I happened to be—astonishingly—an intern in President Clinton’s West Wing throughout the impeachment trial and the months that followed.)
I suspect that the path to reform will be much more mundane. The party that loses the upcoming presidential election will need to continue to press steadily for reform throughout the next four years—by passing reform legislation (again), by using confirmation hearings and oversight hearing as an opportunity to spell out an affirmative agenda for administration, by wielding the power of the purse effectively and efficiently, and ultimately by making systematic administrative reform a core issue of the presidential election cycle. And if, four years from now, the out-of-power party manages to become the back-in-power party, then perhaps Congress will prevail upon its co-partisan in the White House to follow through on a campaign commitment to sign reform legislation into law.