Mashaw and Berke on Presidentialism Versus Pluralism: The Missing Epilogue to Madison’s Nightmare, by Peter M. Shane

by Guest Blogger — Monday, July 30, 2018

shane.29The University of Chicago Press surprised me in 2015 with the happy news that they intended to bring out in paperback my 2009 book, Madison’s Nightmare: How Executive Power Threatens American Democracy. A less happy surprise was the press’s lack of interest in my providing an epilogue that would bring the analysis forward through seven years of the Obama Administration. I honestly cannot account for the marketing judgment involved. But as it happens, the Yale Journal on Regulation, in its Spring 2018 issue, includes an article by Jerry L. Mashaw and David Berke that superbly covers much of my intended territory and more.

The Mashaw and Berke article, Presidential Administration in a Regime of Separated Powers: An Analysis of Recent American Experience, examines three areas of executive branch policymaking—immigration, climate change, and regulatory process—that have been hot under both Barack Obama and Donald Trump. They plumb these areas to shed light on two major debates about presidential administration. The authors describe one of these debates as chiefly descriptive. It concerns whether our constitutional separation of powers operates as a significant check on presidential administration when the same party controls both the executive and legislative branches. Mashaw and Berke contrast the largely negative verdict of Professors Daryl Levinson and Richard Pildes with a more qualified judgment they appear to endorse from the Australian comparativist Peter Cane. Intensified party polarization is directly related to the accelerating expansion of executive power that is the focus of Madison’s Nightmare, but I will leave it to others to evaluate this portion of the Mashaw-Berke study.

The second debate, which Mashaw and Berke note is importantly normative, involves “the actual or appropriate extent of presidential power to control administrative action.” I could hardly be more grateful for the authors’ flattering framing of that debate, contrasting, as they put it, “two leading accounts: Justice, then Professor, Elena Kagan’s account of presidentialism and Professor Peter Shane’s argument for pluralism.” (I have rarely admired an article with which I have so thoroughly disagreed as I do Kagan’s Presidential Administration, and I am pleased to be her foil.) I am also delighted that, at least according my own presumably biased reading, Mashaw and Berke award the pluralist view an overall win, albeit on points rather than a knockout.

To frame my reaction to the Mashaw-Berke assessment, however, it may be helpful to clarify that the “presidentialism” I attacked in Madison’s Nightmare is not just what Mashaw and Berke call “muscular presidential administration,” or energetic presidencies in general. I specifically defined presidentialism for purposes of my analysis as “a theory of government and a pattern of government practice that treat our Constitution as vesting in the President a fixed and expansive category of executive authority largely immune to legislative control or judicial review.” My targets, in other words, are presidentialists of the “unitary executive” school, who “interpret the constitutional design as creating a largely autonomous executive branch, in which the President enjoys a robust range of inherent authorities, both foreign and domestic, which are beyond the power of Congress to regulate or the authority of the courts to review.” The normative thrust of Madison’s Nightmare is thus not an argument against an activist presidency, but rather a warning against presidents who deploy unitary executive theory to legitimate norms of executive entitlement and hostility to external accountability.

In my view, unitary executive theory is not just wrong; it is dangerous. Mashaw and Berke are generous enough to quote in full a key passage of Madison’s Nightmare in which I summarize how I believe unitary executive theory corrupts administrative practice:

[L]ooking at the unilateral presidency in action shows us that the growth of executive power is all too likely to produce dysfunctional government, no matter which party is in control. Adopted as an ethos of government, aggressive presidentialism breeds an insularity, defensiveness, and even arrogance within the executive branch that undermines sound decision making, discounts the rule of law, and attenuates the role of authentic deliberation in shaping political outcomes.

In short, it is critical to my account that, “Presidentialism operates not just as a constitutional philosophy, but also as an ethos, a fundamental element of the spirit with which the government conducts business.”

For her part, Justice Kagan does not appear to disagree with me on the theoretical question of constitutional design. Her Presidential Administration makes an elaborate practical argument for presidential muscularity vis-à-vis regulatory policy making. She is enthusiastic about the prospect of a president taking public “ownership” of his or her Administration’s administrative initiatives. But as a legal matter, Kagan acknowledges Congress’s authority to cabin presidential administrative control. She is not advancing a radically pro-executive Article II. She asserts only that the pragmatic case for strong presidential involvement in administration is compelling enough to warrant a presumption, absent clear statutory indications to the contrary, that the presidential direction of administration is congressionally authorized. That’s where we disagree.

From their study of three policy areas under Presidents Obama and Trump, Mashaw and Berke see my views vindicated in several respects. They see in Trump’s issuance of the first travel ban the dangers I flagged of executive branch lawyering becoming empty and formalistic. They see how the culture of secrecy I discerned in the George W. Bush Administration reappears as a feature of administration under Donald Trump. The authors acknowledge my point, contra Kagan, that a president’s “ownership” of his Administration’s regulatory policies “does not always translate straightforwardly into electoral accountability.” And they find that presidential initiative under both Obama and Trump accords with my description of executive power as a “one-way ratchet” that turns only in the direction of expansion, even under presidents like Obama, who eschew unitary executive theory as a formal matter. In large part, this is because congressional acquiescence born either of partisan solidarity—see Levinson and Pildes—or outright dysfunction invites and helps to legitimate executive expansionism.

Had I written the epilogue to Madison’s Nightmare myself, I would not have conceded one point that Mashaw and Berke appear to award at least partially to Kagan. They accept her point that “appropriation promotes transparency,” in the sense that presidential claims of personal responsibility for “instigat[ing] . . . policy changes or initiatives certainly enhance[] media coverage and, therefore, public understanding of what the government’s policies [are].” I strongly suspect this is wrong.

As Mashaw and Berke acknowledge, “At the macro level, American voters can hardly be confused concerning the differences in Obama Administration and Trump Administration policies with respect to environmental, energy, and immigration matters.” This clarity would surely exist whether or not Obama or Trump claimed that regulatory policymaking was within their prerogative or even at their instigation. I doubt any American voter was surprised by the direction of administrative policy change from Bush to Obama or from Obama to Trump.

By way of contrast, I equally doubt whether the increased media coverage that presidential involvement has elicited for immigration, climate change policy, or health care, for example, has increased public understanding to any measurable extent at the level of policy detail. I would be surprised if significantly more Americans actually know now how “refugees” are vetted, the particulars of the Obama Clean Power Plan, or the definition of the Affordable Care Act’s risk corridor program.

On the contrary, I think both Obama and Trump have largely confused the public by “appropriating policy positions [as their own] that must be carried out by agencies and departments that in fact have the statutory authority to act.” Both presidents’ claims of unilateral initiative tended to mislead the public as to the locus of administrative authority and to exaggerate the presidents’ capacity to be impactful unilaterally. Even some journalists were confused as to whether Obama created DACA and DAPA through an executive order. (He didn’t.) This is no accident. Presidents lay claim to agency policy making in order to generate the aura of presidential achievement, whether or not the president has accomplished anything. Donald Trump has arguably developed this form of misdirection as an art form.

The “pluralism” for which I argue in Madison’s Nightmare is intended in part to combat just this misunderstanding. It is an argument that the scope of presidential power in peacetime administration rests almost entirely on authority granted by Congress, that Congress’s designation of administrative decision makers other than the President should be respected and acknowledged by presidents, and that the President, to use Peter Strauss’s formulation, is better characterized as the executive “overseer,” not “decider.” And as I describe it, “Pluralism is also an ethos. When operationalized by the executive branch, it emphasizes the importance of listening to multiple voices in determining how policy should get made and how law should be interpreted.” “I alone can fix it,” to quote a presidential candidate’s audacious claim, is the antithesis of this ethos.

What I called pluralism in Madison’s Nightmare strikes me as just the sort of “presidentialism” that Mashaw and Berke would advocate, namely:

[p]residentialism that takes account of process and participatory values; is transparent and robust concerning sources, science, and data consulted or relied upon; that provides justificatory reasoning that connects policies to statutory missions and criteria; and that respects legislative prerogatives and the embedded information advantages of line agencies . . . .

Had I written my own epilogue to Madison’s Nightmare, I would have urged that presidentialism of this inclusionary, deliberative, and democracy-reinforcing kind could never emerge in an administration enthralled by unitary executive theory.

With not only the Obama record, but also the Trump Administration providing their data, Mashaw and Berke readily perceive an additional danger of presidential unilateralism that I had not fully acknowledged in 2009: Presidential unilateralism as a basis for national policy risks a degree of policy instability that hurts both planning at home and U.S. credibility abroad. One executive order can undo another. An international agreement resting on handshakes can be abandoned. Even though elections are supposed to have consequences, a rapid succession of cyclical disruptions can weaken our international stature and make life harder for regulated parties.

In sum, and perhaps unsurprisingly, I am grateful to Mashaw and Berke for using recent episodes in presidential administration to illuminate themes that both Justice Kagan and I tried to address some years ago. For my part, as loud an alarm as I hoped to sound in Madison’s Nightmare, I did not foresee the election following Obama of a self-obsessed successor combining an embrace of unitary executive theory with a cult-of-personality approach to leadership that tends so strikingly towards authoritarianism. I am now yet more alarmed. Justice Kagan may yet have more influence than any of us on the future of presidentialism as an operational theory of government. I hope that developments since her writing, along with the measured judgments of Mashaw and Berke, might lead her to a more pluralist position.

 

Peter M. Shane is the Jacob E. Davis and Jacob E. Davis II Chair in Law at The Ohio State University Moritz College of Law. Follow him on Twitter: @petermshane.

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