He, the People

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A legal scholar warns of presidential power-mongering and calls for a national Day of Deliberation.

Bruce Ackerman, the legal scholar and Yale Law professor, is worried. What is keeping him up nights? According to his new book, The Decline and Fall of the American Republic, it is a fear of the over-powerful Executive.

Ackerman makes much of the idea, in his work, that while the framers of the Constitution were correct that the Judiciary is the “least dangerous branch” of government, they were ultimately wrong about where the real power lies. Ackerman makes much of the fact that the Legislature was thought, by Alexander Hamilton at least, to wield the most power in the young Republic, and therefore the framers put the most checks on the power of Congress—a bicameral legislature, for example, which makes it notoriously more difficult to pass legislation than it is in most other countries. The power of the Executive was left (comparatively, at least) to its own devices. Ackerman posits that the reasoning behind this was that an out-of-control Executive could easily be reigned in by Congress or the courts.

To which a 21st century observer might respond: Ha ha.

It does not take a scholarly, heavily footnoted book such as Ackerman’s to recognize that the strongest branch of government today is the one that makes its home in the White House. Ackerman argues that, while what he terms the “extremist presidency” is a relatively new phenomenon, it is one that has been a long time coming. The first two-thirds of the book chronicle the rise of the Executive; in the final section he develops methods he believes can keep the Executive in check.

Bruce Ackerman

Ackerman’s strongest points lie in his description of the U.S. presidency itself. It will surprise few readers to learn that the Executive’s power was expanded greatly after the terrorist attacks of September 11, 2001—there was both a huge push by President Bush and a public consensus that more power should be consolidated in the Executive branch. The public consensus waned, Ackerman argues, but the Executive power-grab continued undiminished throughout the Bush years, with some of the President’s lawyers believing that he could do just about anything. (Ackerman cites John Yoo’s now infamous torture memos as an example.)

Of course, presidential power grabs are just about as American as apple pie, going back at least as far as John Adams, who shepherded through Congress and signed into law the Alien and Sedition Acts, written to quell dissent. Andrew Jackson, perhaps the most famous pre-modern presidential power-grabber, has been quoted as saying of a Supreme Court decision, and a Chief Justice, he disliked, “John Marshall has made his decision; now let him enforce it!”

While executive infringement on the other branches of Congress has been with us for some time, Ackerman makes a powerful case that the Executive’s reach has expanded by leaps and bounds over the last half century, due to factors internal and external to the presidency itself.

Ackerman is most persuasive when showing how the Executive has made the best of some inside-the-beltway arcana. The Executive has streamlined its legal counsel over the last seventy years, so that now the president’s lawyers “have become an institutional force.” The very idea of the White House Counsel goes back only as far as Franklin Delano Roosevelt; Roosevelt’s counsel was in reality simply a “speechwriter and political advisor,” not the personal lawyer to the President that the Counsel is today considered to be. It was President Nixon, Ackerman shows, who developed the idea of an internal White House lawyer. Now, the White House Counsel’s office is composed of dozens of our nation’s ablest legal minds. In and of itself, this is not a bad thing, but Ackerman argues that the White House Counsel—as opposed to, say, the Attorney General of the United States or the Office of Legal Counsel at the Department of Justice—is less able to be an impartial arbitrator in Executive disputes, as these attorneys are appointed directly by the President and work virtually yards away from their boss.

Ackerman is less persuasive in his chapters about the modern military. Maybe I’m a sunny optimist but, despite disturbing recent trends such as President Obama’s scuffle with General McChrystal, I don’t see a military coup looming on the horizon. Ackerman is undoubtedly correct that with the end of the draft and the professionalization of the military, the armed forces have become more politicized—and specifically more Republican. At the same time, the United States is not modern Turkey or ancient Rome, where military leaders step in when they perceive all is not well. Just as our country has a long history of Executive power grabs, we also have a long, proud tradition of a civilian-led military.

John Yoo

By this standard, the McChrystal situation actually signified something positive. McChrystal was by almost all accounts a great military leader, who was doing a fine job in Afghanistan before his ill-conceived remarks to a Rolling Stone reporter. Yet when ordered to stand down by the civilian Commander In Chief, he obeyed without hesitation. Indeed, the threat of insurrection by McChrystal or any other general seems so remote that no one even commented when it didn’t happen. Yet Ackerman believes that in a future scenario akin to 2000’s Bush v. Gore election struggle, an overzealous military could take the place of an ambitious Supreme Court and force their man into office.

The last portion of Ackerman’s book, where he attempts to offer solutions, is both a daringly creative venture and an exercise in futility—often simultaneously. Ackerman believes the power-grabbing Executive can be tamed by extra-Constitutional means. My favorite suggestion, although perhaps the least workable one is something he calls “Deliberation Day.” A concept he co-invented with Jim Fishkin, about which Ackerman has written a previous book, “proposes a new national holiday held two weeks before presidential elections” in order to defeat the sound-bite media coverage that has come to dominate presidential campaigns. “Registered voters will be called to neighborhood meeting places to discuss the central issues raised by the campaign. Nobody would be forced to attend. But if tens of millions of citizens took up the invitation, it would radically change incentives for political professionals.”

To which a twenty-first century observer might respond: Ha ha.

The idea is a good one, but in practice it’s hard to see it as anything other than a huge mess. For one thing, while Ackerman hopes Deliberation Day would lead to civil discourse among people with radically divergent political views, he ignores the fact that most people live around politically like-minded people. For example, I don’t think Deliberation Day in my Upper Manhattan neighborhood would veer very far from the center-left, even if a cross-section of the neighborhood were persuaded to attend. For the same reason most Congressional districts are safe for their incumbents, Deliberation Day would most often be more of a pep rally than a serious debate.

Second, the costs of Deliberation Day would be enormous. Even Ackerman recognizes this. “Fishkin and I estimate,” he writes, “that it would cost about $2 billion to run a Deliberation Day for 50 million voters.” Well, there are over 200 million Americans eligible to vote, which raises the prospective cost to $8 billion—and that’s not even counting money lost by businesses and individuals for lost work time.

Still, while some of Ackerman’s solutions may be practically unworkable, the questions he raises regarding the threat of the American Executive to the republic are daunting. This fascinating book does an admirable job of laying them out.


Bezalel Stern is a writer and lawyer who lives in New York City. He is currently working on his first novel. Read more at bezalelstern.tumblr.com. More from this author →