An excerpt from

Madison’s Nightmare

How Executive Power Threatens American Democracy

Peter M. Shane

Madison’s Nightmare: How the Federal Government Became Unchecked and Unbalanced

When the Constitutional Convention adjourned in September, 1787, James Madison made a fateful choice. He resumed his place in the Congress, still sitting in New York City, rather than returning immediately to his life and home in Virginia. In New York, Alexander Hamilton asked for Madison’s help in penning a series of anonymous essays intended to persuade the New York ratifying convention to vote affirmatively on their Philadelphia handiwork. Madison was Hamilton’s fourth choice of a collaborator, one New York luminary having turned him down, another having proven inadequate to the task, and one—John Jay—falling ill. Madison joined in the project eagerly, however, even asking George Washington to help arrange for reprinting the texts in Virginia.

November 22, 1787 marked the publication of Madison’s first contribution. As Publius—the identity assumed jointly by Hamilton, Jay, and himself—Madison began his essay, Federalist No. 10, by identifying the issue perhaps closest to his heart. “Among the numerous advantages promised by a well constructed union,” he wrote, “none deserves to be more accurately developed than its tendency to break and control the violence of faction.” He was specific in his definition of faction: “By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.” Factionalism, in Madison’s view, was thus not a matter of numbers, but of motivation and orientation. A majority or a minority would be a faction whenever animated by considerations of passion or self-interest above genuine public concern.

Faction was not a new theme for Madison. He foreshadowed his views in an April 1787 enumeration that he prepared of the “Vices of the Political System of the United States.” Gearing up intellectually for the Philadelphia deliberations that would commence a month hence, he argued that “the great desideratum in Government” was the control of faction. The challenge before America was to create institutions strong enough to mediate effectively among society’s competing interests and achieve the public interest for all without unleashing the prospect that new structures would themselves tyrannize the people.

Madison is generally credited as the lead architect of our constitutional design. Animated by his vision of checks and balances, the founders prescribed an intricate network of new institutions, all holding the others to account through carefully distributed powers and chosen through a variety of different methods designed to prevent any one faction from dominating. Through the winter of 1787–1788, as Madison hurriedly worked through his twenty-nine contributions to The Federalist, he must have taken no small satisfaction from the intelligence, even the elegance, of their collective achievement.

Madison’s hopes for the new nation must also have been sustained by the remarkable display of statesmanship in which he had participated in Philadelphia. Madison famously opined in The Federalist No. 51, “If men were angels, no government would be necessary.” But, in retirement, he reflected that “there never was an assembly of men, charged with a great & arduous trust, who were more pure in their motives, or more exclusively or anxiously devoted to the object committed to them, than were the members of the Federal Convention of 1787.” He had thus seen that, even if divinity is beyond human attainment, our political leaders, properly motivated and organized, could put aside partisan differences and rise to great occasions. The institutional scaffolding that the Constitution erected might even nurture and reward that spirit.

Let us imagine, though, even as he completed his writings as Publius in March 1788, there came a chilly Manhattan night when James Madison’s sleep grew fitful. Let us imagine that, perhaps in a moment of unconscious self-doubt, he began to envision the future with a prescience exceeding even that of Benjamin Franklin. In this dream, as I imagine it, Madison began to conceive not the restrained chief executive for which the Framers planned, but an ambitious and overreaching presidency, nurtured too often in its political aggressiveness by an irresponsible Congress and overly deferential courts. A spirit of presidentialism, not republicanism, had become the national government’s animating principle. The new electoral college system, designed to promote wise leadership and worthy character, had somehow become a tool for entrenching the power of an ideologically narrow elite. Rather than cultivating the spirit of consensus that animated 1787 Philadelphia, the parties in power, in this alarming dream, routinely cast aside habits and processes born of mutual respect and accommodation in order to advance an all-too-inflexible factional agenda. Surely, this would have been Madison’s worst constitutional nightmare. The good news, for Madison, is that he probably never had such a dream. The bad news is that the dream I am hypothesizing would have foreseen all too accurately the real government of the United States of America, especially as it functioned during the Reagan through George W. Bush years.

For the last quarter century, the checks and balances of American government have been increasingly battered by the merger of two powerful currents. One is the gathering concentration of power in the hands of the federal executive, a trend nurtured since the New Deal by Presidents both Democratic and Republican, although at different rates of acceleration. The second current has been the relentless campaign of the right wing of the Republican Party since 1981 to steer the capacities of our national government toward the fulfillment of a conservative social, economic, and foreign policy agenda. Together, the growing concentration of executive power and the campaign for partisan predominance have produced an era of aggressive presidentialism, 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. This constitutional perfect storm has put the design of our democratic republic at risk, upending many of the norms and informal institutional practices that have helped to sustain the Madisonian checks and balances in our national government, at least since the end of World War II.

The campaign for partisan predominance has sometimes entailed the assertion of congressional or judicial power in constitutionally dubious ways—most notably, the impeachment of President Clinton and the Supreme Court’s decision in Bush v. Gore. Its gravest implications for day-to-day governance, however, arise from the conjoining of partisanship with the attempted aggrandizement of presidential authority. In order to further its revolutionary policy ambitions, the Reagan Administration developed a more aggressive theory of presidential power than any prior Administration had propounded. In its hands, and during the Administrations of both Presidents Bush, presidentialism took unprecedented new forms, challenging historic conceptions of both legislative and judicial power. The ideological zeal with which these Presidents and their supporters pursued their constitutional vision fully exemplifies the spirit of partisan passion and narrow self-interest that Madison located at the heart of faction.

This is not to let the Clinton Administration off the hook. Even as it disavowed aspects of right-wing constitutional interpretation, the Clinton Administration found some of its tenets congenial for accomplishing its own ends. U.S. participation in the spring 1999 NATO air campaign against Serbia was based on claims of presidential authority arguably more dubious than any since the end of the Vietnam War. After the Republicans took control of Congress in 1994, President Clinton likewise made claims for the presidential control of domestic regulatory policy making that were nearly unprecedented in substance and certainly unparalleled in volume—hoping, no doubt, to reassert his relevance on the national political stage.

The Clinton-era developments illustrate one of the great dangers of presidentialism—its resistance to contraction. The usurpation of authority works as a one-way ratchet. Even if only some Presidents advance executive power unduly as a matter of partisan ideology, all Presidents, whenever their power is challenged, will be tempted to embrace their predecessors’ more audacious claims as sources of legal authority and strike out on their own. Unless somehow rebuked, the example of any President asserting authority without a genuine constitutional basis thus becomes historical precedent for the next President committed to the practice of presidentialism whether as a matter of ideological commitment or mere political calculation.

As recent history has unfolded, it is the legal theorists working for our most recent Republican Administrations who have most vigorously championed presidentialism as an accurate reading of what our constitutional Framers historically intended. It is not. Other presidentialist legal thinkers, including advocates for presidentialism under Democratic Administrations, have argued that presidentialism is such good governmental practice that either we should read the Constitution in a more modern vein in order to mandate presidentialism or we should welcome practices of legislative and judicial deference to the President that allow government to behave in a presidentialist fashion. The historical record, however, does not bear out the claims for presidentialism as good practice. If we look at the functioning of our national executive when behaving most consistently with the tenets of presidentialism, we frequently find that the assumption of unilateral presidential authority prompts a narrowness in consultation, and a defensiveness and rigidity in outlook, that degrade the quality of executive decision making. Furthermore, as might have been predicted, presidentialism operates as an ethos of government in a way that undermines other critical values, such as allegiance to the rule of law and respect for coequal branches and divergent political outlooks. As discussed in chapters 4 and 5, the results, made dramatically manifest in the “Bush 43” Administration, have included dangerously irresponsible government lawyering and a fetishizing of presidential prerogative in ways that defy common sense and the public interest. When presidentialist practice is analyzed clearly, it seems to rest on ideas about democracy and the rule of law that are unattractive and deeply unpersuasive.

Of course, the nation sometimes benefits from unilateral presidential action—Washington’s proclamation of neutrality, Lincoln’s Emancipation Proclamation, and the resolution of the Cuban missile crisis are but three celebrated examples of the many undoubtedly available. But the realization of these benefits does not require anything like the wholesale adoption of aggressive presidentialism, either as constitutional theory or prevailing government practice. In all but the most exceptional circumstances, searching congressional oversight, robust presidential accountability to the rule of law, and a pluralist approach to policy development within the executive branch are all consistent with the level of executive branch energy we need in order to thrive as a nation.

The ambitions of the unilateral presidency cannot be squared with either the presidency envisioned by our Constitution or contemporary needs. Its proponents may argue that the historical conception ought to be replaced with a new unilateral presidency because a more autonomous, less fettered presidency actually works better in the national interest than does a presidency subject to strong checks and balances. But time and time again, it has become evident that Presidents, left relatively unchecked by dialogue with and accountability to the other two branches, behave disastrously. The new unilateral presidency is thus not appealing either as constitutional interpretation or as good institutional design. To put the point another way, the Framers got this right. It is now critical to restore checks and balances to robust health and reinvigorate American democracy so that no narrow faction of the American polity can dominate policy making throughout all our institutions of national government.

Checks and Balances and Democratic Legitimacy

At the heart at our founders’ design for a new republican form of government is a web of political institutions structured to hold each other accountable. As Madison explained, it is not enough for the security of liberty that the constitutional text provide for three separate and distinct branches of the national government. It is not sufficient that legislative, executive, and judicial powers should each, in the main, be concentrated chiefly in just one of those branches. Power, he wrote, “is of an encroaching nature” and must “be effectually restrained from passing the limits assigned to it.” The separation of powers, in other words, is essential to liberty, but cannot preserve itself without checks and balances.

In the Framers’ hands, the key institutional imperative was to structure the national government so that each branch, acting under the influence of foreseeable ambitions and incentives, would keep both itself and its coordinate branches within their respective constitutionally assigned roles. In Madison’s famous words, protection against tyranny “must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.” Applying this thought to the new presidency, we would not have to worry about monarchy, because Congress and the judiciary would hold executive ambition in check.

In operation, the new institutional design required some complex calculations. The Framers had to position the branches of the new government to achieve a careful balance of autonomy and interdependence. Examples abound: The President has unilateral authority to establish diplomatic relations with other nations, but cannot make treaties without Senate consent. Congress may oversee the operations of the executive branch, but cannot create or modify administrative authority without enacting a statute subject to presidential veto. The Constitution protects the independence of the federal judiciary with guarantees of salary protection and lifetime tenure for individual judges, but gives Congress the authority to delineate the courts’ actual jurisdiction.

Among the most important powers of each branch are the authorities each holds to review the exercise of power by the others. The President, for example, reviews legislation through his veto power and can countermand the exercise of judicial authority by his power of pardon. Congress has not only investigative power with which to review both the President and the judiciary, but exclusive power to impeach and remove any officer of the United States, thus giving it the authority to review, and respond to, individual wrongdoing by federal office holders. The courts have power to review both executive and legislative acts through cases properly brought within their jurisdiction, including the power to nullify, where necessary, the unlawful acts of the other branches. In general, the manner in which each branch deploys its checking powers is entirely within its exclusive discretion.

At the same time, in order that the branches not use their autonomous checking powers with undue disregard for the prerogatives of their coordinate branches, each branch had to be put in a position of partial institutional dependency. For the most part, each branch needs the acquiescence, if not actually the agreement of, the other two branches in order to work its will. Thus, Congress cannot easily legislate without presidential agreement. It cannot execute the laws once passed. Likewise, the President is dependent for most of his initiatives on key officials whom the Senate must confirm and on appropriations that Congress must enact. For its part, the judiciary does not execute its own judgments and depends on Congress for both appropriations and the delimitation of its jurisdiction. Through the combination of the branches’ autonomous powers and what might be called their “collaborative powers”—powers that cannot be exercised effectively without the cooperation of other branches—each branch was given both positive incentives to cooperate and weapons to retaliate against uncooperative conduct.

In addition to the prophylactic virtue of constraining power, this system promised an affirmative virtue—fostering deliberation. The multiplicity of institutions, each with different constituencies, organizational structures, modes of selection, and internal decision-making processes, would insure that the nation would embark on no program of public policy without the examination of that policy from a wide array of perspectives. This was crucial to the Framers partly for the general reason that, all things being equal, it is better to make important decisions through careful consideration, rather than rashly and without discussion. But a second point was also critical. The Constitution tried to insure that, in the process of deciding upon national affairs, all affected interests would have a genuine opportunity to be heard and to have their interests accounted for in a collective determination of the public interest. In Alexander Hamilton’s words: “The oftener [a] measure is brought under examination, the greater the diversity in the situations of those who are to examine it, the less must be the danger of those errors which flow from want of due deliberation, or of those missteps which proceed from the contagion of some common passion or interest.” Deliberation among numerous parties embodying a diversity of interests was thus essential to decision making consistent with the public good. In contrast, decision making based on “some common impulse of passion, or of interest,” would be tainted by the spirit of “faction” that Madison so decried. The web of new governmental structures was designed, in sum, to help insure that policy outcomes represented something other than “an unjust combination of the majority of the whole.”

The Framers called their theory of legitimate government “republicanism.” In modern parlance, we recognize their republicanism as an extraordinary advance in both the theory and practice of what we would today call democratic legitimacy. Governments rule legitimately when the relative few who exercise the power of the state are morally entitled to rule. It is the implicit claim of democratic systems that democratic governments are morally entitled to govern because, to the maximum extent possible, democracy promotes two political virtues. First, it fosters a life of autonomous citizenship, in which people experience themselves as free political actors, participating meaningfully in the project of collective self-governance. In its American version, this experience embraces not only the right to vote, but to petition the government, to stand for office, and to associate freely for public, as well as private purposes. Second, democracy respects equally the interests of all citizens, all of whom are entitled to receive full and fair consideration in the making of public policy. Because the very premise of democracy is the presumed moral equality of all persons within the polity, no one’s interests can properly be excluded from the community’s concern as laws and regulations are adopted that either restrain the scope of individual activity or provide for the distribution of public or private resources.

The special genius of the American Constitution lies in the realization of its Framers that such full and fair consideration of all citizens’ interests requires a multiplicity of legitimating mechanisms. That is, the Framers might have provided for a system that relied for legitimacy entirely on a single factor, namely, the electoral accountability of government officials. But they did not. Alternatively, they might have provided for a system that relied entirely on wise and public-minded deliberation, without recourse to popular sentiment. They did not do that either. Instead, they combined elements of what we would now call both representative democracy and deliberative democracy into a unique set of “republican” institutions. These checking and balancing components combine elements of both representative and deliberative legitimacy, while preventing any branch from overstepping its constitutionally assigned bounds. Checks and balances thus operate as both shield and sword for liberty. They protect against the overweaning ambition of any one branch of government, while affirmatively supporting the values of political freedom and equal consideration that render government just.

Constitutional Culture and the Modern Attack on Checks and Balances Norms

Of course, neither fair deliberation nor even the more general hobbling of government’s tyrannical impulses, was the Framers’ sole objective. First and foremost, they wanted a government that would work and that would work effectively to advance the “permanent and aggregate interests of the community” in both domestic and international affairs. From that standpoint, any government of separated powers poses obvious difficulties. Because a monarchy revolves around a single source of authority that embodies the sovereign power of the state, it can act quickly on behalf of the nation. This is not so for America. In the United States, it is the people who are sovereign, and there is no one source of official authority that is charged with acting unilaterally on their behalf. The Framers thus gave us a form of institutional interdependence that helps to check tyranny and that orients the system toward consensus, but at a price. Their system inevitably entails delays in decision making and a bias in favor of gradualism.

Norms or habits of institutional cooperation are essential to enable a government of this kind—a government of separated powers—to achieve its multiple potential virtues. It is not merely foreseeable, but intended, that the three branches of government experience tension and competition. Friction, to some extent, is a sign of the system at work. But life cannot be all friction. As the British Prime Minister Lord John Russell famously put the point: “Every political constitution in which different bodies share the supreme power is only enabled to exist by the forbearance of those among whom this power is distributed.” A system of separated powers, in other words, works only if every branch is committed to effective governance and is willing to hold back from deploying its powers to their extreme theoretical limits. In a separation of powers system designed to embody checks and balances, where powers are allocated to each branch precisely with the purpose of rendering each branch vulnerable to the discretion of the others, some degree of institutional self-restraint is imperative.

To put this point another way, no paper plan for the operation of government can ever be sufficient in and of itself to guarantee the responsible exercise of power, even if it is a plan built on thoughtfully designed checks and balances. A paper plan for government can operate in vastly different ways depending on its participants’ commitment to the values that animate that plan and their allegiance to those values in the form of norms or implicit, but widely recognized, rules and customs. Consider, for example, if Congress had early determined on a custom that legislative votes to override presidential vetoes would be automatic—that all members of Congress, on pain of expulsion, would agree to override any presidential veto, irrespective of which members actually voted for the original bill. Such a custom would have all but eliminated the President’s capacity to influence the design of legislation. Likewise, what if Presidents automatically pardoned all criminal defendants of their particular party or Congress decided that judges who rendered unpopular decisions were, for that reason alone, guilty of a “high crime or misdemeanor,” warranting removal from office? Such practices would have enervated what we now think of as judicial independence. When we bring these possibilities to mind, it becomes evident that it is not only or even primarily the existence of checks and balances on paper that preserves liberty against government ambition; it is the web of attitudes, beliefs, and informal practices surrounding implementation of the Constitution that gives life to the document’s underlying purposes. We can call this web of attitudes, beliefs, and practices our “constitutional culture.”

Ordinarily, at least four factors in the American system coincide to produce the culture of self-restraint that averts any serious breakdown of government. One is the internalization within each institution of norms of deference for the core capacities of the other two branches. The history of federal court jurisdiction provides a powerful case in point. The past two centuries are replete with examples of the federal judiciary rendering decisions antagonistic to the views and interests of the elected branches of government. The judicial invalidation of President Truman’s seizure of the steel mills and the overturning of anti-flag-burning laws are two well-known historical illustrations. Yet, the elected branches have rarely retaliated in any significant way. The President has rarely—and never in modern history—refused to enforce or recognize judicial orders. Congress, despite numerous proposals to do so, has never ousted the courts from all jurisdiction to decide a category of cases in which Congress, for a political standpoint, would probably prefer judicial silence. It seems impossible to explain the forbearance of the elected branches from substantially curtailing federal jurisdiction in such controversial areas as abortion, school prayer, or desegregation unless we regard that self-restraint as a sign of our elected officials’ allegiance to the near inviolability of the judicial function as conveyed by Article III of the Constitution. This is what I mean by a habit or a norm of deference.

A second factor is a common belief in the legitimacy and necessity of active, problem-solving government. Frequently, even amid deep policy disagreement between the executive and legislative branches, public policy compromises emerge in the solution of public problems because both elected branches are committed to demonstrating their capacity to respond in some constructive way to public challenges. Powerful examples from the 1990s include tax and budget reform under President George H. W. Bush and welfare reform under President Clinton. In each case, an ideologically reluctant President went along with congressional initiative out of a felt imperative to respond to a widely perceived public problem and to share in the credit for its solution.

Third, each branch—but each of the elected branches especially—has historically been motivated to represent a broad range of public opinion on critical issues. Even when the elected branches disagree significantly on public policy, each has usually been motivated to seek the approval of a wide spectrum of American voters. This impulse was significantly evident in President Clinton’s judicial nominating strategy, in which he worked with a Republican-controlled Senate to confirm potential judges who were notably centrist in their views, and in the Republican Congress’s 1996 enactment of line-item veto authority, which threatened to empower a Democratic President, but which was perceived to be widely popular among the national electorate.

Finally, each branch of the government is structured internally so as to promote deliberation, thus increasing the likelihood that multiple points of view will be heard and given time to help shape long-term policy outcomes. Congress, for example, is divided into two houses, which must concur in a legislative proposal in order that it be enacted. The length of terms and the geographical basis of representation is different in the two houses, which, originally, were also selected by different methods. The judiciary consists of a Supreme Court and lower courts through which legal interpretation evolves in a highly formal, multivocal way. Article III of the Constitution gives those judges who officiate over the courts authorized by that article lifetime tenure, insuring that, at any given moment, the judiciary is populated by judges whose prejudicial careers exhibit a variety of ideological and political predispositions. Even the constitutional text describing the executive branch, the most unitary of the three branches, contemplates that the President may seek advice from the heads of “departments.” Deliberation was an intended feature of the new government through and through.

Government lawyers, if they perform their jobs well, play a central role in maintaining the ethos of deliberation that was the Framers’ hope. Decision making is most effectively deliberative if it involves a wide variety of perspectives, each shedding light on whatever issue is under discussion. In formal deliberative settings, such as an argument before the Supreme Court or debates on the floor of Congress, contending perspectives are literally embodied in different human beings, all physically present and asserting their various points of view. Decisions within the executive branch, however, are most frequently made in a potentially more insulated environment. The only voices literally present in a particular policy conversation may be those of a high-level presidential appointee, some lower-level presidential appointees, and civil servants who are most directly accountable to these presidential appointees. In such settings, it would require some form of special self-discipline for those immediately involved in the decision to actually concern themselves with perspectives and interests other than the partisan agenda they likely all share. This is especially so for the vast majority of decisions that will never be reviewed in Congress because they are too low-visibility and that will never be reviewed in court because they do not affect the specific interests of identifiable individuals in a way that would ordinarily entitle them to call those decisions into question through litigation.

Seen in this light, a critical function of the law in operation—the law as embodied for the executive branch in judicial opinions rendered by the courts and statutes enacted by Congress—is to make manifest the range of interests and concerns that would not otherwise be vigorously articulated when key decisions are made. It is precisely in this way that the rule of law is a fundamental day-to-day check on the spirit of faction in government affairs. Executive branch lawyers, residing in every agency of government, make this check real because they advise on virtually every important administrative decision and focus decision makers’ attention on whatever law is relevant. When the executive branch in 2009 attends, for example, to the Voting Rights Act of 1965 or the 1969 National Environmental Policy Act or the Supreme Court’s 1974 decision in United States v. Nixon, the Administration can, in a sense, hear the multiple voices of earlier times that themselves had to reach consensus in order to create binding public policy. These voices are virtually, even if not physically present, and their recognition can serve as a buffer against the more immediate passions of partisanship or the undisciplined pursuit of self-interest. Conscientious lawyering insures that contending perspectives are brought to bear whenever current decision makers act, and is thus a critical element in preserving the democratic legitimacy of American government.

The attack on checks and balances between 1981 and 2009 can very much be seen as an assault on a constitutional culture built on checks and balances norms. Each branch has been deploying its powers with increasing disrespect for its coequal branches, and the escalating institutional conflict between President and Congress most especially has created a level of mutual disregard that would have been essentially unthinkable at any prior moment in modern times. It is important to be clear on what is new about this. It is not unprecedented for one branch of government to chafe against restraints imposed by others or even to undertake initiatives pressing the edges of its constitutional prerogatives. The overall system has some capacity to self-correct for such tensions. If, however, one looks at the historic points of greatest tension among the branches—Andrew Jackson’s battle against the National Bank, the impeachment of Andrew Johnson, or the attempted court-packing of President Franklin Roosevelt—they have generally been characterized by an impulse that is absent from the current trend. In refusing to sign legislation that would recharter the Bank, Jackson was standing fast against an institution widely regarded as supporting the interests of creditors against the interests of the more numerous, but less moneyed classes. Congress enacted the Tenure in Office Act hoping to provoke Andrew Johnson into a violation of law that would provide formal grounds for impeachment, but its plain motivation was Johnson’s opposition to Reconstruction, which Congress had helped impose in order to end white caste rule in the South. Roosevelt proposed court-packing, an obvious challenge to the political independence of the Supreme Court, in response to what he regarded as the Court’s unwillingness to legitimate legislative and executive measures designed to relieve the Depression and for which the elected branches enjoyed a popular mandate. Thus, each of these earlier assaults on conventional ways of doing business was arguably in the attempted service of more democracy. Even though checks and balances were compromised by such earlier interbranch battles, the challenges to business as usual tended to be supportive of the very aspirations for democratic legitimacy that checks and balances are also supposed to advance.

The impulses behind recent breaches of interbranch accommodation, however, were decidedly antidemocratic. Consider, for example, the 1995 budget showdown between President Clinton and Congress. Congressional Republicans threatened to withhold funding from the executive branch entirely unless President Clinton relented on a series of budget priorities that had been the core of his successful 1992 campaign for the presidency. Congress has the formal authority to defund the entire executive branch because the Constitution vests the power of the purse in Congress without any express textual limitation. The problem is that, if any Congress takes this authority to extremes, the power to hobble the courts and all but dismantle the entire executive branch could obviously undermine one of the Constitution’s fundamental organizational premises, namely, that the government consists of three coequal branches. Nonetheless, the 1995 Republicans did not relent in their demands until the nation sustained two across-the-board shutdowns of government agencies, in November and December, 1995, of seven and twenty-one days, respectively. Congress and the President finally agreed in April 1996 on appropriations for Fiscal Year 1996, which had actually begun on October 1, 1995. Congress could hardly argue that its position was in service of democracy; on every issue drawn between them in this debate—funding for education, environmental protection, Medicare and Medicaid—majority public opinion favored the President’s position.

Another conspicuous example of the antidemocratic assault on the culture of checks and balances consists of the impeachment and trial of President William Jefferson Clinton. The December 1998 House vote for Articles of Impeachment brought together two key subplots designed to terminate the Clinton presidency. One was the Whitewater investigation, a prolonged special prosecutor investigation into a nearly impenetrable series of allegations regarding the peripheral involvement of President Clinton and his wife, Hillary Rodham Clinton, in a series of Arkansas business dealings dating back to the late 1970s. Twelve people ultimately were convicted of a variety of offenses in connection with the Whitewater real estate venture and the related failure of the Madison Guaranty Savings and Loan Association. After an investigation that lasted more than six years, it was ultimately determined that neither of the Clintons should face any charges relating to the Whitewater matter.

The second subplot (or combination of subplots) involved allegations against Clinton for sexual misconduct. These stemmed originally from a suit initiated by Paula Jones, a former Arkansas state employee, accusing President Clinton of allegedly sexually harassing her in 1991, when Clinton was still governor of Arkansas. Clinton’s claim that Presidents ought to be immune, while in office, from civil lawsuits arising from alleged misconduct that occurred prior to taking office as President was rejected in May 1997 by the U.S. Supreme Court. As the Jones suit proceeded in a federal district court in Arkansas, Jones’s lawyers were tipped that, from 1995 to 1997, President Clinton had engaged in an extramarital sexual relationship with Monica Lewinsky, a former White House intern. In January 1998, both Lewinsky and President Clinton denied the affair, and the Special Division of the D.C. Circuit responsible for appointing and overseeing independent counsel extended Kenneth Starr’s jurisdiction to consider whether Lewinsky and others had perjured themselves or suborned perjury in connection with the Jones case. A day later, President Clinton denied his relationship with Lewinsky in a videotaped deposition.

Although the trial court ultimately dismissed Jones v. Clinton on a motion for summary judgment, Starr subpoenaed President Clinton to testify in front of a federal grand jury. During that testimony, Clinton acknowledged his affair with Lewinsky, but denied that he had lied or withheld evidence or urged others to do so. Less than a month later, Starr submitted to Congress an extensive report concluding that Clinton had perjured himself. On September 11, the House voted to release the report, and on October 8, voted 258–176 for an impeachment investigation that resulted in the House Judiciary Committee’s approval of four Articles of Impeachment, mostly by straight party-line vote. On December 19, the lame-duck House passed one article alleging grand jury perjury by a vote of 228–206, with five Democrats supporting the article and five Republicans opposing it. An obstruction of justice article passed 221–212, but likely would have been defeated if the vote had been held upon the January 1999 seating of the 106th Congress, in which the Democrats held five more seats. The two other articles, alleging perjury in the Jones deposition and misstatements in Clinton’s written responses to Judiciary Committee questions, were both rejected. On February 12, 1999, the Republican-controlled Senate voted to acquit Clinton by votes of 55–45 on the perjury count and 50–50 on the obstruction of justice count; no Democrat voted for either article. The Republicans, who would have needed 67 votes to prevail, could not achieve a clear majority on either article, even in a Senate in which they held 55 seats.

House Republicans might well have said that their pursuit of President Clinton did not transgress any express legal limitation on their impeachment power, but, as with the 1995 budget showdown, the Republican Congress was risking, perhaps even seeking, the destabilization of a coordinate branch of government through the deployment of its formal powers to an extreme degree. It could not credibly be asserted that Clinton’s alleged misconduct put either the welfare of the nation or the strength of our constitutional system at risk. Not surprisingly, the Republicans never managed to arouse anything close to majority public support for the impeachment, and President Clinton’s approval ratings rose to astonishing peacetime levels as the proceedings against him intensified. Although the impeachment failed, the diversion of the President’s time, energy, and attention in defending against such an effort was dangerous, and the episode stands as an ominous institutional precedent for seeking to remove a President based all but entirely on partisan animus.

A third example of the spirit of faction undermining the constitutional culture of institutional self-restraint is the Supreme Court’s strange role in determining the outcome of the 2000 presidential elections. While it is virtually certain that a plurality of Floridians who cast their ballots for President thought they had voted for Vice President Al Gore, after a month of legal wrangling and contested recounts mandated by the Florida Supreme Court, the right-wing-dominated U.S. Supreme Court called a halt to the vote counting, virtually directing that the Florida—and thus national—election be awarded to Bush. The Supreme Court initially involved itself based upon an utterly bogus legal issue and then resolved the case as it did based on entirely novel and substantially implausible legal reasoning. As a consequence, Bush v. Gore will perhaps stand forever as the Court’s most striking expression of contempt for modern democratic norms.

Although much can be and has been said by way of critiquing the Court’s opinion, its most conspicuous defect from a checks and balances perspective is the majority’s willingness to abandon the Court’s prior commitment to one of its most important norms of self-restraint, the political question doctrine. Even though the Court has the authority to overturn actions by the elected branches, it has long recognized that the constitutional order works best if some constitutional matters are authoritatively left to be resolved by those branches. In this respect, Bush v. Gore can be instructively compared to Nixon v. United States, in which the Court confronted a challenge by an impeached and convicted federal judge to the procedures by which the Senate had removed him from office. Rather than taking evidence in plenary session, the Senate had delegated that function to a committee. The Senate as a whole met only to review the Committee’s report and to hear such arguments as Judge Nixon was prepared to offer on his own behalf. Nixon argued to the Supreme Court that this procedure denied him his constitutional right to be “tried” by the Senate, as the Constitution says.

The Supreme Court unanimously determined that it would not intervene in the matter. The majority, speaking through Chief Justice Rehnquist, held that the constitutional sufficiency of Senate procedures for adjudicating impeachment controversies was a matter to be resolved exclusively by the Senate itself. The constitutional vesting in the Senate of “the sole Power to try all Impeachments” was deemed “a textually demonstrable commitment of the issue [by the Constitution] to a coordinate political department.” That is, the Court concluded that the Constitution meant for the final resolution of this particular legal question to lie outside the judiciary. Moreover, the majority said, the word “try” in Article I of the Constitution was too vague and general to yield “judicially manageable standards” for what would amount to a constitutionally sufficient trial. In other words, the Justices insisted that they could not work out a sufficiently stable and predictable definition of the verb “to try,” against which to measure whether Judge Nixon had actually gotten a trial; it was as if the Constitution had used a word like “cute” or “tasty,” about which there could be infinite argument. This was unmistakably dramatic testimony to the Court’s determination to respect Congress’s impeachment authorities. Nine Justices determined that, for purposes of enforcing Article I of the Constitution, federal judges—people who conduct trials for a living—were unable to determine in a sufficiently rigorous way what ought to count as a “trial.”

Nixon v. United States rests on sound institutional judgment. Impeachment is the sole constitutionally designated process for achieving judicial accountability for wrongdoing. It would have appeared an unseemly conflict of interest for the Court to have reserved to the judiciary the power to oversee that very process. But the argument for the Court eschewing involvement in the 2000 presidential election was surely even more compelling. For sitting Supreme Court Justices to adjudicate which person shall be entitled to name their successors does unmistakable violence to constitutional checks and balances. Article II of the Constitution and the Twelfth Amendment, which create our system of presidential elections, quite plainly embody a textually demonstrable commitment to Congress of the power to resolve all issues related to the proper tabulation of electoral votes. Indeed, Congress has enacted a detailed statutory scheme to make just that process possible.

Of course, Congress may not have conducted itself any better than the Court; this was, after all, the Clinton impeachment Congress. But, even if Congress messed up, even if it cut deals behind closed doors, and even if it failed to deal reasonably with Florida’s difficulties in achieving an accurate count, a simple fact remains: if the people of the United States were unhappy with Congress on any such account, those members of Congress deemed responsible could have been voted out of office. No such recourse against unelected judges is possible. One could hardly imagine a set of decisions in which democratic accountability is more important than those involved in the legitimate political resolution of an election contest. By contrast, despite the ineffable odor of partisanship that hangs over the Court’s opinion in Bush v. Gore, there was no politically appropriate response to be levied against the responsible Justices themselves. The Court that decided Nixon v. United States should surely have known better—every Justice in the Bush v. Gore majority was already on the Court and voted for the result in Nixon v. United States.

Bush v. Gore corresponds with the other episodes described because it stands as an astonishing departure from institutional norms with regard to interbranch relations. Never before has the Supreme Court directly implicated itself in the political selection of the authorities in charge of another branch of government. It will be an enduring source of shame to our legal system that, in resolving a dispute over the world’s most important elected office, the Supreme Court penned an opinion in which our national commitment to democracy—indeed, the very word, “democracy”—does not appear.

The Most Dangerous Attack on Checks and Balances: Iran-Contra and Modern Presidentialism

The episodes just recounted were detrimental to American democracy, but do not represent partisan ambition in its most dangerous form. That distinction belongs to the marriage of partisan ambition with the long-term and bipartisan trend toward increasing executive power. With the end of World War II, the advent of the cold war and its national security preoccupations launched a steady accretion in unprecedented presidential authority. In the aggressive presidentialism of the Reagan Administration, America finally saw what would happen when the bipartisan ambitions of America’s Presidents became fully conjoined with the political agenda of a zealous political faction.

The Iran-Contra scandal is perhaps the most crystalline example of the consequences. To understand the constitutional magnitude of Iran-Contra, we must remember that Congress is able to secure its position as coequal with the executive and the judiciary because it has three key authorities: its control over “the purse,” its powers of legislation, and its authority to investigate. Congress would hardly be a serious counterweight to the other two branches without these powers. Any attempt by another branch to circumvent entirely this triumvirate of powers would obviously breach an implicit norm of interbranch deference. It is likewise critical to note that, despite the President’s pivotal role on the international stage, Congress’s combined arsenal of fiscal, legislative, and investigative powers is no less important in foreign than in domestic affairs. Congress has the express power to regulate foreign commerce. It regulates immigration and defines offenses under international law. The ratification of treaties and the appointment of ambassadors require the Senate’s assent. Congress has the power to provide for the support of our military and to declare war. And, of course, there may be foreign policy ramifications, both direct and indirect, to Congress’s exercise of legislative powers in the domestic arena, as well as in its exercise of its fiscal authorities.

Between 1984 and 1986, the Reagan Administration committed a significant assault on all of these powers—legislative, fiscal, and investigative—in an attempt to oust Congress from foreign policy-making influence with regard to Nicaragua. Congress, in line with clear public sentiment, had proscribed the use of military or intelligence appropriations to aid military forces (the “Contras”) seeking to overthrow the government of Nicaragua. In a stunning three-pronged attack on Congress’s authority in this area, the executive sought to raise money for the Contras independently of Congress (in evasion of Congress’s fiscal powers), facilitate that fund raising through arms sales that flouted applicable federal law (in evasion of Congress’s legislative powers), and to lie about it, even under oath (in evasion of Congress’s investigative powers).

In November 1986, while denying that the deals represented a trade of “arms for hostages”—American hostages held by radical Islamic groups in Lebanon with ties to Iran—President Reagan confirmed reports that the United States over the previous two years had facilitated six sales of antitank missiles, antiaircraft missiles, and spare parts for missile systems to Iran that were unlawful under various statutes regulating the international sale of arms. National Security Council (NSC) staff facilitated the diversion of profits from the arms sales to the support the Contras. In brief, NSC staffer Lt. Col. Oliver North helped set up a nominally private company through which to funnel proceeds from the arms sales to the Contras—funds that belonged to the United States and could lawfully be spent pursuant only to an appropriation or other legal authority. No such authority had been enacted. When the web of operations became public, North and a host of other officials, including National Security Adviser John Poindexter and former National Security Adviser Robert McFarlane, lied to Congress, destroyed evidence, and unlawfully withheld information from investigators. Seven officials were convicted of these crimes, although the convictions of North and Poindexter were set aside on the ground that the cases against them were tainted by evidence that they had supplied voluntarily to Congress under a grant of immunity. A prolonged independent counsel investigation came to an end in 1993, after President George H. W. Bush, following his loss in the 1992 elections, pardoned six high officials who had either been convicted of Iran-Contra offenses or were under continuing investigation.

All of this might be dismissed as an isolated scandal without lasting political implications except that executive branch Republicans in subsequent Administrations were all but unrepentant about it. President Reagan’s Vice President and successor, George H. W. Bush, adopted a remorseless view of the events, signaling a clear lack of understanding as to their constitutional significance. Specifically, he embraced the view of Oliver North that attempts to bring legal accountability to those involved in the scandal were merely attempting to “criminalize policy differences.” For its part, the George W. Bush Administration appointed two of the officials who admitted to misleading Congress in this affair to significant policy positions: Elliot Abrams became Deputy National Security Adviser and John Poindexter was named Director of the controversial Information Awareness Office at the Defense Advanced Projects Research Agency, perhaps the most important government agency for funding basic and applied research for the Department of Defense. It is clear that Reagan’s conservative successors actually regarded the Iran-Contra scandal as acceptable executive branch behavior.

But there is an even larger point to be made here. As serious as may be abuses of power by both Congress and the Supreme Court, it is the President who, at the start of the twenty-first century, poses the most profound threat to our checks and balances system. First, as Iran-Contra demonstrates, it is the President who has the greatest capacity to act in secret and without the assistance of the other two branches. Had details of the Iranian arms deal not leaked through a foreign journalist, we may never have learned of the Reagan Administration’s assault on Congress’s appropriations and foreign affairs powers. In contrast, the impeachment of Bill Clinton and Bush v. Gore were ignominious, but public events. Thus, to the extent that transparency fosters accountability, it is the executive branch with its ability to operate secretly that is the most worrisome.

Second, both Congress and the judiciary have to muster collective majorities to accomplish their bad ends. Before another impeachment as irresponsible as the Clinton impeachment occurs, there will again have to be 218 votes in the House to support it. Presidents can mobilize their staffs much more easily than Speakers can mobilize legislative majorities. A majority on a federal appellate court or on the Supreme Court may be easier to muster than a majority in Congress, but courts are inherently restrained by the knowledge that they cannot execute their own judgments—it is the executive branch and the legislative branch that would have to implement. Although this is an imperfect institutional check to be sure, judicial awareness of this limitation poses at least some impediment to irresponsible action by the courts that the executive does not confront. Judicial interference with checks and balances is a less worrisome prospect also because courts lack the power of initiative that rests with the elected branches. They cannot file their own cases.

And the President is the most dangerous branch for two other reasons, as well. All of the impediments I have mentioned to congressional and judicial action in defiance of checks and balances are institutional weaknesses, as well, in mustering an effective response to presidential usurpation. Time and political inertia are invariably on the side of whichever branch can deploy its independent resources with the least encumbrance. And, of course, to the extent secrecy is not the President’s most pressing concern, he has an administrative and military apparatus potentially at his disposal that neither Congress nor the courts can match. In terms of mobilizing efficiently and effectively for deleterious ends, the President has profound institutional advantages over the other two “coequal” branches.

It is also worth underscoring that the dangers of presidentialism do not confine themselves to foreign affairs. Foreign and military affairs provide the ripest context for presidentialism because the Constitution confers on the President more robust powers in foreign than in domestic affairs, and, in foreign and military affairs, the President often acts in relative secrecy. Yet, as the nation saw during the Bush 43 Administration, a President determined on a course of domestic policy—such as forestalling all government regulation aimed at addressing global climate change—can pursue such a policy largely without regard to the other branches through a combination of strategic appointments and bureaucratic discipline. Under the theory of the unitary presidency, explored in chapter 2, the President can effectively make environmental policy in this way, even though the Constitution gives the President no authority at all with regard to the domestic health and environmental welfare of the American people.

Copyright notice: Excerpt from pages 1–21 of Madison’s Nightmare: How Executive Power Threatens American Democracy by Peter M. Shane, published by the University of Chicago Press. ©2009 by The University of Chicago. All rights reserved. This text may be used and shared in accordance with the fair-use provisions of U.S. copyright law, and it may be archived and redistributed in electronic form, provided that this entire notice, including copyright information, is carried and provided that the University of Chicago Press is notified and no fee is charged for access. Archiving, redistribution, or republication of this text on other terms, in any medium, requires the consent of the University of Chicago Press. (Footnotes and other references included in the book may have been removed from this online version of the text.)

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Peter M. Shane
Madison’s Nightmare: How Executive Power Threatens American Democracy
©2009, 258 pages
Cloth $27.00 ISBN: 9780226749396

For information on purchasing the book—from bookstores or here online—please go to the webpage for Madison’s Nightmare.

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