Waking from Madison's Nightmare

By David Swanson

The book I just read is in the running, in my estimation, for second-best text on how to undo the imperial presidency. (Can’t be first, of course.) It’s called “Madison’s Nightmare: How Executive Power Threatens American Democracy,” by Peter M. Shane, and it’s much more about what the problem is than how to solve it, but the two things are not really separable, and the analysis of the problem here is invaluable.

This is a detailed and extensively researched look at the interactions among the three branches of our federal government, and the checks and balances employed – or the lack thereof. Shane takes a long view and sees 1981 and the Reagan presidency as the most radical break with the past, albeit the creation of a new era dramatically advanced by George W. Bush, following lesser advances by his father and Bill Clinton. Shane looks at domestic governance as much as foreign policy, and examines the relationships that departments and agencies have with the White House and with Congress:

“Up until at least 1981, if a federal administrative lawyer were asked to describe the relationship between the President and the administrative bureaucracy of the United States, the lawyer would probably say something like this: The President has powerful influence over the federal bureaucracy. He appoints the heads of all agencies (albeit with Senate advice and consent). Under the administrative laws enacted by Congress, the President can also fire most agency heads at will — and he can discharge any of them for good cause, such as lawbreaking. An agency’s failure to attend respectfully to the President’s concerns may elicit punishment in the preparation of the agency’s future budget. And, of course, the President is the President. By virtue of his office and his personal influence, what he says always carries great weight.

“But that lawyer would have added a crucial final point: the President cannot actually order administrative agencies to issue precise rules and regulations he wants. Agencies can issue rules and regulations that bind the public insofar as they have legislative authority from Congress to do so. That authority may leave the agency with substantial room for exercising its own judgment in how to develop the very best regulation. In exercising discretion, no sensible agency will be oblivious to the President’s policy agenda. But the decision of how best to exercise agency judgment remains with the head of the agency, not the President. That means the president may fire an agency head if he is disappointed too often, but he cannot insist beforehand that the agency head follow the President’s policy preferences.”

If you’ve been paying attention to how things work in Washington, this should sound like something from another planet. It is now routine for the White House to send cabinet secretaries to swing electoral districts for political purposes. No department head sneezes without the president’s permission. And the entire federal government is thought of as part of the executive branch — with the exception of Congress, which is left to constitute the legislative branch all on its own. But look at how the Constitution viewed things. It devoted Article I and over half the length of the entire Constitution to Congress, which it gave virtually every power conceived of, touching on many of the current departments of the federal government, and then explicitly stipulating that Congress should have any other necessary powers as well. Congress, according to the Constitution, has the power . . .

“To make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States or in any Department or Officer thereof.”

Stubby little Article II gives very few powers to the president, nowhere suggesting that he or she should have ownership or command over the various agencies of government, and in fact not mentioning any other than the military, except to say that the president can make appointments, and to say this:

“He may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices.”

This does refer to the departments as “executive departments,” and Article II does begin by giving “the executive power” to the president. But it’s worth pausing and stepping outside our own era for just long enough to wonder what “executive” means. Article II also says what the president is required to do, namely:

“He shall take Care that the Laws be faithfully executed.”

Congress, until relatively recently, was understood to be central to our government. Only Congress is given the power to borrow money, to regulate commerce with foreign nations, to handle immigration and bankruptcies and the creation of money, transportation, the post office, the punishment of crimes, establishment of courts, defining and punishing crimes by other nations, declaring war, ending war, raising and spending money, creating and maintaining and overseeing the military, repelling invasions, and so on. These days, the White House is considered central to everything. Laws are made by “executive order” (an “executive order” is something like a faithful betrayal, a self-contradiction), by “signing statement” (a “signing statement” is a statement that one is NOT signing a bill as written) and by drafting legislation in the White House and insisting that Congress pass it out of loyalty to the president.

Imagine the absurdity today of suggesting that a president has the right to ask department heads to report on what they are doing. They are doing what he has told them to do. What Shane suggests is not that the EPA or the Department of Labor should be moved from the executive branch to the legislative, but that there are appropriate roles for both Congress and the president, not just the latter.

I cannot touch here on all of the rich and informed discussions in “Madison’s Nightmare,” which include perceptive condemnations of the secretive and unaccountable decision-making processes that led to wars in Vietnam and Iraq. I would fault Shane here only with too much generosity in assuming that the presidents in these cases were trying to learn anything that they failed to learn. But Shane is right that Congress must not only have the power to declare war or refuse to; it must also have the power to make public the deliberations that precede that decision. Shane is wrong, however, in my opinion — and this seems to follow from his analysis — in omitting from his recommendations at the end of the book any sort of accountability, prosecution, impeachment, or punishment. He does propose that the lawyers who facilitated torture be fired. However, they are — with a couple of key exceptions — already out of office. And why would someone as smart as Shane believe that lawyers should be dismissed for writing what they were asked to, but propose no penalty whatsoever for the president or vice president who did the asking? Indeed, how does Shane not notice that (had his book come out earlier) it would have been the torturer in chief who would have had to dismiss his own obliging lawyers?

Shane’s recommendations at the end of the book are generally excellent. Many of them overlap with the ever-evolving list I’ve been maintaining, but the following were new ideas that I added to that list after reading this book:

Legislate a ban on presidents firing US attorneys at will. Give them four-year terms and allow their dismissal only for good cause.

Establish regular questioning of presidents by Congress members in Congress, as seen in the British Parliament.

Make government transparent on the internet, including the actions of agencies and the actions of Congress members.

Amend the Freedom of Information Act to allow less secrecy.

Ban the placing of secret holds on bills by senators.

Require that nonprofits always reveal their corporate sponsors when lobbying.

Demand that the Supreme Court do these three things:
— ban the alteration of laws via signing statements,
— establish the policy that the benefit of doubt given to departmental interpretations of law is not given to White House interpretations imposed on departments, and
— reject partisan and bi-partisan gerrymandering.

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