Constitutional arrogance.

Author:Gerhardt, Michael J.
Position:Symposium: The Bounds of Executive Discretion in the Regulatory State
 
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INTRODUCTION I. THE LANGUAGE AND METRICS OF CONSTITUTIONAL ARROGANCE A. Why Arrogance B. The Challenges of Choosing a Metric C. The Metrics for Constitutional Arrogance D. Constraints on Executive Discretion II. THREE EXAMPLES OF THE PUSH TOWARD CONSTITUTIONAL ARROGANCE A. Recess Appointments B. Removal Power C. Immigration III. THE BOUNDARIES ON PRESIDENTIAL DISCRETION A. The Limits of Judicial Review B. Public Opinion and the Stewardship Conception of the Presidency C. The Judgment of History Redux D. Constitutional Conventions CONCLUSION INTRODUCTION

My argument is that the presidency of the United States has the institutional disposition and capacity for constitutional arrogance--to take unilateral actions challenging its constitutional boundaries and extending its powers at other authorities' expense. While every federal branch is prone to push its respective powers to--if not beyond--its limits (which is why the Constitution requires "[a]mbition must be made to counteract ambition" (1)), there are several, unique forces incentivizing the presidency, as an institution, to have the disposition and the ability to aggrandize its authority. (2)

Part I of this Article will define the concept of constitutional arrogance, its possible benchmarks, and the forces pushing Presidents toward it. While the presidency was originally constructed to defend against legislative tyranny, (3) its power has grown offensively. Through historical practices (4) and hierarchical design, the presidency has developed the disposition and capacity to take advantage of constitutional indeterminacy and wrest power from other branches. When Presidents are threatening or achieve such expansions through unilateral actions, they are manifesting constitutional arrogance.

In Part II, I shift focus from the forces generally shaping presidential performance to specific illustrations of constitutional arrogance. I focus on three case studies--recess appointments, removal, and immigration--that demonstrate different ways in which Presidents have taken unilateral actions to expand their control over policymaking.

My perspective is grounded in institutionalism, which seeks to illuminate the context of presidential actions, to situate such actions within the arc of developing presidential authority over time, and to provide a basic language for understanding presidential power. (5) From this perspective, I suggest, in Part III, that the most potent constraints on constitutional arrogance are judicial review, public opinion, concerns about historical legacy, and conventions. Although law provides a conceptual framework and grammar, these considerations provide some resistance to, but do not always curb, the presidency's propensity and capacity to take advantage of constitutional indeterminacy and undertake unilateral action with the purpose or effect of aggrandizing itself and wresting power from other branches, particularly Congress.

  1. THE LANGUAGE AND METRICS OF CONSTITUTIONAL ARROGANCE

    In this Part, I explain the basic terms and metrics this Article will use. Arrogance is the most unique term that I use, but the others should seem familiar.

    1. Why Arrogance

      My focus is on the presidency as an institution. It has a discernible design and particular powers and prerogatives: its occupants share distinctive goals, their incentives are similarly structured, and their approaches to governing and institution building are similar. One such approach is the presidency's propensity and capacity for constitutional arrogance. Constitutional arrogance entails Presidents using their unilateral powers to break boundaries and displace other constitutional authorities. This definition is primarily functional, (6) depending not on motive or intentions but on the presence of unilateral presidential actions challenging, breaking, and extending constitutional boundaries on presidential authority. The actions are offensive, (7) undertaken in different manners, (8) all attempting to take charge or arrogate control over constructing or reconstructing constitutional meaning, (9) at the expense of other authorities.

    2. The Challenges of Choosing a Metric

      Different metrics can lead to different results. For example, as Eric Posner argues, the balance-of-power metaphor for assessing separation-of-powers questions can be easily manipulated to produce the analyst's preferred outcomes.10 For formalists, the metaphor is unnecessary because the only pertinent question is whether any exercise of power fits within the Constitution's fixed categories of permissible uses or allocations of power. For functionalists, the metaphor is superfluous since the principal concern will be balancing competing considerations. (11) If the metric instead is which branch is the most knowledgeable, the question Cass Sunstein poses, the answer is the presidency. (12) If the metric is which is the least partisan branch, a likely answer might be the federal judiciary, the only branch whose top officials are not subject to the electoral process and are instead guaranteed life tenure and undiminished compensation to protect them from direct political retaliation. (13) If the metric is which is the most efficient branch, the answer will not be Congress, since the Framers designed the lawmaking process to be "inefficient" and "cumbersome[]." (14) How we frame questions can shape the answers.

    3. The Metrics for Constitutional Arrogance

      To measure constitutional arrogance, we need a baseline. The Framers created the presidency to help fix the Articles of Confederation, which had no Executive, and to check Congress, which the Framers regarded as the most dangerous branch. (15) They did not expect presidential authority to grow, but it did. (16) Indeed, James Madison explained that the Constitution and other laws were necessarily "more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications." (17) The Framers' compromise, in fashioning the Executive, is a baseline against which we can measure what has emerged through liquidation--the office's growth through disposing its occupants and investing them with the unique capacity to take positive action. Merely being disposed to, or attempting to, expand power is not constitutional arrogance. When Presidents act upon their disposition to wrest power from other branches, they are manifesting constitutional arrogance.

      Liquidations--especially through historical practices--are a potent force that helps explain expansions in presidential power. The Constitution does not implement itself. Its implementation over time through historical practices has constituted federal executive power. (18) As political scientists Terry Moe and William Howell suggest, presidential power "has grown over time and become more consequential." (19) To be sure, the expansion of presidential power has not been perfectly uniform or linear, and some powers or prerogatives have been curtailed. (20) Presidents "move strategically and moderately to promote their imperialistic designs--and do so successfully over time, gradually shifting the balance of power in their favor." (21) Presidents rarely relinquish power they have acquired; instead, they fortify expansions in their authority over time. (22)

      A second factor shaping the growth of presidential power is the unintended consequences of the constitutional structure. The executive's unique design, with a single official at its apex, positions Presidents perfectly to take positive independent action and invests them with the capacity to do so. How often have we heard that the presidency is unique among the branches for its energy and efficiency? Even during the ratification campaign, this was a common defense of the office. (23) Presidents must act. Their constitutional duties extend beyond blocking or resisting policies they oppose. The forces propelling and keeping Presidents in office push them toward taking positive action, not inaction. (24) Indeed, Presidents are usually punished for inaction.

      Another consequence of the Executive's hierarchical design is its tendency to suppress vigorous disagreement within the office of the presidency. As a practical matter, there must be an end to debate within the Oval Office because the President's job is not merely to deliberate but to act. Too much dissent or disagreement cannot be long tolerated, much less rewarded. The structure facilitates groupthink; the closer people get to the top, the more incentives there are to cooperate with or acquiesce to the President. (25)

      Indeed, the hierarchical design of the Executive Branch necessitates rewarding agreement and punishing or discouraging dissent. The organization is such that loyalty to the President is frequently rewarded by advancement within the government. Loyalty may also be required, as loyalty to the President often correlates with one's position within the executive hierarchy, and dissent or disagreement is unlikely to lead to advancement. Hence, the presidency is often described as an echo chamber--filled with people inclined to tell Presidents what they want to hear. (26)

      A final factor, facilitating presidential disposition toward constitutional arrogance, is constitutional indeterminacy. "[T]he constitutional text on the subject [of the presidency] is notoriously unspecific," (27) which, like constitutional ambiguities or silence generally, invites Presidents to exploit the text to their advantage. Indeed, the President can move more energetically and decisively than the other branches to take advantage of constitutional silence and ambiguity, particularly in responding to intense political and time pressures. It is little wonder that these aspects of the presidency have allowed the presidency "to grow with the developing nation." (28)

    4. Constraints on Executive Discretion

      One response to the claim that Presidents may be disposed toward constitutional...

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