TABLE OF CONTENTS INTRODUCTION I. INSTITUTIONAL EXPLANATIONS FOR EXPANSION OF PRESIDENTIAL AUTHORITY II. THE LOGIC OF PARTISAN PREFERENCES FOR PRESIDENTIAL AUTHORITY III. IMPLICATIONS IV. HOW TEMPORAL HORIZONS AFFECT THE LOGIC OF DISTRIBUTIVE PRESIDENTIAL AUTHORITY V. THREE PATHS TO PARTISAN PRESIDENTIAL POWER WITH ILLUSTRATIONS A. Short-Term Horizons: Presidential Influence over Administrative Agencies B. Differing Long-Term and Short-Term Horizons: Intraparty Conflict over Presidential War Powers C. Asymmetries over Both the Long Term and Short Term: The Domestic Incorporation of International Human Rights Commitments CONCLUSION INTRODUCTION
This Essay argues that politicians may sometimes strategically manipulate the contours of the President's constitutional authority in order to achieve partisan objectives. At first glance, the notion that societal groups may ever stake out conflicting visions of presidential authority seems puzzling. After all, it is difficult to envision how any view of presidential authority can systematically confer one-sided benefits on any partisan or interest group, because presumably each group will sometimes lose and gain from any particular constraint on presidential authority. Thus, given the implicit veil of ignorance that underpins the separation of powers, one may think that the incentives of judges and elected officials to embrace visions of presidential authority that advance the specific objectives of any political party will be blunted. Unsurprisingly, much of the contemporary scholarship on presidential power has ignored partisan factors and has instead focused on how incentives inherent in the institutional nature of the various branches of government shape preferences for expansive presidential authority. (2)
This Essay suggests a contrary view: if certain conditions hold, partisan power holders can often calculate how an expansive or narrow view of presidential authority over discrete issues is likely to affect their electoral and ideological objectives. More specifically, staking out partisan positions on the allocation of presidential authority is likely to be rational when such authority can be unbundled on an issue-by-issue basis. (3) Under these conditions, parties are likely to favor a vision of presidential authority that will enable them to carry out those issues in which they have an electoral advantage over the opposition, but that make it more difficult for the opposition to carry out its favored issues. For instance, when the presidential authority to negotiate human rights treaties can be effectively unbundled from the war-making power, Republicans may prefer more constraints on the President's treaty-making authority in human rights, but less on his war-making authority. (4) By contrast, Democrats or left-leaning constituencies will likely adopt the opposite set of preferences regarding presidential authority on war and human rights. Similarly, Democratic administrations may be more willing to indulge a greater role for courts in adjudicating human rights controversies even at the expense of the President's interpretive discretion over international law, whereas Republican administrations are more likely to view such adjudications as interfering with the President's flexibility to conduct foreign affairs. (5)
Finally, contrary to the conventional wisdom, this account assumes that these partisan differences over the scope of presidential authority may often persist regardless of which party occupies the White House. For the most part, rational choice accounts that emphasize the primacy of institutional preferences assume that members of Congress will tend to support expansive authority of a copartisan President; otherwise, they will tend to act as a force of opposition. (6) Thus, as long as the President's party enjoys a majority in both houses of Congress, the received wisdom assumes that he will enjoy greater flexibility to pursue his policy agenda. But in the postwar era, illustrations abound when partisan goals embraced by members of Congress conflict with the institutional prerogatives of a copartisan in the White House. (7) It was Eisenhower's fellow Republicans in the Senate, for instance, who proved to be the biggest thorn in his side regarding the postwar controversies over the scope of the President's authority to negotiate international treaties. (8) Similar logic also explains why Clinton, a Democrat, found a much more hospitable reception from the Republican opposition in Congress with respect to his international trade authority, but often faced resistance--if not outright hostility--from congressional members of his own party. (9) Finally, it was Newt Gingrich, the Republican Speaker of the House, who attempted to summon his fellow Republican colleagues to give the Democrat Clinton more war-making powers. (10) In all these examples, the conventional wisdom that copartisans in Congress are more likely to show solidarity for their President's expansive use of authority than the political opposition is contradicted, yet the literature does very little to help us understand these anomalies.
To be clear, this Essay is neither claiming that partisan preferences over presidential authority will usually trump empire-building considerations nor is it suggesting that such strategic partisan factors pervade our constitutional politics. Rather, the Essay's objective is much more modest. It simply suggests that such partisan considerations often prove to be frequent enough to be of theoretical interest. And more importantly, if the polarization of the parties' respective electoral bases continues along the same upward trajectory that it has since the Nixon administration, (11) it is very likely that the partisan divisions over the allocation of presidential authority will become exacerbated. This Essay begins with a preliminary examination of the institutional literature that attempts to explain interbranch conflicts over constitutional authority. It then explores the conditions under which political parties are likely to develop conflicting preferences over presidential authority. It concludes with some examples that illustrate this partisan dynamic from the postwar era.
INSTITUTIONAL EXPLANATIONS FOR EXPANSION OF PRESIDENTIAL AUTHORITY
There is an established rational choice literature that attempts to explain changes in the allocation of constitutional authority over time among the branches of government. But hardly any of this literature assumes that political parties play a key role in these developments. Presumably, such theories assume that uncertainty about how the separation of powers affects discrete policy outcomes makes it unlikely that parties can have coherent preferences over the scope of presidential power. Rather, much of the literature assumes that Presidents often have intrinsic institutional reasons for expanding their authority, but that the combination of frequent elections, narrow constituencies, and collective action problems often make it unlikely that members of Congress will have an incentive to protect or expand their constitutional prerogatives. (12)
For instance, Harold Koh has suggested that in the contemporary era the President always wins interbranch conflicts over foreign affairs because he seizes the initiative and that Congress is unable to stop him because of poor and inadequate legislative tools. (13) Similarly, Aaron Wildavsky observed thirty-five years ago that the President tends to dominate foreign policy not only because of the unique nature of his office but also because "[his] potential opponents are weak, divided, or believe that they should not control foreign policy.'' (14) More recently, Daryl Levinson has opined:
Because individual presidents can consume a much greater share of the power of their institution than individual members of Congress, we should expect them to be willing to invest more in institutional aggrandizement. Presidents are also less constrained than members of Congress by the need to stand repeatedly for reelection, leaving them considerable freedom to pursue their own agendas. (15) At least one commentator has connected the growth of presidential unilateralism to the increasing partisan polarization of Congress since the Watergate era. (16) Finally, Professors Howell and Moe have concluded: "[P]residents have strong incentives to push this [constitutional] ambiguity relentlessly ... to expand their own powers, and ... for reasons rooted in the nature of their institutions, neither Congress nor the courts are likely to stop them." (17)
To be clear, partisanship is not wholly irrelevant to such institutional accounts, but it often plays a more subtle and indirect role. For instance, these theories often assume that copartisan members of Congress will prefer to expand the policy discretion of their President during united government, but will prefer to constrain such discretion during periods of divided government. (18) Here, because the President and his copartisans in Congress share common ideological beliefs and often have their electoral fortunes linked, it is assumed that the President's copartisans in Congress stand to benefit from greater presidential discretion, whereas the opposition has every incentive to oppose expansive presidential authority. (19) The implication of this line of reasoning for normative institutional design is fairly significant. For instance, Daryl Levinson and Richard Pildes have recently suggested that partisan competition stemming from divided government ought to be treated as a substitute for Madison's vision of interbranch competition, (20) especially because Congress often lacks much of an institutional incentive to act as a bulwark against growing presidential authority.
The problem, I suggest below, is that these institutional accounts do not capture the full range of pressures that influence the preferences of elected officials...