The President and the Constitution.

• Author: Strauss, Peter L.
• Position: Symposium: Executive Discretion and the Administrative State

That comprehensive and undefined presidential powers hold both practical advantages and grave dangers for the country will impress anyone who has served as legal adviser to a President in time of transition and public anxiety.... The purpose of the Constitution was not only to grant power, but to keep it from getting out of hand.... With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations. (1)

CONTENTS I. THE UNMEDIATED AND MEDIATED PRESIDENCIES II. OBSTACLES TO RECLAIMING ACCOUNTABILITY CONCLUSION In the immediate wake of the November 2014 by-elections, the New York Times quoted an e-mail characterizing their results as "the final chapter in making the president small." (2) As a political assessment, perhaps, but the results leave President Obama in precisely the position George Bush occupied following the by-election of 2006, and President Bush's actions in the following two years hardly suggest presidential shrinkage. January 10 saw his initiation of a troop surge in Iran, 20,000 additional American military committed to that campaign, while the war in Afghanistan continued unabated. Eight days later, on the day before the new Congress convened, he published an executive order amending Executive Order 12,866. (3) Executive Order 12,866 is the executive order under which, since the Clinton administration, the Office of Management and Budget's (OMB's) Office of Information and Regulatory Affairs (OIRA) had been supervising agency analyses of important proposed regulations' expected impacts, costs, and benefits. (4) President Clinton's order had required each agency to appoint an internal Regulatory Policy Officer (RPO) to coordinate interactions with OIRA. But the agency head, not the RPO, was to take personal responsibility for agency rulemaking. (5) The agency head appointed the RPO, and the order required that the RPO report to her. (6) The new Bush amendments deleted both "report to the agency head" and the agency head's need personally to approve rulemaking activity; now, instead, RPOs must be presidential appointees--that is, formally answerable to him--and "[u]nless specifically authorized by the head of the agency, no rulemaking shall commence nor be included on the Plan" without the RPO's approval. (7) The White House had effectively wrested control over agency rulemaking from the hands into which Congress had placed it. (8) The following two years were marked by continuing perceptions that White House politics were distorting or suppressing regulators' scientific judgments; in one example Professor Heidi Kitrosser notes in the new book that is one subject of this essay, (9) President Bush's OIRA suppressed greenhouse gas rulemaking, simply by refusing to receive the extensive scientific analysis and regulatory proposals the Environmental Protection Agency (EPA) had developed in the wake of the Supreme Court's decision in Massachusetts v. EPA. (10)

Perceptions of President Bush's politicization of administrative processes helped fuel President Obama's successful first campaign. Restoring the integrity of government science was among his first promises to the American people on assuming office. (11) Yet similar uses of White House offices to suppress regulatory efforts in the service of political ends marked the run-up to his reelection in 2012 (12) and perhaps the 2014 by-elections as well. President Obama's efforts to act on his own in the face of a dysfunctional Congress have been widely remarked upon, (13) and he used his first press conference following the 2014 by-elections to make clear that he expected to continue efforts to govern with the authority he has. (14) With loss of control over the Senate as well as the House, the coming two years seem likely to see for him, as they did for Presidents Clinton and Bush, further steps toward tight political control of government regulatory effort.

There are those who welcome tight presidential, political control over regulatory outputs, either as a necessary implication of the Constitution's vesting all executive power in a singular President, (15) or as an appropriate reaction to the exigencies of modern regulatory government. (16) As probably is well enough known, I am not among them. (17) Justice Jackson's memorable concurrence in Youngstown Sheet & Tube Co. v. Sawyer, drawing on personal experience, remarked as well as anyone could on the difficulties of extracting meaning from Article II's limited text, while noting "the gap that exists between the President's paper powers and his real powers. The Constitution does not disclose the measure of the actual controls wielded by the modern presidential office." (18) But Article II does not stop with the Vesting clause, and it does not make the President personally responsible for law-execution. Its only words about his relation to the executive Departments that Article I contemplates that Congress will create stand in sharp contrast to his power of "command" over the military; they say that he may "require the Opinion, in writing" of the heads of those Departments about how they anticipate exercising the Duties Congress has imposed on them. (19) He is to take care that they faithfully execute the laws. (20) In Youngstown Sheet & Tube, the Solicitor General's argument had emphasized, as some contemporary scholars and judges do, the Vesting clause of Article II. Jackson's response is worth recounting:

Lest I be thought to exaggerate, I quote the interpretation which his brief puts upon it: "In our view, this clause constitutes a grant of all the executive powers of which the Government is capable." If that be true, it is difficult to see why the forefathers bothered to add several specific items, including some trifling ones [citing the Opinions, in Writing clause]. The example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by George III, and [their] description of its evils ... leads me to doubt that they were creating their new Executive in his image.... In our own times, we can match it only from the executive powers in those governments we disparagingly describe as totalitarian.... (21) Having anything original to say in a paper about the President and the Constitution is a daunting prospect. It is in one sense a relief to be able to use this occasion to comment on two striking books shortly to be published by the University of Chicago Press. Harold Bruff's Untrodden Ground: How Presidents Interpret the Constitution builds on his lifetime of scholarship about separation of powers, in general, (22) and the presidency in particular (23)--a career that got its start in 1979-1981 when, for both President Carter and President Reagan, Bruff served in the President's law office, the Department of Justice's Office of Legal Counsel. Focusing particularly on presidential actions in relation to national security--foreign relations, military affairs, "leaks," and to a lesser extent domestic disturbances--Bruff moves one at a time from George Washington to Barrack Obama, exploring both the ways in which successive Presidents have built upon the understandings and precedents of their predecessors (trodden ground) and the ways in which personality and circumstance have influenced their taking new directions. (24) By the twenty-first century, it is painful and perhaps unnecessary to recall, Presidents could draw on this history and its interstices to permit others acting under their authority to engage in highly questionable interrogation techniques, to support massive surveillance regimes, and repeatedly to thwart the exercise by government officials of the duties Congress had conferred not on him but on them--all under a blanket of secrecy whose corners were lifted only by "leaks" whose source their administrations often heatedly pursued. (25)

Heidi Kitrosser's Reclaiming Accountability: Transparency, Executive Power, and the U.S. Constitution culminates the work of a younger scholar whose scholarship has focused on White House secrecy and its implications for presidential accountability. (26) Her book examines both the presidential supremacy arguments grounded in those asserted needs for secrecy and today's arguments that the Constitution envisions a strong "unitary executive," one empowered to take all executive decisions from the White House. (27) But, she argues, power in a rule of law culture requires substantive accountability--ambition checking ambition, government actors ultimately answerable to the people. Originalist arguments for presidential supremacy and the strong unitary executive, she writes, overlook important elements of the framing underscoring this need. While acknowledging the changed circumstances of our national government and of its place in the world that have given these arguments such impetus, and the difficulties as well of effective response, she essays a careful exposition of counterarguments that could help to restore actual accountability of executive government to the people.

There is no doubt about the changes both these books build on, as many have noted before me. From a normative perspective, in my judgment, Professor Kitrosser puts the contemporary challenge just right. From a descriptive perspective, reflecting the exigencies of the day and President Clinton's own struggles with Congress, then Professor, now Justice, Elena Kagan put it well in her influential essay "Presidential Administration":

[A] line [between oversight and command] remains, and by so often asserting legal authority to direct regulatory decisions, President Clinton crossed from one side of it to the other.... [T]he explicit and repeated assertion of directive authority probably alters over time ... the 'psychology of government'--the understanding of agency and White...