Untrodden Ground: How Presidents Interpret the Constitution.

• Author: Flaherty, Martin S.
• Position: Book review

Harold Bruff s Untrodden Ground: America's Evolutionary Presidency is by any measure a significant contribution to the debate over what may be the critical question facing American constitutionalism today. As witness recent books by Bruce Ackerman, (1) Eric Posner and Adrian Vermeule, (2) Jack Goldsmith, (3) and the relentless John Yoo, (4) executive power, for better or worse, today threatens to overwhelm traditional conceptions of the separation of powers. (5) Professor Bruff's work, among other things, seeks to show how the nation got to this point and, in so doing, fills a wide gap left open by most legal scholarship. It seeks to achieve this goal with a series of case studies showing the ways various presidents have expanded and shaped executive authority in ways that the Founders would scarcely recognize. Professor Bruff, a rigorous, respected, yet oddly underappreciated expert on executive authority, is ideal for the task. This combination of topic and author should find the literate "lay" audience he seeks, which can only be a good thing given the current level of political discourse. At the same time, the volume should make no less of a contribution to scholarly discourse as well.

Untrodden Ground advances a careful central thesis, which has several sensible corollaries. Its main task is to demonstrate how the development of the modern executive has been a story on ongoing custom, mostly occurring beyond the conceptions of the Founders and outside the case law of the Supreme Court. That is, Bruff argues that what accounts for the actual working relationship between Congress, the President, and the courts is not to be found in the text of the Constitution, its structure, the Founders' original understanding(s)-- and still less in the relatively few landmark separation of powers cases decided by the Supreme Court--but instead in the ways that they have worked out shared and exclusive powers over time. As Bruff further shows, the resulting arrangements have generally reflected a steady expansion of executive authority for many reasons. Presidents can take the initiative in ways that collective bodies such as Congress, and reactive institutions such as the courts, cannot. The nation's everexpanding foreign policy commitments and national security concerns tend to favor executive power. The President's role as the head of a political party in a system that the Founders never contemplated enhances executive power still further.

This is a story known to historians, such as Forrest McDonald, (6) and political scientists, such as Theodore Lowi, (7) even to historically inclined political scientists who became President, such as Woodrow Wilson. (8) Yet it is generally absent from legal scholarship. It would have been an achievement simply had Professor Bruff imported the work done by political science departments to law schools. He has, however, done far more. For one thing, he has updated that work. And, with rigor and imagination, he has made a contribution that would stand on its own.

Untrodden Ground does this by recounting how various presidents have actually expanded executive authority in practice. His first claim is descriptive, namely, that Presidents possess ample power to do great good or harm to the nation under a formulation of their power that affords them broad power of initiative yet does not allow them to ignore statutes. The book's second major claim moves to the normative. For Bruff, unilateral presidential assertions of power do not attain legitimacy unless and until receiving the assent of Congress and the people.

Untrodden Ground explores both points with a series of case studies. A case study approach keyed to various presidents is an ideal way to drive home the central idea that the shape of the modern presidency lies not with the Constitution but in the assertions...