Bruce Ackerman (of “constitutional moment” fame) has an interesting post, responding to an interesting series of posts, on the increasing capacity of the executive branch to disobey the law. The capacity for presidential lawlessness has increased, he argues, because the three checks on executive disregard of the rule of law previously extant in America – checks emanating from (1) the Executive itself, (2) Congress and (3) the Judiciary – have all eroded.
The first check came from the different departments within the executive. Ackerman says that until 1939, when FDR created the White House staff, presidents exercised their executive power through Cabinet Secretaries who, because of their institutional position and the requirement that they be confirmed by the Senate, were comparatively independent, and comparatively inclined to listen to the career lawyers in their departments. Since 1939, and especially since Richard Nixon created the Domestic Policy Council, the exercise of executive power has concentrated more and more in the White House staff, which, because of its institutional position and the fact that it serves at the pleasure of the president, is composed partisan ideologues who regard departmental lawyers as “legalistic obstructionists” who thwart their President’s vision.
Concomitant with the rise of the White House staff, and again precipitated by the Nixon Administration, is the rise of the White House Counsel as a competitor to the Department of Justice. The WHC is stocked with highly competent lawyers who are also political hacks. They are thus willing and able to supply sufficiently plausible legal rationales for presidential power grabs – rationales that, presumably, both provide cover to sympathetic judges looking to sign off on a politically congenial program and precipitate shifts in legal assumptions, as they are amplified by movementarians, think tankers, and other partisan adjutants in the public policy world. When the presumption is that the executive, through the WHC and its public policy adjutants, can sua sponte shift the law to accommodate each additional power grab, then the Judiciary’s check on presidential power is no more.
Finally, “the increasing public acceptance of Gallup polls as authoritative indicators of the president’s claim to speak for the People…paves the way for President Righty or Lefty to take drastic steps in the name of the People – pointing to his high poll numbers to justify unilateral action if Congress doesn’t succumb to all of his extreme demands.”