Bruce Ackerman: The dangers of an imperial presidency
[Bruce Ackerman is a professor of law and political science at Yale and the author, most recently, of "The Decline and Fall of the American Republic."]
It's easy to suppose that the Republican wave will put President Obama on the defensive. But that would be a mistake. House Republicans may repeat then-Speaker Newt Gingrich's blunder and shut down the government, but their other weapons are distinctly small-bore. The new congressional committee chairmen will predictably launch investigations into real or imagined scandals, but this will cause political embarrassment, nothing more.
In contrast, presidents control a formidable arsenal that often permits them to act independently of Congress. They can take military action against Al Qaeda in Yemen or other places to preempt a terrorist attack, or invoke sweeping emergency measures if an attack succeeds.
They can also act unilaterally to transform domestic policy. This was impossible during the first 150 years of the republic. Until the New Deal, the president had no permanent staff. He governed through his Cabinet, largely composed of independent potentates who often resisted his demands. But in 1939, President Franklin D. Roosevelt persuaded Congress to give him six special assistants. Seventy years onward, these six have become 500, and presidents of both parties have vastly increased their powers.
President Clinton took it a decisive step further. Without gaining statutory permission, he authorized his staff to issue policy directives to the rest of the executive branch. After the Democrats lost Congress in 1994, Clinton used these new powers to maximum effect. He typically went into the pressroom himself to announce his staff's regulatory initiatives with great fanfare. By directing the bureaucracy to implement his program, he could make an end-run around Congress, but at a grave risk to the rule of law. As Elena Kagan put it when she was a Harvard law professor: "Presidents, more than agency officials acting independently, tend to push the envelope when interpreting statutes" — generating a tendency toward "lawlessness."
These regulatory power grabs were facilitated by another development that began in the Nixon administration...
Read entire article at LA Times
It's easy to suppose that the Republican wave will put President Obama on the defensive. But that would be a mistake. House Republicans may repeat then-Speaker Newt Gingrich's blunder and shut down the government, but their other weapons are distinctly small-bore. The new congressional committee chairmen will predictably launch investigations into real or imagined scandals, but this will cause political embarrassment, nothing more.
In contrast, presidents control a formidable arsenal that often permits them to act independently of Congress. They can take military action against Al Qaeda in Yemen or other places to preempt a terrorist attack, or invoke sweeping emergency measures if an attack succeeds.
They can also act unilaterally to transform domestic policy. This was impossible during the first 150 years of the republic. Until the New Deal, the president had no permanent staff. He governed through his Cabinet, largely composed of independent potentates who often resisted his demands. But in 1939, President Franklin D. Roosevelt persuaded Congress to give him six special assistants. Seventy years onward, these six have become 500, and presidents of both parties have vastly increased their powers.
President Clinton took it a decisive step further. Without gaining statutory permission, he authorized his staff to issue policy directives to the rest of the executive branch. After the Democrats lost Congress in 1994, Clinton used these new powers to maximum effect. He typically went into the pressroom himself to announce his staff's regulatory initiatives with great fanfare. By directing the bureaucracy to implement his program, he could make an end-run around Congress, but at a grave risk to the rule of law. As Elena Kagan put it when she was a Harvard law professor: "Presidents, more than agency officials acting independently, tend to push the envelope when interpreting statutes" — generating a tendency toward "lawlessness."
These regulatory power grabs were facilitated by another development that began in the Nixon administration...