At Liberty Law Bog, Mark Pulliam: Taming the Imperial Presidency (describing a new book of essays from the American Enterprise Institute).
[T]he latest scholarly examination of executive power, The Imperial Presidency and the Constitution [ed.: Rowman & Littlefield Publishers, 2017], emerges from a 2015 conference hosted by the American Enterprise Institute. The book, coedited by AEI’s Gary Schmitt, and Claremont McKenna’s Joseph M. Bessette and Andrew E. Busch, collects seven essays by a variety of prominent experts, including Ralph Rossum, James Ceaser, and Adam White.
White describes the historical evolution of cabinet departments overseen directly by the President to early “independent” regulatory commissions (such as the Steamboat Inspection Service, the Interstate Commerce Commission, and the Federal Trade Commission), to the “energetic” executive branch agencies we are most familiar with today. Surprisingly, the major shift in the power and scope of federal agencies—made possible by Congress’ broad delegation of power to them—occurred not during the New Deal, but during a Republican presidency, that of Richard Nixon, and that power and scope continued to wax under succeeding administrations (both liberal and conservative).
In one of the ironies of history, White depicts then-professor Antonin Scalia advocating, in 1981, that administrative agencies flex their muscle to (in White’s words) “pursue Reaganite ends by Rooseveltian means.” The Chevron doctrine was part of the Reagan administration’s reassertion of presidential power over the administrative state—to prevent excessive interference by liberal judges on the D.C. Circuit. As they say, be careful what you wish for, because you might get it. Alas, the presidency changes hands, and with it the awesome power over the myriad regulatory agencies. The concentration of executive control over the administrative state increased during the administrations of Bill Clinton and George W. Bush, creating a “perfect storm” for abuse by the Obama administration, which White summarizes.
How can this be fixed? White candidly acknowledges that the “most straightforward way to reduce the administrative state’s power would be for Congress to do the work of taking delegated powers away from the agencies,” but concludes that this is very unlikely. Congress surrendered its regulatory power precisely to avoid accountability for the resulting regulations. Reclaiming its lawmaking prerogatives would require hard work, eating into congressional recesses and limiting opportunities for fundraising and campaigning for re-election. Congress is content with the status quo.
Fortunately, in recent years the Supreme Court has been rethinking the proper degree of deference to agencies’ interpretations of their own regulations. It is encouraging to see conservative scholars confront the reality of the administrative state and Republican Presidents’ role in creating it. White concludes:
Conservatives may have grown too complacent with the executive branch’s assumption of primary control over the administrative state. . . . Perhaps they should reconsider this presumption about the nature of the administrative state, and break the presumed link between the administrative state and the imperial presidency.
Here is the book description from Amazon:
Time and again, in recent years, the charge has been made that sitting presidents have behaved “imperially,” employing authorities that break the bounds of law and the Constitution. It is now an epithet used to describe presidencies of both parties. The Imperial Presidency and the Constitution examines this critical issue from a variety of perspectives: analyzing the president’s role in the administrative state, as commander-in-chief, as occupant of the modern “Bully Pulpit,” and, in separate essays, addressing recent presidents’ relationship with Congress and the Supreme Court. The volume also deepens the discussion by taking a look back at Abraham Lincoln’s expansive use of executive power during the Civil War where the tension between law and necessity were at their most extreme, calling into question the “rule of law” itself. The volume concludes with an examination of how the Constitution’s provision of both “powers and duties” for the president can provide a roadmap for assessing the propriety of executive behavior.
Posted at 6:47 AM