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Madison's Nightmare: How Executive Power Threatens American Democracy ReviewThis book is much more about what the problem is than how to solve it, but the two things are not really separable, and the analysis of the problem here is invaluable.
This is a detailed and extensively researched look at the interactions among the three branches of our federal government, and the checks and balances employed - or the lack thereof. Shane takes a long view and sees 1981 and the Reagan presidency as the most radical break with the past, albeit the creation of a new era dramatically advanced by George W. Bush, following lesser advances by his father and Bill Clinton. Shane looks at domestic governance as much as foreign policy, and examines the relationships that departments and agencies have with the White House and with Congress.
It is now routine for the White House to send cabinet secretaries to swing electoral districts for political purposes. No department head sneezes without the president's permission. And the entire federal government is thought of as part of the executive branch -- with the exception of Congress, which is left to constitute the legislative branch all on its own. But look at how the Constitution viewed things. It devoted Article I and over half the length of the entire Constitution to Congress, which it gave virtually every power conceived of, touching on many of the current departments of the federal government, and then explicitly stipulating that Congress should have any other necessary powers as well. Congress, according to the Constitution, has the power . . .
"To make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States or in any Department or Officer thereof."
Stubby little Article II gives very few powers to the president, nowhere suggesting that he or she should have ownership or command over the various agencies of government, and in fact not mentioning any other than the military, except to say that the president can make appointments, and to say this:
"He may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices."
This does refer to the departments as "executive departments," and Article II does begin by giving "the executive power" to the president. But it's worth pausing and stepping outside our own era for just long enough to wonder what "executive" means. Article II also says what the president is required to do, namely:
"He shall take Care that the Laws be faithfully executed."
Congress, until relatively recently, was understood to be central to our government. Only Congress is given the power to borrow money, to regulate commerce with foreign nations, to handle immigration and bankruptcies and the creation of money, transportation, the post office, the punishment of crimes, establishment of courts, defining and punishing crimes by other nations, declaring war, ending war, raising and spending money, creating and maintaining and overseeing the military, repelling invasions, and so on. These days, the White House is considered central to everything. Laws are made by "executive order" (an "executive order" is something like a faithful betrayal, a self-contradiction), by "signing statement" (a "signing statement" is a statement that one is NOT signing a bill as written) and by drafting legislation in the White House and insisting that Congress pass it out of loyalty to the president.
Imagine the absurdity today of suggesting that a president has the right to ask department heads to report on what they are doing. They are doing what he has told them to do. What Shane suggests is not that the EPA or the Department of Labor should be moved from the executive branch to the legislative, but that there are appropriate roles for both Congress and the president, not just the latter.
I cannot touch here on all of the rich and informed discussions in "Madison's Nightmare," which include perceptive condemnations of the secretive and unaccountable decision-making processes that led to wars in Vietnam and Iraq. I would fault Shane here only with too much generosity in assuming that the presidents in these cases were trying to learn anything that they failed to learn. But Shane is right that Congress must not only have the power to declare war or refuse to; it must also have the power to make public the deliberations that precede that decision. Shane is wrong, however, in my opinion -- and this seems to follow from his analysis -- in omitting from his recommendations at the end of the book any sort of accountability, prosecution, impeachment, or punishment. He does propose that the lawyers who facilitated torture be fired. However, they are -- with a couple of key exceptions -- already out of office. And why would someone as smart as Shane believe that lawyers should be dismissed for writing what they were asked to, but propose no penalty whatsoever for the president or vice president who did the asking? Indeed, how does Shane not notice that (had his book come out earlier) it would have been the torturer in chief who would have had to dismiss his own obliging lawyers?
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