Barack Obama

The Lame Liberal Case for Expanding Executive Power

So much for the constitutional system of checks and balances.

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How much power should a president have?

Anyone who thought America settled that question late in the 18th century with the ratification of the Constitution hasn't been paying attention to the news.

The Speaker of the House, John Boehner, has hired law professor Jonathan Turley to represent the House in a lawsuit over President Obama's unilateral changes to the health care law.

Turley explained on his blog, "Unilateral, unchecked Executive action is precisely the danger that the Framers sought to avoid in our constitutional system….Without judicial review of unconstitutional actions by the Executive, the trend toward a dominant presidential model of government will continue in this country in direct conflict with the original design and guarantees of our Constitution." 

Obama's executive action to defer deportation of certain illegal immigrants has generated opposition from Republican members of Congress, including Senator Cruz of Texas, who talks about a "lawless president."

And as if health care and immigration were not enough, a New York Times editorial calls for Obama to relax sanctions on Cuba "through executive authority." If it were a Republican president mulling the use of "executive authority" to tighten sanctions on Cuba, no doubt the Times would be thundering about the Constitution and enlisting Professor Turley.

Into this fight wades a Harvard Law School professor, Cass Sunstein, with a new paper that attempts to provide a theoretical rationale for increased executive authority and discretion. Professor Sunstein, who served in the Obama administration, offers his essay with the warning that it is "subject to substantial revision" and was "originally intended for oral presentation" as the keynote lecture at the University of Chicago Legal Forum.

Sunstein's essay defines and describes a new ill he calls "Partyism." "In some ways, partyism is now worse than racism," he writes, citing research that Americans are more comfortable with interracial marriage than with the idea of their children marrying outside their own political party. The essay goes on to blame partyism for legislative gridlock, and then—here is where it gets really interesting—to propose a cure.

Sunstein writes, "In many cases, the best response to partyism lies in delegation, and in particular in strengthening the hand of technocratic forces within government."

In other words, give the executive branch some flexibility: "In my view, institutional characteristics of the executive branch justify a degree of trust, at least as a general rule. The reason is that the executive branch—again as a general rule—tends both to have a great deal of technical expertise and to treat technical issues as they should be treated. Ironically, it has a degree of insulation from day-to-day politics, enabling it to focus on questions as specialists do."

Sunstein warns against misunderstanding: "I am not suggesting that the President can make war on his own, violate constitutional restrictions on his authority, or otherwise abandon the constitutional plan."

Sunstein's argument somewhat echoes that made by the lawyer-activist Philip K. Howard, in his book The Rule of Nobody, that "American government is failing not because officials who deal with the public have too much power, but because they have too little."

The claims about the "technical expertise" and "insulation from day-to-day politics" of the executive branch have a darkly comic tinge to them, doubtless unintended, in the era of Lois Lerner's IRS emails, the dysfunctional Obamacare website, and headline-grabbing but legally groundless insider trading cases brought by President Obama's top federal prosecutor in New York.

Sunstein notes that, "in practice, people's judgments about the authority of the executive are greatly and even decisively affected by their approval or disapproval of the incumbent president. Under a Republican president, Democrats do not approve of the idea of a discretion-wielding chief executive, enabled by deferential courts."

In other words, how much power a president has depends on how much we, the voters, like him. It's hard to write that into law. The Constitution's text is the same whether a president was elected in a landslide or a photo finish, whether his poll numbers are soaring or in the basement.

Fortunately, the Constitution imposes limits even on popular presidents. Perhaps the most formidable of these is that if voters are sufficiently fed up with a president's policies, they can throw him or members of his party out of office in the next election. Professor Sunstein's favorite technical specialists of the executive branch don't face those electoral tests, which is one of many reasons to greet skeptically any proposal to give them more power than they have already.

NEXT: Will the Rohrabacher Amendment Actually Block Federal Prosecution of Medical Marijuana Patients and Their Suppliers?

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  1. Not rtfa cause I have no interest in what Cass Sunstein thinks about anything. Ever.

    kthxbai

    1. You spelled Ass Cuntstain wrong. Other than that, I totally agree.

    2. She cares what you think.

      1. Cass Sunstein is a man.

        1. Are you sure about that?

          1. Unless she’s doing a good job of faking it.

            http://en.wikipedia.org/wiki/Cass_Sunstein

  2. I think the partisans of a man known to history as Octavian made similar arguments about effective government in favor of goving him more power. We do well to remember that the word “Prince” is derived from a word which ostensibly only meant “First Citizen”.

    1. And “Caesar”, “Kaiser”, “Czar” and “Tsar” all come from someone’s first name, Julius Caesar.

      1. That was his cognomen. Family name.

  3. Don’t sit there and screech, just impeach.

  4. Sunstein writes, “In many cases, the best response to partyism lies in delegation, and in particular in strengthening the hand of technocratic forces within government.”

    You know who else thought this, while exercising power between the
    Rhine and the Oder? Top. Men. everywhere.

    1. It’s worthwhile to reflect on what the main actors said then. Here are two quotes from the two main characters:

      It would harm and impede the goal of improving our nation if the executive branch had to negotiate with, and ask parliament for, permission for every measure it wanted to implement.

      And:

      Today, we cannot lose ourselves in empty speeches, our guiding principle needs to be quick, constructive, and decisive action, and such action requires unity. Faced with the burning need of the people and the nation, faced with the monumental task of rebuilding our nation, faced with the clouds that surround our nation, we reach across the aisle to our former opponents to ensure the rise of our nation.

      The first quote is from Hitler, the second from the Prelate Kaas, head of the conservative Christian Center Party, which cast the deciding votes that effectively made Hitler dictator of Germany.

      (Kaas was an incompetent and arrogant Catholic academic; may he burn in hell for the evil he has caused.)

  5. Ah the argument of the dictator and absolute monarchs. Nice to see Sunstein in such good company.

    In my view, institutional characteristics of the executive branch justify a degree of trust, at least as a general rule. The reason is that the executive branch?again as a general rule?tends both to have a great deal of technical expertise and to treat technical issues as they should be treated. Ironically, it has a degree of insulation from day-to-day politics, enabling it to focus on questions as specialists do

    TOP MEN!

  6. “with the warning that it is “subject to substantial revision”

    …depending on the events of November 8-9 2016

    1. It’s not like we didn’t already know Ass Cuntstain was who he was, but this is like a new level of cuntstaininess. What a evil shit weasel, we’re supposed to take this guy to be a serious intellectual, that is a terrible example of the level to which the popular intellect has been reduced by the left.

      He’s like a villain from an Ayn Rand book, a smarmy intellectual worm who calmly presents the world with a plan to enslave it. We would already be living in Atlantis *if* people like Cuntstain got the answer they deserved: a proud rejection on moral terms, abandonment, oblivion. Sadly, that is not the case; the left has trained the people of the west to accept collectivism and statism.

      Man fuck this guy and the horse of stale collectivist dogma he rode in on.

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  8. “In many cases, the best response to partyism lies in delegation, and in particular in strengthening the hand of technocratic forces within government.”

    Why stop there? I mean, with racism you can’t change people’s races, but with *parties* . . .

    Go to a one-party state, everyone is the same party, the ‘problem’ of ‘partyism’ is solved.

    Along with this – cut down on the number of representatives and senators. With say a half-dozen senators and maybe twice that in representatives you have have a small enough group that they can form strong inter-personal links and better working relationships.

    Then we cut down the number of states and territories – too much competion, too much ‘race-to the bottom’. Go with 6 major administrative zones (with one senator and 2-3 representatives) whose job is to draft legislation for the president’s approval and assist the president in implementing this legislation.

    1. I’d be for merging New England into one state.

      1. Get him, Free Staters.

      2. Umm, no.

        Actually, fuck no.

        Connecticut and Massachusetts and RI can make their own shithole of a state. I’d be down for creating a Maine, New Hampshire, and Vermont State with New Hampshire’s laws.

        Call it Vermaineshire.

        1. Verminshire?

  9. How else will our wise overlords rule us with benevolence unless we grant them godlike powers?

    It’s for our own good, you ungrateful peasants.

    1. I ask for so little. Just fear me, love me, do as I say and I will be your slave.

  10. and as soon as a Republican is elected president, the case for expanding executive power magically disappears.

  11. Cass Sunstein needs to visit Tanzania or any of the other countries that decided parties were bad, so they’d just have one party, and it would be technocratic and work ever so well.

    Also, Cass was in charge of making smart cuts to government. He could only find a few things to cut. Sounds pretty incompetent and not technocratic material.

    If I were a smart technocrat, I’d “nudge” him to a position as salt mine night shift associate supervisor.

  12. Nothing new here. Just a warmed-over version of the traditional Progressive argument in favor of administrative agencies staffed by “experts” applying their “technical expertise” to issues while being “insulated” from “politics” and those pesky “stupid” voters.

  13. I said Republican crybaby obstructionism would lead to greater exercises of power by the president years before it started happening. I’d say it was inevitable if not palatable. If Republicans in Congress don’t like courts and bureaucrats taking on the responsibilities of basic governance, there is an easy remedy to that.

    1. Tony, obstructionism is supposed to happen. It’s built into the system, and for excellent reasons. The founders had seen what happens when a head of state gets a bee in his bonnet, and hadn’t liked it.

      As for “basic governance”, we would need ten Congresses in a row furiously cutting whole programs before we would be back to basic governance. 90 percent of what the Feds do is “wouodn’t it be nice if the government did (blank)”. Which might be all very well, but on the whole the Feds do it badly.

      All governments do them badly.

      Build and maintain the roads, deliver the mail, defend the country. Three fairly simple tasks. I’d like to see the Feds concentrate on them until such time as they have them under control. Then we could see what else they can do without dropping any plates.

      1. More like two basic function. The post office is, imo, redundant in an age of email and FedEx.

        1. I’d add in justice system, something they also fuck up pretty well.

          Mail, hah, how quaint.

    2. You really don’t understand the constitution, do you?

      1. You really don’t understand who you’re talking to, do you?

      2. This as directed at Tony.

        1. Exactly…a raging moron sycophant to any/all Prog objectives.

    3. So, if Republicans (in this case, the Dems play the same games) don’t want the president stomping on the constitution to get his way, they should just appease him…effectively nullifying the balance of powers in it anyway?

      Just the sort of logic I’d expect from you.

    4. Presidential powers have been increasing for longer than any of us have been alive.

      Tony is all of a sudden Nostradamus.

      Way to go Tony, way to go.

    5. I said Republican crybaby obstructionism would lead to greater exercises of power by the president years before it started happening.

      Why do you think people vote for Republicans when there is a Democratic president? We want obstructionism.

      Besides, Democrats were obstructionist too during the Bush presidency.

    6. Yep, the Executive branch didn’t start taking extra powers until the Obama administration. The Unitary Executive, John Woo, and GWB were all about executive modesty.

      Could it be any dumber?

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