Constitution

James Madison on Abuse and Usurpation

An essential distinction for understanding problems vexing the constitutional order

|The Volokh Conspiracy |

I have long found quite useful a distinction that James Madison once made between abuses of power and usurpations of power, and current debates have reminded me of it yet again.

Near the end of his life, James Madison observed with some discomfort the growing debate over the constitutionality of protective tariffs. Protective tariffs had been a relatively mild political issue during the early days of the republic, but in the years after the War of 1812 the question of how Congress should manage international trade became an increasingly explosive and partisan political issue. Much of that debate was a political and economic one about desirable public policy, but some of that debate wound up being framed in constitutional terms.

A nationalist faction that would eventually become the Whig Party argued that Congress had a plenary power to set tariff rates on imported goods and could readily use that power to impose duties so high that foreign goods would effectively be driven out of the American market. Another faction argued that protectionist tariffs were not only a bad idea but also outside the constitutional authority of Congress to impose. The Constitution required free trade. This faction eventually shaped the commitments of the Democratic Party that formed around President Andrew Jackson. Moreover, the free traders claimed to be the true heirs to the strict constructionist constitutional philosophy of the Jeffersonian revolution of 1800.

Madison was not too happy about being used to help legitimate the argument of the state nullification movement, and he took up his pen to push back in letters to various influential correspondents so as to distance himself and Thomas Jefferson from the arguments that would soon be championed by John C. Calhoun. In them, he made this key point that had some immediate uses for him but is also helpful for us.

In expounding the Constitution, it is as essential as it is obvious, that the distinction should be kept in view, between the usurpation and the abuse of a power. That a Tariff for the encouragement of Manufactures may be abused by its excess, by its partiality, or by a noxious selection of its objects, is certain. But so may the exercise of every constitutional power. . . . And the abuse cannot be regarded as a breach of the fundamental compact, till it reaches a degree of oppression, so iniquitous and intolerable as to justify civil war, or disunion.

Somewhat later, Madison wrote the same correspondent to correct his reading of a letter of Thomas Jefferson's.

It would seem that, writing confidentially, and probably in haste, he did not discriminate with the care he might otherwise have done, between an assumption of power and an abuse of power. . . It is evident from the context that his language was influenced by the great injustice, impressed on his mind, of a measure charged with the effect of taking the earnings of one, and that the most suffering class, and putting them into the pockets of another, and that the most flourishing class. . . . No Constitution could be lasting without a habitual distinction between an abuse of legitimate power and the exercise of a usurped one.

Or, when explaining why he did not join the public criticisms of President Andrew Jackson for ordering the removal of federal deposits from the Bank of the United States, an event that was central to the organization of the Whigs to counter what they saw as an imperial presidency, Madison wrote,

How, in justice or in truth, could I join in the charge against the President of claiming a power over the public money, including a right to apply it to whatever purpose he pleased, even to his own? However unwarrantable the removal of the deposits, or culpable the mode of effectuating it, the act has been admitted by some of his leading opponents, to have been, not a usurpation as charged, but an abuse only of power.

It was possible for a government official to abuse a power that he lawfully possessed, but that should be distinguished from cases in which a government official usurped a power that he never possessed in the first place. Abuses of power did not threaten the fundamentals of the constitutional order and were to be expected to occasionally arise in any political system that vested discretionary power in individuals who were entrusted to act for the common good. Usurpations of power – or what we might call violations of the constitutional rules – were more threatening and required a more dramatic response. Abuses could be checked through normal politics and by making use of the usual modes of political accountability, including public criticism, elections, and statutes. Usurpations required efforts to mark the act as outside the acceptable bounds of the Constitution and necessarily void.

Madison was worried that his contemporaries were losing the distinction because they were conflating mere abuses with usurpations, and as a consequence too quickly reaching for the heavy artillery to address the problem. We seem to have trouble with the distinction as well, but more because we lose sight of the possibility of constitutional abuses and only tend to recognize constitutional usurpations. It is entirely possible for government officials to abuse their discretionary authority in ways that go beyond simply making poor choices or in ways that reflect ordinary policy disagreements. Just because a court would not – and should not – strike down something as a violation of the Constitution does not mean that it is not open to criticism as constitutionally objectionable.

David Priess and Mark Zaid have recently noted a similar issue in thinking about Jared Kushner and his security clearance. As they note, "'can' doesn't mean 'should.'" We need to be able to recognize and talk about the possibility of a government official "improperly and inappropriately . . . using power he clearly holds the right to use." Accepting that a government official has the authority to take some action should not prevent us from recognizing that it is possible to "misuse that authority."

Sometimes preserving the constitutional order requires insisting that a government official does not have the authority to take some action. But sometimes it requires accepting that discretionary authority has to be vested somewhere, while still taking the steps necessary to check abuses of that discretionary authority when they occur. Constitutional norms and constitutional conventions are often put in place to discourage exactly this type of abuse of discretion. Shedding constitutional norms makes it more likely that constitutional powers will be abused. It might not mean the "end of western order" if constitutional powers are abused, but that does not mean that such abuses should be tolerated or facilitated.

NEXT: Executive Power and the Metonymy Error

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  1. The problem, of course, is how to draw a line between ‘abuses’, so defined, and mere policy disagreements.

    1. My thought exactly, that this blog post could be TL:DR as “abuse is in the eye of the beholder”.

    2. If you read the full letter Madison wrote, you’ll see that he suggested a series of things that, it seems, would help in line-drawing. I would guess they were not quoted in the post because OP does not agree.

    3. And to read the full letter, see the links I gave above.

  2. “improperly and inappropriately”

    Any President of the US is entitled to seek advice and assistance from whomever he/she wants.

    What is “improper and inappropriate” is to let lower level officials, in particular mere security bureaucrats, veto a potential advisor based on mere suspicions.

    1. Pre-cisely. The embedded Obama officials have plainly used all sorts of bureaucratic power against the Trump administration, including the security clearance procedure, so :

      We need to be able to recognize and talk about the possibility of a government official “improperly and inappropriately . . . using power he clearly holds the right to use.”

      has a delicious unconscious irony.

      We hear that FBI and CIA officials had doubts about Kushner’s foreign contacts. But we know the threshold for such FBI and CIA “doubts” – cos now we know they were actually conducting a counter intelligence investigation on the President himself, based on mere vapor from an opposition research product.

      1. “Mere security bureaucrats” have the specific job of investigating suspicions of candidates for sensitive positions. Until those suspicions are put to rest, they do not grant the clearance. That’s the way the system has always worked. You can twist that into a deep state fantasy, if you wish.

  3. I have, multiple times on this blog, made a similar distinction, between a “legitimate” Supreme Court decision, which makes what I might consider the wrong call on a subject properly before it (e.g. draws the wrong line on what’s a “reasonable” search, an “excessive” fine, or even what “interstate commerce” means), and an “illegitimate” decision, such as a decision which purports to decide whether or not a substantive law is consistent with “due process” based on nothing more than the court’s own considered judgment.

    One is at worst an abuse. The other is a usurpation.

  4. Certainly a line needs to be drawn, and I would hope that everyone would agree that disagreeing with the policy or strategy underlying an exercise of power doesn’t make that exercise illegitimate, and the relief for the aggrieved is the chance to elect somebody else next time.

    I am not so sure though that “abuse” vs. “usurpation” is a clear way to describe that line. The Constitution affords the President the power to grant pardons, and it isn’t clear that Congress has any authority to restrict it. Does that mean the President can sell them? Not a usurpation, it is a power explicitly granted, but certainly an abuse well beyond the normal bounds of political disagreement. i think the answer is harder to pin down, but basically comes down to: The grants of power are deliberately vague so that with great power comes a responsibility to exercise great discretion, but this necessarily means those responsible for policing abuses will also have great power necessitating the exercise of great discretion in that role.

    1. “Does that mean the President can sell them? Not a usurpation, it is a power explicitly granted, but certainly an abuse well beyond the normal bounds of political disagreement”

      How about something a bit less than that. Someone close to the President is being investigated or has even been indicted for some crimes. The person begins negotiating with the prosecution to give valuable information that would implicate the President or those close to him. The President pardons him to take the pressure off so he will not spill the beans.

      Is that an abuse?

      1. Interesting you would offer this as “something a bit less than that”, since your hypothetical still has the President granting a pardon for his personal benefit. That his benefit is staying out of prison rather than cash I don’t see as significant. So yes, an abuse.

        The meatier question though is whether it is an abuse that rises to the level of needing a remedy other than the one the ballot box provides. That was touched on in an earlier post. If we’re talking about impeachment, what are the criteria to decide whether to pull that pin? And if the situation doesn’t meet those criteria, is there some other “non-ballot-box” action that is appropriate?

        My answers would be that at least two situations justify impeachment: 1. Actions that subvert the Constitution, and 2. Actions like the above that corruptly use the office for the personal gain of the incumbent. These threaten the integrity of government itself, and impeachment is probably the only non-ballot-box response available.

        Contrast that with, say, a President who issues executive orders that exceed his constitutional authority. James Madison notwithstanding, Congress probably can and should control him through legislation rather than impeachment.

        What would your answer be, Bored?

        1. I agree it would be an abuse. But not impeachable.

          And just to clarify, I did not mean necessarily that the person would put the President in jail. Perhaps just embarass him or his family. It’s bad, I agree, but selling pardons seems worse to me.

          1. OK, I’ll grant that in your scenario the President might make a good defense that he was a victim of blackmail and undeserving of criminal liability, and I won’t dispute that a criminal abuse of his office is worse, but that wouldn’t necessarily change the impeachability equation from my perspective.

            The difference is that impeachment doesn’t have to be a punishment, any more than (to pick a topical topic) denying someone a security clearance is a punishment. A President who has demonstrated his vulnerability to blackmail is a liability and, once again, a threat to the integrity of government, and although Congress might choose to deal with the situation differently I believe it would be a legitimate use of the impeachment power if they picked that route.

      2. The Constitution affords the President the power to grant pardons, and it isn’t clear that Congress has any authority to restrict it. Does that mean the President can sell them?

        This sounds similar to the Texas case against Gov. Perry for vetoing some spending for a particular office unless the awful person in charge resigned. Turns out the legislature cannot apply conditions to the exercise of a direcly-granted power.

        Even in the case of a tit for tat bribe, the illegality was on the bribe, and not as a reason for the veto (would such a veto thus stand?)

        Anyway any president who pardoned himself would probably get away with it legally, but soon to be followed with an amendment.

        1. And for those who think he can’t currently, quit flailing and fix the Constitution now. Stop rationalizing depending on who you want to hurt politically, or not, and make the Constitution clear!

        2. “Even in the case of a tit for tat bribe, the illegality was on the bribe, and not as a reason for the veto”

          That’s an excellent point worth emphasizing. The Supreme Court has pointed out that the crime of bribery is in taking the bribe, whether or not the person acted on it, not in doing the deed that the bribe paid for. The latter may well be beyond the power of a court to punish (e.g., a vote by a Congressman or state legislator), but not the former.

          1. As I see it, the President has an unreviewable right to pardon, but that is a different question from whether he can pardon corruptly with impunity. If he takes bribes or other consideration for pardons, the pardons stand and there is nothing anyone can do about it. That doesn’t mean he can’t be impeached for it or, after he leaves office, prosecuted for it. Proof may be tricky, but assuming you can prove what you need to prove, I see no reason a President can’t be held to account.

    2. I think one approach to distinguishing is, Bill Clinton didn’t run on pardoning Marc Rich, or do so in year two of his administration. He made no noises about it, and did it on his way out. Why? Because he knew he wasn’t doing the right thing.

      Obama didn’t run on sending Iran $1.2B in small, unmarked bills, and notify Congress in advance of his intent do so so. He “structured” the payment so as to avoid reporting it in advance. Why? Because he knew he wasn’t doing what very many people would think was the right thing.

      Trump campaigned on building a wall, and isn’t doing it in secret. Because he knows that the people who elected him think he’s doing the right thing. So, this falls on the “policy difference” side of things.

      Bringing up the Kushner appointment and the attempt by his subordinates to block it by denying him a security clearance is just absurd. If there was an abuse there it was by the intelligence services.

      1. FYI, the Kushner clearance issue is not a good topic for you to use. He had (has?) extensive foreign personal contacts and foreign business deals – all which had to be closely reviewed. That was just for the collateral Top Secret clearance. If he was processed for Sensitive Compartmented Information (SCI), then that would be an additional process.

        If anything, it’s surprising he was granted the clearance so quickly.

        Trust me on this one, I know all about this (not the Kushner case but the general process).

        1. Re-posting:

          “Any President of the US is entitled to seek advice and assistance from whomever he/she wants.

          What is “improper and inappropriate” is to let lower level officials, in particular mere security bureaucrats, veto a potential advisor based on mere suspicions.”

          Some security gnome being able to veto the choice of a presidential advisor is worse than the microscopic risk that Kushner is a spy.

          1. Jeez, nobody veto’s anything; the President can have any advisor he/she/zhe wants.

            However, federal law (and executive orders — WHICH TRUMP CAN CHANGE AT ANY TIME – dictate the process and standards a person must meet in order to me granted a security clearance.

            Kushner went through the normal security clearance – the same as the rest of the President’s advisers.

            Also, looking a little more, it looks like the CIA denied him the SCI access I described above.

            1. “However, federal law (and executive orders — WHICH TRUMP CAN CHANGE AT ANY TIME – dictate the process and standards a person must meet in order to me granted a security clearance.”

              EOs provide guidance for subordinates, they don’t override presidential constitutional authority.

              CIA denied, Trump overruled. No abuse.

              1. CIA denied, Trump overruled. No abuse.

                Not even a $50 million infusion toward right-wing legal education could make that a call to be made by a random, disaffected, sovereign citizen patriot conservatiev.

              2. Imagine if President Obama had short-circuited the usual clearance process for an advisor in a sensitive position. I’m sure you would have defended presidential authority just as loudly.

  5. I would posit that selling pardons to convicts for $1 million in cash would be abusive.

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