The Lame Liberal Case for Expanding Executive Power

So much for the constitutional system of checks and balances.

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.