The Volokh Conspiracy
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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.