Vol. 28 No. 2 (April 2018) pp. 19-22RECLAIMING ACCOUNTABILITY: TRANSPARENCY, EXECUTIVE POWER, AND THE U.S. CONSTITUTION, by Heidi Kitrosser. Chicago, IL: University of Chicago Press, 2015. 283pp. Cloth $45.00. ISBN: 978-0-226-19163-8. Paper $36.00. ISBN: 978-0-226-56567-5.
Reviewed by Mark A. Graber, University of Maryland Carey School of Law. Email: mgraber@law.umaryland.edu
Once upon a time during the halcyon days before the 2016 national election, Americans debated the nature of presidential power. Most Democrats found persuasive justifications when President William Clinton and Barack Obama exercised presidential power, but not when Ronald Reagan, George Bush and George W. Bush exercised presidential power. Most Republicans found persuasive the justifications Reagan, Bush I and Bush II gave for exercising presidential power, but not the reasons Clinton and Obama gave. A few scholars, most notably Eric Posner and Adrian Vermeuele (2011), offered bipartisan defenses of unilateral presidential power. A few scholars, most notably Louis Fisher (2014), offered bipartisan criticisms of unilateral presidential power.
RECLAIMING ACCOUNTABILITY is a powerful, bipartisan manifesto for those worried about increasing presidential power to withhold information from the general public. Kirtosser offers a strong defense of what she terms “substantive accountability.” Proponents of formal accountability emphasize public capacity to remove officials whom popular majorities conclude are not performing their duties. Officials are constitutionally accountable when they must stand for regular election. Substantive accountability, Kitrosser maintains, requires that the public has the information necessary to make an intelligent decision on whether public officials should be held accountable. Under this framework, officials are constitutionally accountable when their actions and the justifications for their actions are known to the public. “The public and other branches of government must” not only “have the means to respond to presidential misdeeds,” she points out, but “the public and the other branches must have mechanisms to discover and assess such misdeeds in the first place” (p. 15). RECLAIMING ACCOUNTABILITY details how proponents of presidential supremacy and the unitary executive undermine presidential accountability by proposing doctrines that deprive the public of necessary information to make decisions on presidential performance.
Kitrosser favors what she calls “macro-transparency,” which is the idea that presidents should be allowed to keep secrets only when federal law permits or at least does not forbid the secret (p. 45). Presidents may refrain from divulging how suspected terrorists are being interrogated when Congress has by statute declared the matter classified. However, presidents may not claim the power to violate federal law and the power to keep that violation a secret from Congress and the general public. When Congress declares that suspected terrorists may not be tortured, the president may not authorize torture and certainly may not insist that evidence of torture be classified so that no one knows the president is not implementing a congressional program. This distinction between “shallow secrets” (p. 53), secrets the public knows exist, even though the public does not know the content of the secret, and “deep secrets” (p. 53), secrets the public does not know exist, is crucial to substantive accountability and what Kitrousser calls “contained (executive) energy” (p. 47). Congress may empower the president to engage in substantial independent activity and keep numerous secrets as long as federal law known to voters empowers the president to act independently and authorizes the president to keep particular secrets.
The necessary and proper clause provides the main constitutional foundations for substantive accountability. Kitrosser asserts that the congressional power to pass laws includes the [*20] power to determine how those measures should be implemented. “Executive activity” under the necessary and proper clause “is subject to legislative direction and restriction, including any statutory transparency requirements” (p. 43). Proponents of presidency supremacy and the unitary executive see the president as responsible for making every decision on how laws are implemented. In sharp contrast, RECLAIMING ACCOUNTABILITY points to framing evidence that the president was understood as merely responsible for ensuring that the persons charged by Congress with the responsibility for implementing policy were doing their jobs. The president is responsible for ensuring the post office delivers the mail, but Congress is free to specify how the mail will be delivered and who will report to Congress on whether the mail is being delivered. This vision of the president as an overseer explains why Congress may command both the president and other executive branch officers to provide the national legislature with the information Congress needs to legislate and determine the effectiveness of existing legislation.
The structure of the national government and First Amendment supplement the necessary and proper clause as foundations for substantive accountability. RECLAIMING ACCOUNTABILITY maintains that when Congress or private parties make requests for the information in cases not covered by federal statute, the general constitutional principles underlying substantive accountability call for courts to use a balancing test with a thumb on the side of disclosure. RECLAIMING ACCOUNTABILITY observes, “litigation and discovery . . . make unique contributions to substantive accountability, warranting a pro-disclosure presumption” (p. 58). The public interest in learning about government affairs should compel courts to provide strong First Amendment protections to persons who leak classified information. “Given the twin realities of massive overclassification and widespread selective leaks from the top,” Kitrosser points out, “a broad executive discretion to prosecute classified information leaks is a powerful means for the executive . . . to manipulate information flows” (p. 64).
Substantive accountability seems particularly important in light of recent revelations that President Trump is requiring all members of the executive branch to sign non-disclosure agreements (Davis, Haberman, Shear and Rogers, 2018). RECLAIMING ACCOUNTABILITY provides numerous tools for voiding such agreements. Congress, Kitrosser makes clear, has the power to make White House officials divulge the ways in which federal laws are and are not being executed. The public right to know under the First Amendment is likely to outweigh President Trump’s generalized desire for secrecy. Courts committed to substantive accountability may simply void such non-disclosure agreements on public policy grounds.
RECLAIMING ACCOUNTABILITY is an important and welcome addition to the literature on presidential authority and the separation of powers. Kitrosser is correct when she observes that too much scholarship on the presidency (and elsewhere) focuses primarily on formal accountability. Constitutional institutions, in this common view, are functioning within normal parameters as long as elections are regularly held and the government does not censor public speech. Constitutional democracy requires more. Accountability occurs only when voters are “able to access information necessary to assess” elected officials (p. 2). The public must know what government is doing and this requires that government secrets be sharply limited. RECLAIMING ACCOUNTABILITY offers a strong framework for thinking about how those secrets might be limited.
The main problem with this important text is that Kitrosser spends more time criticizing proponents of presidential supremacy and the unitary executive than developing the affirmative case for substantive accountability. Twice as many chapters are devoted to critiques as are devoted to development, and the chapter headings may underestimate the thrust of the book. Offense is easier to play than defense in constitutional law, which leads to the temptation to devote far more words to poking holes in existing theories than shielding one’s own from [*21] similar attacks. The case that the necessary and proper clause provides the constitutional hook for substantial congressional oversight over the executive is intriguing, but made too briefly. RECLAIMING ACCOUNTABILITY might have spent as many pages developing the vision of president as overseer as criticizing the vision of president as decider. First Amendment aficionados are likely to want more details on the free speech rights of leakers.
Structuralism as championed by Charles Black (1969) may provide a better foundation than originalism for substantive accountability. Kitrosser claims to be an originalist fully committed to what Lawrence Solum (2013) refers to as the fixation thesis, the view that all constitutional provisions acquire a fixed meaning at birth (p. 37). The problem, as Kitrosser freely acknowledges, is that framing thought on the executive branch was conflicted and ambiguous. Few constitutional provisions clearly cover problems of government secrecy. When issues arose in the 1790s, the framers disagreed among themselves. The powerful case RECLAIMING ACCOUNTABILITY makes is a structural one. Substantive accountability is best derived from the commitments underlying constitutional democracy, not the particular commitments underlying any particular constitutional provision when that provision was ratified or the vague commitments the framers had to accountability of some sort.
RECLAIMING ACCOUNTABILITY is simultaneously comforting and disquieting. The text promises happy answers as long as Americans follow the Constitution. Although the framers had little or no conception of the administrative state, Americans will achieve the optimum balance of publicity and secrecy as long as they are guided by the text and principles ratified in 1789. Professor Kitrosser nevertheless raises serious questions about whether Americans are likely to follow the text and principles laid down in 1787. The core principle of 1787 is that Congress be permitted to prevent executive secrecy, but she is aware that members of Congress often have little incentive to check the presidency (p. 6). The subsidiary principles require that federal courts exercise substantial powers to check the presidency, but Kitrosser is also aware that courts frequently lack both the incentive and will to challenge presidential authority (p. 7). Should the Trump regime consolidate, accountability is likely to be one more discarded principle of American constitutional democracy.
The 2016 national election and aftermath may nevertheless scramble debates over presidential power in ways that highlight the framework Kitrosser carefully lays out in RECLAIMING ACCOUNTABILITY. Given the relatively low support Donald Trump enjoys among highly educated citizens and his almost non-existent support in academia, any work that argues against presidential power is likely to be looked on favorably. This may be the season to argue, properly interpreted, that the Constitution limits the president to attending state funerals and making one speech a year. More seriously, some renegade Republicans in the legislative and judicial branches of the national government queasy about a Trump presidency may join with Democrats seeking to curb executive power and see all of Kitrosser’s recommendations as well thought out means for ensuring a transparent Trump presidency. The lesson may be that under present conditions, presidential secrecy is likely to be curbed only by a particularly unpopular and incompetent president.
REFERENCES
Black, Charles L., Jr. 1969. STRUCTURE AND RELATIONSHIP IN CONSTITUTIONAL LAW. Woodbridge, CT: Ox Bow Press.
Davis, Julie Hirschfeld, Haberman, Maggie, Shear, Michael D., and Rogers, Katie. 2018. “White House Job Requirement: Signing a Nondisclosure Agreement.” NEW YORK TIMES, March 21, 2018.
Fisher, Louis. 2014. CONSTITUTIONAL CONFLICTS BETWEEN CONGRESS AND THE PRESIDENT (6th ed.). Lawrence, KS: University Press of Kansas.
Posner, Eric A., and Vermeule, Adrian. 2011. THE EXECUTIVE UNBOUND: AFTER THE [*22] MADISONIAN REPUBLIC, New York, NY: Oxford University Press.
Solum, Lawrence. 2013. “Originalism and Constitutional Construction.” 82 FORDHAM LAW REVIEW 453-537.
© Copyright 2018 by author, Mark A. Graber.
