Vol. 30 No. 9 (October 2020) pp. 135-140THE LIVING PRESIDENCY: AN ORIGINALIST ARGUMENT AGAINST ITS EVER-EXPANDING POWERS, by Saikrishna Bangalore Prakash. Cambridge, MA: The Belknap Press of Harvard University Press, 2020. 337pp. Hardcover $29.95. ISBN: 9780674987982.
Reviewed by Allen C. Sumrall, Department of Government & School of Law, University of Texas at Austin. Email: asumrall@utexas.edu.
In THE LIVING PRESIDENCY: AN ORIGINALIST ARGUMENT AGAINST ITS EVER-EXPANDING POWERS, Saikrishna Prakash takes on a topic indelibly fascinating and vexing to political scientists and legal scholars alike: the modern presidency. Like the other institutions of government—not to mention the entire American polity and constitutional order—the presidency has changed over time. Today, the president sits atop an enormous executive apparatus that controls large arenas of federal policymaking. To many, it appears that a government designed to be centered around the legislature is now focused around the presidency with Congress there to simply work out the details of the president’s policy agenda. These concerns are particularly acute with President Trump, who has made clear his disdain for the strong but limited constitutional presidency (Muirhead & Tulis 2020, p. 341; Nelson 2014; Thach 1969).
Prakash contributes to an established body of literature on the topic (Skowronek 2020; 1997; Suri 2017; Nelson 2014; Kernell 1997; Neustadt 1991; Tulis 1987; Schlesinger 1974). Though much of the book is descriptive, Prakash offers two contributions, one theoretical, the other prescriptive or normative. His theoretical contribution is his attribution of the modern presidency to so-called “living constitutionalists,” who Prakash seeks to discredit, therefore vindicating originalism. The book ends with his second contribution: a detailed list of ways in which Congress or the courts could begin to rein in the modern presidency. Some are originalist, but some are not. Despite the title of the book, Prakash provides little justification for why originalism, or an original understanding of the Constitution, should be favored over any other method of cabining the modern presidency. Ultimately, though Prakash’s theoretical contribution is plagued with difficulties, his normative recommendations are worthy of real consideration and debate. Many of the policy recommendations actually demonstrate the shortcomings of the theoretical description of the modern presidency, but in ways that point to both a stronger theory and the ways we can solve the constitutional dilemmas the book highlights.
Throughout American history, presidents have expanded their power and status to encroach on the prerogatives of Congress and the courts. As a result, what to many resembles the normal condition of constitutional politics is actually a sharp departure from the Founders’ presidency. Prakash correctly explains that the Constitution’s framers did “not fashion a Constitution that authorized presidents to amend and expand their constitutional office” (p. 1). A presidency with “no fixed limits” is cause for alarm—a presidency without limits is no presidency at all, and we no longer have a constitutional system of government, but a monarch or imperial despot (p. 3). [*136]
In Prakash’s telling, we are at no immediate risk of losing all constraints on presidential power. Nevertheless, he observes that the modern presidency is no longer subject to the same legal or political constraints it once was. The “living presidency,” championed and applauded by living constitutionalists, takes advantage of its unique position as head of government and head of party, a need to keep campaign promises, and as the only person who can claim a mandate on behalf of the entire country to brush constitutional limits aside in favor of expediently solving the problems of the day. In other words, Hamilton’s energetic executive has proved too energetic.
Prakash’s description of the modern presidency diverges from that of his contemporaries. Others have described the “modern” presidency and placed the focus on its institutional development. Prakash, however, sees the same phenomenon but calls it a “living presidency,” a presidency unrestrained by constitutional limits that constantly amends the Constitution by violating it. Of course, none of the characteristics of the modern presidency has been translated into formal constitutional amendments through the Article V amendment process. Rather, Prakash argues that the “executive can alter the constitution and laws by violating both” (p. 64). He contends that, in practice, lawbreaking serves to informally amend the Constitution in a manner similar as Ackerman’s “constitutional moments” (Ackerman 1993; 1998; 2014). The focus is drawn away from the institutional development of the presidency and onto theories of constitutional interpretation. The living presidency is living constitutionalism at its worst: expediency over principle, campaign promises over the rule of law, and partisanship over constitutional government.
Prakash therefore criticizes both the living presidency and the living constitutionalists who enable it. Several chapters are devoted to highlighting all the ways in which the “living presidency” has developed. For students of the presidency, Prakash’s list of grievances includes no surprises. He discusses the president’s violations of the oath of office, presidential war powers and the Commander-in-Chief Clause, the Office of Legal Counsel’s propensity to enable the president rather than constrain it, the president’s role in foreign affairs, including the rise of executive agreements and the Supreme Court’s endorsement of executive primacy in UNITED STATES V. CURTISS-WRIGHT (1936) and ZIVOTOFSKY V. KERRY (2015), and the president’s increasing discretion in law enforcement, including through congressional delegation, “CHEVRON deference,” signing statements, and declining to enforce laws a president believes to be unconstitutional.
Congress and the courts could rein in the modern plebiscitary presidency. In his last chapter, Prakash offers a series of recommendations for Congress to use solve the problem of the “living presidency.” There are thirteen of them, including imposing advice-and-consent requirements on more White House personnel, expanding congressional staff, overturning CHEVRON deference by statute, stopping delegating so much to executive agencies, adding sunset provisions, adding severability clauses to limit the force of signing statements, deputizing private citizens to enforce executive overreach (perhaps as qui tam relators), enacting a stronger war powers act, and occasionally censuring the president. Interestingly, Prakash then offers three reforms he believes to be unconstitutional: creating more plural, independent agencies (this is even more clearly [*137] unconstitutional in light of SEILA LAW V. CFPB (2020), decided several months after the book’s publication), establishing a new agency focused exclusively on impeachment, and delegating budgetary and regulatory authority to an independent agency.
There are three problems with this book. First, though it sets up his normative argument—that originalism can rein in the living presidency—nicely, Prakash’s desire to skewer living constitutionalists ultimately hinders his account. Prakash conflates constitutional change and constitutional practice; he confuses living constitutionalism as an interpretive method with observable institutional change. If any and all developments of the institutional presidency are constitutional developments, then we do in fact have a living constitution and Prakash begs the question.
His principal argument is that presidents across time have informally amended the Constitution by flouting its constraints. However, Prakash provides no evidence that this actually happens. Prakash asserts both that presidents’ actions “alter the existing constitutional order” (p. 61) and “alter the Constitution” (p. 64). He cannot have it both ways without begging the question (see Tulis 1991). If Prakash wants to make an originalist argument, he can argue neither that the Constitution created a living presidency, nor that we have a living presidency the Constitution did not create. If presidents act unilaterally to alter the Constitution rather than merely interpreting it, then a president can do no wrong and we do in fact have a living constitution no matter how much originalists might protest. Originalism would then not be a method of constitutional interpretation, but an argument that all informal constitutional amendments are unconstitutional. But this is not Prakash’s argument.
In other words, Prakash does not consider the alternative possibility that modern presidential practice may not be the result of any informal amendment at all, but perversions of the constitutional presidency. Prakash overlooks that today’s presidency cannot be easily reconciled with constitutional structure. Today’s presidency embodies at least some fundamental transformations, notably its propensity to appeal directly to the people rather than to Congress on matters of policy (Tulis 1987). Much of the modern presidency is not a result of informal constitutional amendment, but the unacknowledged gradual departure of a politics that cannot be reconciled with constitutional structure.
Second, Prakash does not explain how either Congress or the courts can effectively do what he suggests considering that they have historically ceded power to the president. For Prakash, the ideal time for Congress to enact these reforms is “during the waning months of a presidential term but before a presidential election,” as this would place all members of Congress behind a “veil of ignorance” of sorts that would incentivize them to curb executive aggrandizement (pp. 271–72). However, he does not explain why we would expect Congress to act this way, given many members would have their own personal predictions about the outcome of the presidential election, and that many would be up for reelection themselves.
This raises the third problem. Congress is notably absent. By focusing on the presidency and chastising the living constitutionalists who enable it, Prakash misdiagnoses the problem. Prakash [*138] sees Congress as the remedy but fails to see that it may have also been the cause all along. Why should we expect Congress to adopt any of these proposals when, in Prakash’s telling, the presidency is uniquely suited to grab power from the other branches? If the problem is the “living presidency” (and living constitutionalism), then Congress cannot solve it. It is not clear the courts would be more successful—something Prakash also suggests—given they are “often on the sidelines of legal and constitutional disputes involving the presidency” (p. 72) (see also Farrier 2019).
Curiously, Prakash appears to also acknowledge this. He writes that “[f]or any serious reform to materialize, members of Congress must, from time to time, adopt the institutional perspective even as they regularly cling to the party perspective” (p. 275). Perhaps the problem lies not with the “living presidency” or with living constitutionalists at all, but with Congress abdicating its constitutional duty. As a result, one need not accept Prakash’s tendentious theory of the presidency and constitutional change to take his recommendations seriously. Beneath the book’s desire to vindicate originalism and proclaim living constitutionalism to be unprincipled and vacuous, there are real, valuable suggestions for how the modern presidency can be “caged” (p. 246). Legal scholars, political scientists, and—most urgently—legislators must take these contributions seriously.
To be sure, Prakash’s prescriptions for constitutional health are no panacea. Just as living-constitutionalist arguments often fail to take the Constitution as seriously as they should, originalist arguments like these may flounder on their tendency to forget that the Framers created a structure of governance, not a list of rigid legal definitions. Prakash’s originalist prescriptions may fail for the same reason that some formalist constitutional interpretations may prove toothless—"because the formal principles of control offer no coherent response to the altered conditions of government that gave rise to” the significant institutional developments that make up the contemporary American state (Skowronek and Orren 2020, p. 8).
Though Prakash believes it would be inconsistent with Founders’ presidency, the solution may be buried in his hint that we adopt a “dynamic approach to the separation of powers” (p. 250). Though Prakash provides little explanation, it sounds consistent with other political approaches to the separation of powers (Chafetz 2017; Tulis 1987; 2009; Eisgruber 1994; Zeisberg 2013). Ultimately, Prakash has offered a complex and valuable addition to the literatures on the presidency, constitutional development, and the separation of powers. While the book leaves many questions unanswered, its theoretical shortcomings may prove moot if both scholars and policymakers heed Prakash’s urgent call for constitutional reform.
CASES:
CHEVRON U.S.A., INC. V. NATURAL RESOURCES DEFENSE COUNCIL, 467 U.S. 837 (1984).
SEILA LAW V. CONSUMER FINANCIAL PROTECTION BUREAU, 140 S. Ct. 2183 (2020). [*138]
UNITED STATES V. CURTISS-WRIGHT EXPORT CORPORATION, 299 U.S. 304 (1936).
ZIVOTOFSKY V. KERRY, 576 U.S. 1059 (2015).
REFERENCES:
Ackerman, Bruce A. 1993. WE THE PEOPLE, VOLUME 1: FOUNDATIONS. Cambridge, Mass: Belknap Press of Harvard University Press.
———. 1998. WE THE PEOPLE, VOLUME 2: TRANSFORMATIONS. Cambridge, Mass: Belknap Press of Harvard University Press.
———. 2014. WE THE PEOPLE, VOLUME 3: THE RIGHTS REVOLUTION. Cambridge, Massachusetts ; The Belknap Press of Harvard University Press.
Chafetz, Joshua A. 2017. CONGRESS’S CONSTITUTION: LEGISLATIVE AUTHORITY AND THE SEPARATION OF POWERS. New Haven, CT: Yale University Press.
Eisgruber, Christopher L. 1994. “The Most Competent Branches: A Response to Professor Paulsen. (Response to Article by Michael Stokes Paulsen in This Issue, p. 217).” GEORGETOWN LAW JOURNAL 83 (2): 347–71.
Jasmine Farrier. 2019. CONSTITUTIONAL DYSFUNCTION ON TRIAL: CONGRESSIONAL LAWSUITS AND THE SEPARATION OF POWERS. Ithaca, NY: Cornell University Press.
Kernell, Samuel. 1997. GOING PUBLIC: NEW STRATEGIES OF PRESIDENTIAL LEADERSHIP. 3rd ed. Washington, D.C: CQ Press.
Muirhead, Russell, and Jeffrey K. Tulis. 2020. “Will the Election of 2020 Prove To Be the End or a New Beginning?” POLITY 52 (2): 339–54.
Nelson, Eric. 2014. THE ROYALIST REVOLUTION: MONARCHY AND THE AMERICAN FOUNDING. Cambridge, Massachusetts: The Belknap Press of Harvard University Press.
Neustadt, Richard E. 1991. PRESIDENTIAL POWER AND THE MODERN PRESIDENTS: THE POLITICS OF LEADERSHIP FROM ROOSEVELT TO REAGAN. 1st Free Press paperback ed. New York : Toronto : New York: Free Press ; Collier Macmillan Canada ; Maxwell Macmillan.
Schlesinger, Arthur M. 1974. THE IMPERIAL PRESIDENCY. New York: Popular Library. [*140]
Skowronek, Stephen. 1997. THE POLITICS PRESIDENTS MAKE: LEADERSHIP FROM JOHN ADAMS TO BILL CLINTON. Cambridge, MA: Belknap Press.
———2020. PRESIDENTIAL LEADERSHIP IN POLITICAL TIME: REPRISE AND REAPPRAISAL (3rd ed. Revised and Expanded). Lawrence, KA: University Press of Kansas.
Skowronek, Stephen, and Karen Orren. 2020. “The Adaptability Paradox: Constitutional Resilience and Principles of Good Government in Twenty-First-Century America.” PERSPECTIVES ON POLITICS 18 (2): 354–369.
Suri, Jeremi. 2017. THE IMPOSSIBLE PRESIDENCY: THE RISE AND FALL OF AMERICA’S HIGHEST OFFICE. First edition. New York: Basic Books.
Thach, Charles C. 1969. THE CREATION OF THE PRESIDENCY, 1775-1789: A STUDY IN CONSTITUTIONAL HISTORY. Baltimore: Johns Hopkins Press.
Tulis, Jeffrey K. 1987. THE RHETORICAL PRESIDENCY. Princeton, N.J: Princeton University Press.
———. 1991. “On the State of Constitutional Theory.” LAW & SOCIAL INQUIRY 16 (4): 711–716.
———. 2009. “Impeachment in the Constitutional Order.” In THE CONSTITUTIONAL PRESIDENCY, edited by Jeffrey K. Tulis and Joseph M. Bessette, 229–46. Baltimore, MD: Johns Hopkins University Press.
Zeisberg, Mariah. 2013. WAR POWERS THE POLITICS OF CONSTITUTIONAL AUTHORITY. Princeton: Princeton University Press.
© Copyright 2020 by the author, Allen C. Sumrall
