Document Type

Article

Publication Title

Syracuse Law Review

Abstract

For the last hundred years or so, Americans have been bullish on their presidents. At the turn of the 20th century, Progressive Era thinkers championed the empowered executive as the royal road to ef-ficacious and accountable government. Reformers in Congress agreed, granting the executive sweeping powers. Over subsequent decades, the office of the president accrued ever greater authority. And some are pushing for still more: respected scholars of public ad-ministration champion expanded executive empowerment today on the same good governance grounds mooted over a century ago. But it is getting harder to keep the faith. Scholars of “democratic deconsolidation” have long highlighted the connection between the rise of strongmen and the decline of liberal democracy. Their arguments have received renewed attention in light of recent events. Former President Trump’s brazen lawbreaking, authoritarian tendencies, and evasion of accountability raised questions about the empowered execu-tive for even the most avowed presidentialists. In response, some have become more circumspect; others have turned their attention to shoring up checks on executive power to make presidentialism safe—or at least safer—for democracy. David Driesen’s sobering new book joins this debate with soft-spoken alarm. Law, he argues, has not restrained presidential power recently, but expanded it. Moreover, he suggests that we are right to worry about the consequences of executive aggrandizement for demo-cratic government. When we put the growth of US executive power in historical and international perspective, we see that American law is courting dictatorship. Without serious changes, it may bring it into be-ing. To guard against that eventuality, Driesen proposes doctrinal changes that, he thinks, can bring the presidency back under court-enforced law and so keep it from threatening the integrity of the republic. This Article offers a friendly critique of Driesen’s analysis. Driesen is surely right to draw attention to a dangerous tendency in American law. But he overemphasizes doctrine in his account of presidential power. As a result, he puts the wrong kind of faith in doctrinal reforms to curb the executive and protect democracy. Presidential power and democratic decline owe more to institutional developments than legal decisions. If we want to use law to check the presidency and shore up democratic government, we should focus less on how law affects individual presidential powers and more on how it influences our democratic culture.

First Page

1433

Volume

72

Publication Date

2022

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