The Conservative Insurgency and Presidential Power: A Developmental Perspective on the Unitary Executive
Skowronek, Stephen, Harvard Law Review
TABLE OF CONTENTS I. A NEW FORMALISM 2074 II. EARLY CONSTRUCTIONS 2077 III. THE PROGRESSIVE CONSTRUCTION 2083 IV. THE UNITARY EXECUTIVE AS THEORY 2092 V. THE UNITARY EXECUTIVE AS POLITICS 2096 VI. THE TRANSPOSITION OF IDEAS IN THE CONSTRUCTION 2100 OF PRESIDENTIAL POWER
A government, by an unlimited power of construction, may stretch constitutions ..., or interpret them as synods do scripture, according to the temporal interest of the predominant sect.
--John Taylor of Caroline (1)
The American Constitution was designed to render political change slow and difficult, and that has put it at odds with the various insurgencies that have, from time to time, swept over it. Indeed, few things in American political development are more impressive than the ingenuity of empowered movements in confounding the checks and balances that thwart their ambitions, and nothing has proven more consequential for American government over time than the ideas and institutions they have conjured to ease those constraints. The underlying political dynamic has long been familiar. Commenting on the drift of American government in the early nineteenth century, Virginia theorist John Taylor of Caroline decried the tendency of ideologically charged movements to change the Constitution without amendment. The "predominant sect" simply reinterpreted the text, proceeding by means of "construction" to render it more amenable to attainment of the new political purposes in view. Constraints on programmatic action gave way before a "machine called inference," a machine that works by "conceding [constitutional] principles, and then construing them away." (2)
The American presidency, as we know it today, is one of the chief products of the political machinery of constitutional inference. Time and again, the office has proven indispensable to the political ambitions of newly empowered reform movements, and each has brought to it a new set of legitimating ideas and institutional resources designed to attain them. Looking back, it may seem obvious that the presidency is uniquely suited to the promotion of transformative ambitions. But the attraction of insurgent movements to the presidency is, in fact, one of the great paradoxes of American constitutional design. The Framers feared leaders of the sort who would appeal directly to the people on behalf of one political program or another, and they created the presidency in large part to check popular enthusiasms. (3) Far from endorsing presidential leadership, their assumptions in separating executive and legislative power were that Congress, with its vast repository of expressed powers and its close proximity to the people, was the branch most likely to exploit public sentiments, and that a properly constituted executive would help to stabilize the affairs of state. (4) The separation of powers, the provision for indirect presidential elections, the charge to "preserve, protect and defend the Constitution," (5) the presidential veto of legislation--all marked the presidency as a counterweight to impulsive majorities and a prod to a more deliberative stance in national affairs. (6) It might be said that the Framers anticipated moments like the mid-1860s and the mid-1990s when congressional insurgents flush with power and emboldened by a radical vision of new possibilities squandered precious time and energy trying to weaken and circumvent an uncooperative occupant of the White House. (7) What they did not anticipate was that handicapping the legislative branch in the enactment of popular mandates and reconstructive programs would spur the development of alternative instrumentalities designed to work through the executive. The unintended effect of their division of powers has been to direct proponents of programmatic action to elaborate upon the endowments of the presidency and to refashion that counterweight to insurgency into its cutting edge. …