MADISON'S NIGHTMARE How Executive Power Threatens American Democracy University of Chicago Press 2009 Between 1981 and 2009, American presidents waged an escalating assault on constitutional checks and balances. They (and their lawyers) advanced ambitious and unsubstantiated claims of vast unilateral executive authority. They claimed to be largely immune to oversight by Congress and the courts. Congress, in particular, largely allowed them to get away with it. In Madison’s Nightmare: Executive Power and the Threat to American Democracy, law professor Peter M. Shane describes the devastating consequences of what he calls this “era of aggressive presidentialism.” He shows how so-called unitary executive theory has created an organizational culture of entitlement in the executive branch. It is an institutional psychology that produces shallow, defensive, ideologically driven, and sometimes lawless decision making. He explains how presidentialism undermines wise policy making in war time and subverts the rule of law in national security affairs. He analyzes presidential efforts to centralize control over domestic policy making in the White House, and shows how such efforts can put the health and safety of the American people at risk. He portrays a government riven by relentless partisanship and presidential ambition, which together have subverted the habits of respect and cooperation between the branches of government that make effective government possible. Professor Shane shows how structural and institutional causes, rather than ideology alone, have produced the presidentialist era. He provides an alternative vision of the kind of democracy to which Americans are constitutionally entitled, and outlines the reforms needed to restore pluralism, dialogue, and the rule of law as the hallmarks of executive branch policy making. Madison’s Nightmare is the first book to join a critical account of presidentialism in foreign and military affairs with an account of presidentialism in domestic policy making. It is the first book to diagnose the ills of presidentialism not just in terms of specific policy outcomes, but also in terms of the harmful systematic impacts on governance that occur when presidentialism becomes an ethos of government - impacts that transcend any particular presidency. It is the first book to explain clearly why our constitutional system can lawfully yield a radically presidentialist system that is utterly contrary to the vision of the founders – and also how to get out of it.
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Reviews Since the Obama Administration now has czars for cars, information technology, bonuses, financial products, et cetera, can a book czar be far behind? Well, here's a memo for the inbox of our book czar (or czarina) to-be. It's about a slender volume that I think our new czar/czarina should mandate as a "must read" for every American from middle school to grad school and way beyond. The book is titled "Madison's Nightmare: How Executive Power Threatens American Democracy." Its author is Peter M. Shane, a law professor at Ohio State University. . . Shane writes in compelling non-lawyerish commonsense prose about how ambitious assertions of presidential power are the logical outcome of a decades-long trend that started with Ronald Reagan and George H.W. Bush, continued under Bill Clinton, and culminated most spectacularly under the "unitary executive" doctrine embraced by the George W. Bush administration. William Fisher, A "Must Read" for the Book Czar The book I just read is in the running, in my estimation, for second-best text on how to undo the imperial presidency. (Can't be first, of course.) It's called "Madison's Nightmare: How Executive Power Threatens American Democracy," by Peter M. Shane, and it's much more about what the problem is than how to solve it, but the two things are not really separable, and the analysis of the problem here is invaluable. This is a detailed and extensively researched look at the interactions among the three branches of our federal government, and the checks and balances employed - or the lack thereof. . . .Shane's recommendations at the end of the book are generally excellent. David Swanson (author of Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union), Waking from Madison’s Nightmare
I . . . write . . . to direct the reader to two . . . books worthy of careful study and debate by all who are interested [in the ethics of government lawyering], but particularly by those who are or hope to be government lawyers serving in advisory roles. Those books are Peter M. Shane’s Madison’s Nightmare: How Executive Power Threatens American Democracy and H. Jefferson Powell’s Constitutional Conscience: The Moral Dimension of Judicial Decision.Andrew Taslitz, Government Lawyers’ Ethical Obligations and the War on Terror
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