Power Threatens American Democracy
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.
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.
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 NightmareI . . . 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
Andrew Taslitz, Government Lawyers’ Ethical Obligations and the War on Terror
book is a welcome contribution on the antimonarchist side. . . . an impressive book in the scope of questions
addressed, the materials–both legal and political science–drawn upon, and the clarity and cogency of its thinking.
It would be a valuable enhancement to courses on the presidency, constitutional theory, or public administration.
Daniel Hoffman, Law and Politics Book Review
Shane's book is a crisp, well-argued brief against the theory of a unitary executive. He argues persuasively that the
theory is deeply implausible since it depends on a tortured interpretation of key passages in the Constitution while, even
more damning, relying on a willful misreading of the [End Page 235] context in which the founders did their work. Furthermore,
he insists that, as a matter of practice, the unitary executive has bad results. A balancing of powers that requires consultation
and opens up decision-making to diverse voices leads, quite simply, to better decisions.
Shane is particularly compelling in his evocation
of the "ethos" or attention to implicit norms that underwrites a government that attends to checks and balances.
There is no way to enforce consultation or the open flow of information among branches of government in the vast majority
of cases. Officials, bureaucrats, and politicians must practice such ways of checking in with other interested parties as
an expected matter of course. The larger ethos here is an image of collective decision-making, of the government in all its
branches going through the checks-and-balances process before finally acting. From Nixon on, Republican presidents have actively
sought to destroy that ethos through, on the practical level, insisting on a necessary secrecy about executive branch actions
while also working to impose a much stricter top-down control over the whole executive branch. From Nixon's plumbers to Dick
Cheney's refusal to divulge even the most trivial details of his office's activities, the Republicans have installed a sense
of an embattled presidency that is working against the other branches to achieve ends Congress or the courts would thwart
if they could. Shane rightly worries that the ethos that underwrites our checks and balances, once destroyed, cannot easily
John McGowan, American Literary History
Madison's Nightmare's . . . focused insights on the excesses of modern presidentialism make
it a valuable and timely work. Through a convincing review of the Madisonian model of robust checks and balances, Professor
Shane reminds us that the founders designed a system of separation of powers not only to control abuses by the individual
branches of government. By requiring "bargaining and deliberation" among the branches, the system also functions to enhance the quality
of decision making by each. And with the backdrop of the extravagant claims of unilateral power by the recent Bush administration,
Madison's Nightmare persuasively demonstrates the importance of this "pluralist" perspective for a law-bound and
well-functioning executive branch as well.
Michael Van Alstine, Tulsa Law Review