63 Pages Posted: 18 Apr 2011 Last revised: 27 Apr 2011
Date Written: April 15, 2011
This is a review essay of Bruce Ackerman's new book, The Decline and Fall of the American Republic. The book argues that the modern presidency poses a new and dire threat to our constitutional traditions. One of its core claims is that legal interpretation in the executive branch - especially as practiced by offices like the White House Counsel's Office and the Justice Department's Office of Legal Counsel (OLC) - is hopelessly compromised and cannot possibly be relied upon to foster principled, good faith adherence to legal constraints. Executive branch lawyers, Ackerman contends, inevitably say yes to whatever the President wants to do, even if it means defending the legally indefensible.
This Review shows that Ackerman's account of law and legal interpretation in the executive branch - "executive constitutionalism," in Ackerman's terminology - is simply wrong. Although the recent experience of the "torture memos" shows that offices like OLC can sometimes go badly astray, as a general matter OLC has a long history of providing principled, independent legal analysis. There is a similarly long history of the White House and other executive components binding themselves to OLC's opinions. These trends continue. (In particular, Ackerman's claim that the White House Counsel's Office has recently been usurping OLC's role is inaccurate.) To be sure, neither OLC nor any other player in executive constitutionalism is perfect, and there is certainly room to improve. Among other things, better disclosure of executive branch legal interpretation could help encourage fidelity to the traditions of independence and professional integrity for which offices like OLC are known.
Ackerman, however, is insufficiently attentive to the institutional details of how executive constitutionalism actually works, which leads him to miss the important but subtle ways in which it entails real constraint. As a result, the book's broadside attack on executive branch legal interpretation is an exercise in unwarranted alarmism. And given its mistakes of description, the book's prescriptions for reform - including its call to replace OLC with a quasi-court he dubs the "Supreme Executive Tribunal" - are not only troubling on their own terms but entirely unwarranted.
Keywords: separation of powers, executive branch, presidential power
Suggested Citation: Suggested Citation
Morrison, Trevor W., Book Review: Constitutional Alarmism (Bruce Ackerman, The Decline and Fall of the American Republic (2010)) (April 15, 2011). Harvard Law Review, Forthcoming; Columbia Public Law Research Paper No. 11-270. Available at SSRN: https://ssrn.com/abstract=1811134