Yale Journal on Regulation Symposium on Peter Shane’s “Democracy’s Chief Executive”
The Yale Journal on Regulation is hosting a symposium on Peter Shane’s important new book, Democracy’s Chief Executive: Interpreting the Constitution and Defining the Future of the Presidency. They have already posted contributions by VC co-blogger Keith Whittington (Princeton), Daniel Farber (UC Berkeley), Cristina Rodriguez (Yale), Gillian Metzger (Columbia), and several others, including myself.
Here’s an excerpt from my contribution:
Peter Shane’s Democracy’s Chief Executive is a formidable challenge to much conventional wisdom about presidential power – particularly, but not exclusively, on the right. At the very least, it casts serious doubt on traditional originalist arguments in favor of an executive that is both “unitary” and endowed with broad substantive authority across a wide range of issue areas. He also explains how presidential power in many domains has exceeded constitutional bounds, and grown to dangerous levels…..
In this assessment, I advance two points, one an extension of his thesis, the other a critique. The former focuses on presidential efforts to usurp Congress’ power of the purse, an issue largely ignored in Shane’s book. The latter focuses on the tension between Shane’s support of relatively tight limits on presidential power and his largely uncritical endorsement of broad views of the total scope of federal authority under the Constitution, particularly under the Commerce Clause. The same point applies to his rejection of constraints on Congress’ power to delegate regulatory authority to the executive….
While Shane notes several other ways in which the Trump Administration pushed beyond previous limits on executive power, he overlooks its usurpation of the spending power. Using a variety of executive orders, lawsuits, and Justice Department policies, the administration repeatedly sought to impose conditions on federal grants to state governments that were not authorized by Congress….
Article from Reason.com