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Presidential Power Grabs: Their Causes and Cure

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The president's new round of executive orders is generating another cycle of debate over the imperial presidency. Just as Senator Obama condemned President Bush for overreaching, Republican leaders are denouncing present initiatives as lawless. On both occasions, some of these charges were substantial; and some were merely partisan sound bites. Is there a good way for ordinary Americans to tell which is which?

The answer is no, but it wasn't always that way.

Until Richard Nixon entered the White House, long-time professionals in the Justice Department played a central role in providing solid legal advice to the executive.

But when Nixon appointed John Dean as his White House counsel, this up-and-comer broke with precedent and created a small legal staff in the White House to provide independent advice to the president. This group has grown to include about 30 outstanding lawyers -- but all gain their jobs through political connections. This is also increasingly true of the 25 lawyers who serve in the Office of Legal Counsel, a special division of the Justice Department that continues its traditional advisory role.

These politicized lawyers find themselves in an impossible situation. On the one hand, they serve as advocates for the sitting president, pushing the legal envelope in their ingenious efforts to provide constitutional justifications for his initiatives. On the other hand, they serve as authoritative judges for the executive branch, providing a legal framework for millions of civilian and military personnel as they implement executive decrees. When particular initiatives hit the headlines, the top lawyers selectively publish their opinions to assure Congress, and the rest of us, that the president is indeed fulfilling his constitutional responsibilities to "take care that the law be faithfully executed."

Acting as both advocates and judges, these politicized lawyers have joined in a bipartisan effort to expand presidential prerogatives, especially over the past three decades. If left unconstrained, this dynamic will generate an increasingly imperial presidency over the next half-century.

The Supreme Court won't be an adequate check on power-grabs. Many challenges won't even get to court, since litigants can't show the particularized harm required for federal jurisdiction. In other cases, the imperial president will have left office long before a suitable law-suit reaches the justices. Once it arrives, the Court will be reluctant to destroy the long-standing expectations generated by the president's lawyers in the meantime. Even if a majority finally strikes down an executive decree, future presidential advocates will interpret these rebuffs narrowly in their on-going efforts to legalize the next round of problematic initiatives.

To make real progress, Congress and the president must create a new system of checks and balances. The president's current legal advisors should continue to serve as his advocates, but they should be stripped of their role as judges. This function should be assigned to a new judicial tribunal in the executive branch that will hear lawyers from Congress, as well as the President, before passing a timely judgment on the legality of executive orders.

While the tribunal deliberates, presidential directives should remain valid. But if the judges take Congress' side, the decree will be suspended -- unless the president decides to overrule the tribunal's contrary judgment.

Except in extraordinary cases, the president will be reluctant to take this step, since it will generate a strong political backlash when ordinary Americans are put on notice that there is a major power grab going on. Moreover, the prospect of quick and serious judicial review will sober up the president's legal advocates, restraining their present tendency to make extravagant claims on his behalf.

To assure the tribunal's credibility, its nine members should be nominated by the president and confirmed by the Senate. They should serve staggered nine-year terms, giving each president a chance to fill three vacancies during a four-year stay in the White House -- permitting the sitting president significant influence without undermining the tribunal's credibility.

Lots of other design issues require careful consideration, and I've explored them elsewhere. But for now, it's more important to recognize that the present system of checks and balances is broken.

Now is a good time to consider serious reform. Neither Democrats nor Republicans can be confident that they will win in 2016, and reap the short-term rewards of the next round of unilateralism. As President Obama reaches the end of his term, he has less and less to gain from his present course. As in the case of the NSA, liberal Democrats should not engage in knee-jerk defense of presidential prerogative, but join with libertarian Republicans to agitate for a fundamental reappraisal of our present course.

The challenge is to encourage Obama to take the long view: A half century from now, will Americans say that he joined with civil libertarians in both parties to rein in the runaway presidency before it became an overwhelming danger to liberty?

Bruce Ackerman is Sterling Professor of Law and Political Science at Yale. His new book, We the People: The Civil Rights Revolution is coming out this month.