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11/11/2020

Lee Strang on Saikrishna Prakash's "The Living Presidency"
Michael Ramsey

In the Federalist Society Review, Lee Strang: Can Originalism Constrain the Imperial Presidency? From the introduction (footnotes omitted):

The Living Presidency: An Originalist Argument Against Its Ever-Expanding Powers, by Professor Saikrishna Bangalore Prakash [available on Amazon here], is a readable, systematic, and well-reasoned description of today’s living presidency, as well as a roadmap showing the way back to the constitutionally-authorized office. The Living Presidency’s thesis is that today’s presidents routinely “alter the Constitution and laws” such that the office has “become the amending executive.” But, in the beginning, “the original presidency was not meant to be all-powerful [and] lacked the unilateral authority to amend the Constitution or to make, amend, or unmake statutory law.” Professor Prakash describes the causes of today’s out-sized presidency, details support for his claims that the living presidency departs from the Constitution’s original meaning, and then suggests means to tame the living presidency.

The Living Presidency is readable and accessible to lawyers and educated laymen. At one point, Professor Prakash refers to the “generations of schoolchildren who grew up watching Schoolhouse Rock’s catchy song and video ‘I’m Just a Bill.’” He also colorfully describes Justice Hugo Black’s statement that the president merely executes the law, calling it “as antiquated as a rotary dial telephone, at least if we use modern practice as the benchmark.” The Living Presidency is peppered with concrete examples supporting Professor Prakash’s points. For example, while detailing the presidents’ push to acquire the power to substantively amend federal statutes, he uses the example of President Barack Obama delaying implementation of the Affordable Care Act’s employer mandate via “transition relief,” which he justified by pointing to past presidents’ delayed implementation of tax legislation.  One of Professor Prakash’s most effective techniques is to propose thought experiments about alternative choices that could have been made by the Framers and Ratifiers. “[I]magine what Article II would look like,” he asks, “if it had been written in a radically different era.” Would Americans in 1975 have created such a powerful executive?

Part of The Living Presidency’s accessibility also stems from its clear organization. In Chapter 2, Professor Prakash methodically explains why presidents have accumulated the power to make and amend laws. He identifies and discusses multiple motivations that have caused presidents to push the boundaries of their authority, including the love of power, a hunger for fame, and a desire to keep their promises to voters. The Living Presidency overall likewise has a clear, interlocking structure that introduces Professor Prakash’s idea of the living presidency, then examines the causes of the living presidency in general, and then drills down into three of the most important ways the living presidency has grown.

And from later on:

Is Originalism the Best Way to Contain the Living Presidency? 

In the debates between originalists and nonoriginalists, a standard nonoriginalist move, as Professor Prakash notes, is to point out how the living Constitution is more normatively attractive than the original one—that it gets better results even if it fudges on procedure. The Living Presidency challenges that claim in two important ways. First and directly, Professor Prakash details how the bloated powers of the living presidency exceed what most Americans, regardless of their jurisprudential views, believe is healthy. Most Americans, for instance, do not want the President to be able to unilaterally enter into a land war overseas. By any objective measure, the living presidency is too powerful.

Second, the living presidency’s key mechanism of growth is past presidential practice, which is easy to manipulate to achieve immediate partisan goals. The partisans of the current occupant of the White House will marshal past presidential acts to support their president, while critics will marshal their own examples and distinguish the president’s support. For instance, both Democrats and Republicans have switched between supporting and opposing congressional regulation of the armed forces based on the Commander in Chief Clause, depending on whether Clinton, Bush, or Obama was president. This dynamic leads Professor Prakash to conclude that “muddled partisan disputes are about all we can expect under the living presidency approach.”

Originalism, by contrast and in principle, excludes resort to “modern politics or ethical considerations” in the dynamic of expanding presidential power, and therefore its “answers are clear.” Most of us will like some aspects of the original presidency and dislike other aspects. But most of us also wish to abandon the status quo: fights over indeterminate presidential practice aiming solely at current partisan advantage. The letter of party affiliation after a president’s name ought not be relevant to whether he has the power to employ “enhanced interrogation techniques,” or to “commit” but not “engage in” hostilities in Libya. Originalism holds out the promise of reducing both the growth of the living presidency and the partisan acrimony that erupts over how to interpret past presidential practices. ...