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11/14/2022

New Book: "Democracy’s Chief Executive" by Peter Shane
Michael Ramsey

Recently published, Democracy’s Chief Executive: Interpreting the Constitution and Defining the Future of the Presidency, by Peter M. Shane (University of California Press 2022).  Here is the book description from Amazon:

Legal scholar Peter M. Shane confronts U.S. presidential entitlement and offers a more reasonable way of conceptualizing our constitutional presidency in the twenty-first century.
 
In the eyes of modern-day presidentialists, the United States Constitution’s vesting of “executive power” means today what it meant in 1787. For them, what it meant in 1787 was the creation of a largely unilateral presidency, and in their view, a unilateral presidency still best serves our national interest. Democracy’s Chief Executive challenges each of these premises, while showing how their influence on constitutional interpretation for more than forty years has set the stage for a presidency ripe for authoritarianism.
 
Democracy’s Chief Executive explains how dogmatic ideas about expansive executive authority can create within the government a psychology of presidential entitlement that threatens American democracy and the rule of law. Tracing today’s aggressive presidentialism to a steady consolidation of White House power aided primarily by right-wing lawyers and judges since 1981, Peter M. Shane argues that this is a dangerously authoritarian form of constitutional interpretation that is not even well supported by an originalist perspective. Offering instead a fresh approach to balancing presidential powers, Shane develops an interpretative model of adaptive constitutionalism, rooted in the values of deliberative democracy. Democracy’s Chief Executive demonstrates that justifying outcomes explicitly based on core democratic values is more, not less, constraining for judicial decision making—and presents a model that Americans across the political spectrum should embrace.

The Yale Journal on Regulation's Notice and Comment Blog is hosting a symposium on the book, with these contributions, some sharply critical of originalism:

Reining in the Presidency Requires Limiting the Scope of Federal Power, by Ilya Somin

The Necessity of Politics in Administration, by Cristina Rodriguez

Constitutional Interpretation Is Values All the Way Down, by Michael Sant’Ambrogio

Of Presidents, Democracy, and Congress, by Gillian Metzger

Democracy’s Chief Executive and the Separation of Powers, by Christopher J. Walker

The Major Question Doctrine, Nondelegation, and Presidential Power, by Daniel Farber

Visions of a Progressive Regulatory Movement: Remarks on Democracy’s Chief Executive by Peter M. Shane, by Glen Staszewski

Resisting Originalism, Even When “Done Well”, by Lisa Heinzerling

What Kind of Democracy? by Keith E. Whittington

Can Originalism Survive the Lawlessness It Has Bred? A Prayer for a Stronger and Wiser Theory of Interpretation, by Victoria Nourse

The Bloated and Dangerous Presidency, by Carlos A. Ball

The Time to Stop a Runaway Presidency is Before it Starts, by Richard H. Pildes