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Jed Shugerman: The Bi-Partisan Enabling of Presidential Power
Michael Ramsey

Jed Handelsman Shugerman (Fordham Law School) has posted The Bi-Partisan Enabling of Presidential Power: A Review of David Driesen's 'Specter of Dictatorship: Judicial Enabling of Presidential Power' (Syracuse Law Review, Vol. 73, 2022) (20 pages) on SSRN.  Here is the abstract:

In "The Specter of Dictatorship: Judicial Enabling of Presidential Power," [Ed.: Stanford University Press 2021, book description here] David Driesen questions the unitary executive theory and other doctrines of unchecked executive power. He offers primarily a critique of purposivism, a mix of original public meaning and more recent history illuminating those purposes: the Founders’ anti-tyranny purpose and then the rise of European tyranny from Nazi Germany to contemporary Hungary, Turkey, and Poland.

This review first focuses on Driesen’s approach to Congress: He identifies the broad congressional delegation of powers to the president as a source of expansive executive power, but he does not entertain that doctrines of deference to agencies and executive power may be a problem, nor whether some doctrines (e.g., limiting Chevron or expanding non-delegation) may be potential solutions. Second, the problem of enablement is not just judicial: Presidents use the appointment process to stack the courts with lawyers who had significant experience exerting and/or expanding executive power: a pipeline from Article II lawyers to Article III judges. Third, on the question of anti-tyranny from the Founding to more modern European examples, some of Driesen’s evidence (especially Poland) may be counter-evidence in favor of stronger separation of powers as a check against ambitious party leaders. Driesen’s account of the Founding is more accurate than the unitary theorists’ account, but he assumes that the anti-unitary position is the pro-liberty position. The unitary advocates have their own good-faith theory of liberty, even if that theory is a reflection of 1980s Republican ideology, more than of the 1780s republican ideology.

Unsurprisingly, I disagree with the review's assessment of the unitary executive theory (which is delivered much more strongly and at greater length in the review than the abstract suggests).  But I agree that the chief culprit in the modern expansion of executive power is congressional delegation, and especially the ability of the President and the agencies to claim delegated power from statutory language that is (at best) ambiguous.  And yet most modern commentators who purport to abhor the overreach of executive power at the same time oppose any attempt to rein in claims of delegation.  Professor Shugerman is a notable exception.