The Specter of Dictatorship: Judicial Enabling of Presidential Power

THE SPECTER OF DICTATORSHIP

Judicial Enabling of Presidential Power

DAVID M. DRIESEN

STANFORD UNIVERSITY PRESS

Stanford, California

STANFORD UNIVERSITY PRESS

Stanford, California

© 2021 by the Board of Trustees of the Leland Stanford Junior University.

All rights reserved.

No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying and recording, or in any information storage or retrieval system without the prior written permission of Stanford University Press.

Printed in the United States of America on acid-free, archival-quality paper

Library of Congress Cataloging-in-Publication Data

Names: Driesen, David M., author.

Title: The specter of dictatorship : judicial enabling of presidential power / David M. Driesen.

Other titles: Stanford studies in law and politics.

Description: Stanford, California : Stanford University Press, 2021. | Series: Stanford studies in law and politics | Includes bibliographical references and index.

Identifiers: LCCN 2021011349 (print) | LCCN 2021011350 (ebook) |

ISBN 9781503611757 (cloth) | ISBN 9781503628618 (paperback) |

ISBN 9781503628625 (epub)

Subjects: LCSH: Presidents—United States. | Executive power—United States. | United States. Supreme Court. | Separation of powers—United States. | Political questions and judicial power—United States. | Democracy—United States.

Classification: LCC KF5053 .D75 2021 (print) | LCC KF5053 (ebook) | DDC 342.73/062—dc23

LC record available at https://lccn.loc.gov/2021011349

LC ebook record available at https://lccn.loc.gov/2021011350

Cover design by Kevin Barrett Kane

Typeset by Kevin Barrett Kane in 10/14 Minion Pro

STANFORD STUDIES IN LAW AND POLITICS

Edited by Keith J. Bybee

CONTENTS

Preface

INTRODUCTION

1. Avoiding Tyranny at the Founding

2. The Rise of Presidential Power

3. Declining to Adjudicate Claims Against the President

4. Implied Presidential and Congressional Power

5. The Specter of Dictatorship: Poland, Hungary, and Turkey

6. Parallels to America’s Democratic Erosion

7. Judicial Treatment of Presidential Power in an Age of Democratic Decline

CONCLUSION

Notes

Bibliography

Index

PREFACE

This book addresses judicial treatment of presidential power in an age of democratic decline. Many commentators have criticized the Supreme Court’s separation of powers jurisprudence as overly deferential to the President, especially in the overlapping areas of national security and foreign affairs. Some scholars, however, have defended the Court and even urged the Court to expand its support for presidential control of government domestically, arguing for a unitary executive theory that claims that the President enjoys complete control over the executive branch of government. The Court embraced this theory in 2020, but kept in place precedents in great tension with the theory.¹

I wrote this book because Donald Trump’s election suggests that the courts and constitutional law scholars need to take the possibility of autocracy more seriously than we have in the recent past. I say recent past, because many of the founders of our country—those who framed and ratified the Constitution—were very concerned with the possibility of the republic they tried to establish becoming an autocracy, a country ruled by a despot. Indeed, a major purpose of the Constitution was to avoid a reversion to autocracy when an ambitious leader became President. This book asks whether this purpose has received too little attention in our contemporary separation of powers jurisprudence. While originalists usually support expanded presidential power, I show that originalism supports giving great weight to avoidance of autocracy.

The debate about American separation of powers jurisprudence, however, has been too parochial. It has almost always focused on our Constitution’s text, our Supreme Court’s decisions, our political history, our founding fathers’ intent, and our scholars’ ideas.

Our founding fathers were less parochial than we are. They had no choice. As the United States did not yet exist, they drew their ideas for avoiding autocracy from the writing of foreign scholars, experience in other countries, and their own experience as subjects of a monarchy.²

The Specter of Dictatorship suggests that fulfilling the Founders’ goal of establishing a permanent republic requires us to examine the experience of countries that have lost, or nearly lost, democracies in recent years. Accordingly, this book examines the loss or erosion of democracy in Hungary, Poland, and Turkey to see what we might learn about how societies lose democracies, in the hope that these countries’ experience might teach us something about how to keep ours intact. Since this book aims to evaluate the potential of separation of powers jurisprudence (broadly conceived) to protect democracy, it focuses on the institutional history of democracy loss. It primarily evaluates the role of the head of state in democracy decline. But it necessarily considers the roles of the legislature and the courts in advancing or retarding loss of democracy, both to contextualize the analysis of presidential power and to analyze the potential role of judicial decisions on presidential power in checking a drive to autocracy. It draws on the literature providing political explanations for loss of democracy primarily to test the idea that separation of powers jurisprudence may have something to contribute to limiting or slowing democratic decline when powerful political factors drive a country toward autocracy.

While Donald Trump’s election motivated this book, my concerns go beyond President Trump. I evaluate the role concerns about potential autocracy should play in separation of powers jurisprudence not only when the threat of autocracy seems quite present, but also when autocracy seems like a fairly distant threat, as it did in the United States until 2016. And I explain how taking the threat of autocracy seriously might change our approach to separation of powers jurisprudence and statutory cases informed by this jurisprudence.

The Specter of Dictatorship, then, seeks to implement in a limited way a suggestion animating Tocqueville’s great work, Democracy in America—that America might learn something from experience with other people’s mistakes.³ Tocqueville, however, saw a predicament for American democracy. If democracy experiences a real crisis, unlike the fake ones created at least every few years through the hysteria around elections, it might not survive it. And if democracy manages to survive its crises, as American democracy has in the past, a society might view these crises as false alarm[s] or as proof that democracy can survive any crisis. As David Runciman writes in The Confidence Trap, recovering from your mistakes can make you reckless. This book seeks instead to use experience abroad to make us wise and even to see connections between our own crises and the possibility of losing democracy that history demonstrates always exists.

Tocqueville, however, entertained doubts about whether America’s insularity made it capable of learning from other countries’ experience. My concern that this may remain true informs this book as well. In particular, a case for our judges to learn from other countries requires a justification rooted in our own experience. I show not only that we can learn valuable lessons from abroad, but also that our own experience suggests that some of our predecessors had learned these lessons by looking at foreign models available to them.

At the conclusion of the Constitutional Convention, Benjamin Franklin was asked whether we have a republic or a monarchy. He famously replied, A Republic . . . if you can keep it. When we took our place as a democratic island in a sea of monarchy, keeping a republic was not a foregone conclusion. As autocracy spreads throughout the world,⁴ the question of how law can help sustain a republic deserves some fresh attention.

I owe a great debt of gratitude to many people and institutions who helped me face the daunting task of writing this book. Syracuse University provided a research leave, which allowed me to give this project the sustained attention it required. Harvard Law School offered me an opportunity to work on this book as a Visiting Scholar during the leave. I am also indebted to the library staff at Syracuse University and at the Harvard Law School. Colleagues William C. Banks, Keith Bybee, Jack Goldsmith, Agata Hauser, Laurie Hobart, Aziz Huq, Seth Jolly, Ayse Kadioglu, Piotr Karlik, Ereneus Pawel Karolewski, Tom Keck, Michael Klarman, Dimitry Kochenov, Anthony Levitas, Stephen Levitsky, Michael Mehling, Witold Plowiec, Aziz Rana, Daphna Renan, Kim Lane Scheppele, Isabela and Peter Schiffauer, Rafal Sikorski, Jim Steinberg, Oren Tamir, Cem Tecimer, Valentin Weber, Roman Wieruszewski, Daniel Ziblatt and the participants in the Harvard Visiting Scholars Workshop all helped me in various ways. I also thank my research assistants, Bukre Nur Ayan, Kathryn J. Harrienger, Erika Hooker, and Kylie Mason.

I dedicate this book to my children, Kim, Mai, and Mirrah. My hope that they might live their lives in a democracy as I have motivated me to undertake this work.

INTRODUCTION

MANY WRITERS VIEWED Donald Trump as a Russian-supported threat to American democracy.¹ Others viewed him as an alien force sent here by misguided voters to enact unwise policies. And, of course, many voters saw him as a source of salvation from a corrupt political elite’s failure to address their concerns.

While a view of Trump’s presidency as a product of forces outside mainstream political institutions has some merit, presidential power has been growing in this country long before Trump came to power.² And our nation’s founders anticipated that a President might someday arise who was corrupted by foreign governments or who sought personal power through exciting a mob of supporters. In creating and ratifying the Constitution, the Founders aimed to establish institutions and customs capable of containing a President with despotic tendencies, since they understood that such a person was bound to win an election eventually. Accordingly, they gave Congress a substantial role in shaping the executive branch of government and the principal powers necessary to establish domestic policy and to cope with an emergency.

Unfortunately, the mechanisms that the Founders created to avoid foreign subversion and mob rule through a despotic executive have eroded. In recent years especially, the Supreme Court has aided and abetted this increase in presidential power through various doctrinal innovations weakening constraints on presidential power, often without giving substantial weight to the possibility that increasing presidential power might, someday, lead to permanent loss of democracy. This erosion has gone so far that we cannot be sure that the Department of Justice can indict and convict a sitting President, even if it obtains solid evidence that he acts as an agent of a foreign power. And Presidents much more committed to the rule of law than President Trump have felt free to exercise a dangerous customary unilateral war power completely at odds with the Constitution’s scheme for preserving democracy.

This focus on presidential power and the jurisprudence addressing it hardly exhausts the mechanisms that can erode or help restore democracy. Political factors and political parties, for example, play critical roles. Nor does the Court’s presidential power jurisprudence stand alone as a possible site of judicial influence on democracy’s future. The Supreme Court’s decisions interpreting the First Amendment as licensing unlimited spending to influence elections, limiting voting rights enforcement, and prohibiting the federal courts from policing even the most blatantly partisan political gerrymanders contribute to democratic erosion.³ But the chief executive’s assertion of power plays a key role in unraveling democracy, and therefore presidential power jurisprudence figures prominently among the subjects meriting attention in light of the wave of democratic erosion currently sweeping the globe. Autocrats, after all, establish autocracies.

Therefore, this book asks whether we have given too little weight to the Founders’ concern about losing democracy and how the Supreme Court’s jurisprudence on presidential power might change if we took that threat more seriously. From a purely American perspective, concerns about permanently losing democracy can appear far-fetched.⁴ We have enjoyed the blessings of democracy for more than two hundred years.⁵ Presidential power may wax and wane, but surely, we may tell ourselves, the American Republic will not perish from the Earth.

But relatively few countries have enjoyed democracies during the history of the world.⁶ And many democracies have died.⁷ Countries have elected leaders who proceeded, often over a prolonged period, to erode democratic constraints in order to establish an autocracy.⁸ Accordingly, prudence requires us to ask if the courts should give safeguarding democracy more weight than they have in the recent presidential power case law rather than take our democracy’s survival for granted.⁹ Globally, President Trump was not the first elected head of state to show authoritarian tendencies. And he may not be the last elected President in the United States who seeks to substitute personal rule for constitutional democracy.

This book argues that the courts should give the concern about democratic loss substantial weight, primarily because a loss of democracy can prove permanent or at least very long lasting. And loss of democracy often leads to a loss of liberty, rampant corruption, and a decline in workers’ ability to make ends meet.¹⁰ By contrast, Congress can overturn judicial decisions that stymie needed presidential action in order to minimize the danger of autocracy. Even when Congress fails to timely reverse an important judicial ruling stopping a useful policy initiative, we usually can cope with the consequences of mistakes, even in the area of emergency powers. These arguments build upon Peter Shane’s observation that judicial acquiescence to presidential power grabs creates a one-way ratchet augmenting presidential power and eroding checks and balances over time and my own book arguing that government must, at a minimum, protect us from systemic risks, like the risk of losing a democracy.¹¹ Avoiding even a seemingly small probability of a catastrophe matters a lot more than the problem of occasional error in overruling Presidents.

American debates about separation of powers jurisprudence (and constitutional law more generally) often pit original intent at the founding against the idea of a living constitution responsive to contemporary circumstances. This book marries these two strands of thought in support of the argument for giving the possibility of autocracy more weight.

It provides an account of the founding era focusing on the dominating concern with avoiding tyranny. The Framers sought to create a balance of power preventing tyranny both from the President and from the legislature. In order to avoid the eventual rise of tyranny, the Framers checked presidential control over the executive branch of government, giving Congress a substantial role in appointments and in removal through at least the impeachment mechanism. I argue that in the many grey areas that remain, courts should give weight to the Framers’ clear intent to guard against eventual tyranny.

Realizing the Framers’ intent of avoiding tyranny today requires an understanding of how societies lose extant democracies. While many Americans may imagine a sudden military coup as the cause of losing democracy, political scientists and comparative law scholars describe many recent losses of democracy as products of a gradual process of erosion of democratic norms, which they sometimes call slippage, eventually producing an irrecoverable loss of democracy.¹² The Specter of Dictatorship provides case histories of democracy loss or erosion in Hungary, Poland, and Turkey in order to provide a basis for understanding how countries can lose democracies, supplemented by some mention of other cases. President Trump openly admires the rulers of these countries and emulated some of their tactics while in office. Furthermore, they provide modern models likely to enjoy future influence. These case studies focus on the role of institutional moves in eroding separation of powers constraints that limit the potential for autocracy.

A key lesson emerges from this recent history. The main risk to democracy stems primarily from the head of state. This may seem like a trivial lesson, but often the Supreme Court treats vigorous judicial policing of presidential power as the primary threat to democratic institutions.

Although autocrats establish autocracies, they do not subvert democracy on their own. Turkish, Polish, and Hungarian heads of state relied on a powerful political party to secure sufficient support to destroy checks and balances. Because the United States Constitution gives Congress a substantial role in overseeing executive power, the United States President must have loyal backing from an antidemocratic party to subvert democracy. Because of the constraints placed on presidential power in the Constitution, even many autocracy-fearing antifederalists did not express great concern that the President alone would establish an autocracy in the ratification debates. Rather, many of them sought modification of the Constitution on the ground that a risk of a cabal between the President and the Senate could threaten democracy. This book suggests that the antifederalists got it right. The Senate’s power to approve presidential appointees with no loyalty to the law, thwart impeachment, and limit passage of legislation probably makes control of the Senate by loyal backers of an autocratic President an essential prerequisite to presidential success in establishing an autocracy. The fundamental threat stems from an autocratic chief executive who through charisma, bribery, blackmail, corruption, and/ or foreign intrigue obtains Senate acquiescence in the destruction of the rule of law.

A second lesson emerges from the history of democracy loss. The so-called unitary executive theory, which maintains that the Constitution gives the President sole control over the executive branch of government, provides a pathway to autocracy. Unitarians—proponents of the unitary executive theory—read this right to control the executive branch as including a right to remove executive branch officials from office, even officials who properly carry out their legal duties. They therefore consider independent agencies—government agencies designed to be independent of political control—constitutionally illegitimate, at least if they exercise executive power.¹³ Some of our independent agencies, like other independent agencies around the world, exercise authority vital to democracy, such as the authority to regulate elections and the mass media. Unitarians also frown upon the constitutional custom, dating back to the founding, of delegating meaningful authority to other officials in the executive branch, arguing that the President must have the right to control, not just influence, all exercises of executive authority. They also embrace presidential control over federal prosecution, a stance in tension with our history of prosecutorial independence.

While scholarly unitary executive proponents usually do not mention the civil service, the theory envisions a system of complete presidential hierarchical control, which seems at odds with the whole concept of the civil service. In the United States and most democracies, civil servants enjoy protection from removal from office, except in cases of failure to properly perform their duties. These protections are seen as important in preserving a stable rule of law somewhat shielded from corrupting political influence. The unitary executive theory suggests that the whole idea of an apolitical civil service might be unconstitutional, although even the theory’s most ardent judicial supporters have, so far, not embraced that conclusion.

All of the countries studied and every case of democracy loss I know of established direct or indirect head-of-state control over key state bureaucracies in order to create authoritarian government. As a theoretical matter, head-of-state control over the executive branch of government constitutes the heart of what an autocracy is. It establishes the basis for subverting the rule of law. Illustrious Supreme Court Justices, such as Louis Brandeis and Joseph Story, explicitly recognized this problem. Even the modern Supreme Court sometimes shows awareness of this, but rarely acts accordingly. This book also explains that our own history of presidential power shows that control over removal of executive branch officials in particular provides means of substituting a rule of charismatic personality for the rule of law and tools for rigging elections so as to keep the President and his party in power in spite of majority opposition. Several Presidents have abused the power of removal toward those ends.

The Turkish and Hungarian experiences (along with that of Nazi Germany) teach a third lesson—unchecked exercise of emergency power can greatly accelerate the establishment of autocracy. The Founders understood this as well, and therefore did not explicitly grant the President any emergency power. In spite of anxiety about having an insufficiently powerful executive to check foreign encroachment (the emergency they were most concerned about), the Founders gave the power to declare war to Congress. Because of our tradition’s unwillingness to risk autocracy by giving the President emergency powers, the courts have not taken a deferential attitude toward presidential claims of emergency powers until recently. This book shows that judicial acquiescence in the transfer of the war power from Congress to the President and retreat from its customary active checking of claims of emergency powers creates a dangerous situation.

The first chapter focuses on the original intent to guard against tyranny by creating a balance of powers. This chapter links the Constitutional structure to specific founding era concerns about monarchy—the eighteenth-century equivalent of contemporary autocracy. At the same time, it acknowledges that some of the Constitution’s framers were at least as concerned with legislative tyranny, and divided Congress into two houses and gave the President a veto to guard against it.

This chapter also establishes that the Founders created checks on presidential power in order to avoid creation of tyranny. The Framers’ decision to include these checks made it possible to secure ratification of the Constitution, in spite of public anxiety about despotism that might otherwise have led to the Constitution’s rejection. Even the so-called antifederalists—those who thought that the Constitution should not be adopted without amendment—tended to argue against the Constitution based on prescient fears of a cabal between the Senate and the President, not expressing anxiety about the President alone in light of the congressional restraints built into the Constitution.

It also shows that the Founders, in spite of anxiety about foreign encroachment and recognition of the utility of a strong President in resisting that, declined to give the President explicit authority to address emergencies or to create them by declaring war. This decision also stemmed from the Framers’ anxiety that presidential creation of emergencies or responses to them could lead to autocratic rule.

The second chapter focuses on the rise of presidential power since the founding. Chief causes of this growth include the growing complexity of the modern American economy and the emergence of the United States as a global power in the twentieth century, both of which led to Congress delegating vast powers to the President, usually with the courts’ acquiescence.

This chapter shows that during the eighteenth and nineteenth centuries, Congress tended to dominate policymaking. Presidents Jackson and Andrew Johnson, however, abused their removal power to wrest policymaking authority from Congress, thereby illustrating the dangers of the unitary executive theory. Congress resisted in a variety of ways, including by establishing Senate control over removal of key executive branch officials, which, according to Alexander Hamilton, formed part of the constitutional design. Abraham Lincoln, while recognizing congressional dominance in theory, asserted vast unilateral power to meet the emergency of the Civil War. In spite of some congressional acquiescence to Lincoln’s unilateral responses to the Southern rebellion, the courts took an active role in resisting the idea that the President could unilaterally control emergency powers.

The twentieth century witnessed the growth of judicial acceptance of a unilateral presidential removal power, at least for high officials exercising executive (as opposed to quasi-legislative or quasi-judicial) power, and growing acceptance of a large presidential role in policymaking. But the Supreme Court stopped short of embracing the unitary executive theory during those years. The end of the first half of the century saw a repeat of developments after the Civil War. The Supreme Court, informed by the experience of Hitler using emergency powers to destroy German democracy, rejected unilateral presidential power to define and respond to emergencies in Youngstown Sheet & Tube Co. v. Sawyer. Its most learned Justices, Frankfurter and Jackson, expressed a fear of democratic erosion in the face of acceptance of unilateral presidential emergency power. Although the office of the President became immensely powerful in the twentieth century, a robust legal framework largely constrained presidential power in the domestic sphere at least through the 1960s.

The next two chapters explain how the modern Court has tended to erode the legal framework constraining presidential power. Chapter 3 shows that concern about judicial overreaching led the Court to invent new doctrines and amplify old ones to justify limiting the federal courts’ jurisdiction over cases contesting presidential power grabs. These doctrines include standing (requiring that only parties injured by the challenged action can sue), the political question doctrine (maintaining that some challenges pose only political issues and thus merit dismissal), and ripeness (avoiding premature litigation). The courts have applied the justiciability doctrines selectively, using them aggressively to screen out challenges to presidential power while applying them with much less vigor when litigants allege congressional encroachment on presidential power. Scholars recognize that the courts apply these doctrines inconsistently, but have not shown that the inconsistencies tend to favor the President over Congress.¹⁴ This chapter also shows that the idea of the unitary executive catalyzes especially vigorous application of justiciability doctrine to shield claims of presidential abuse of authority from judicial review.

Chapter 4 shows that the Court developed a doctrine of presidential implied power, which supports presidential power grabs in part to facilitate adapting the Constitution to the Cold War and, later, the war on terrorism. Conversely, it weakened implied powers doctrine in addressing the limits of congressional power, thereby impairing congressional efforts to check increasing presidential power. Scholars recognize that the Court has tended to imply a robust presidential power over foreign affairs and national security. This chapter shows that in addition to this, the Court has used implied power concepts to diminish presidential accountability to the law and rejected congressional claims of implied power to check the President, in keeping with the spirit of the unitary executive theory. Finally, in 2020, the Supreme Court embraced the unitary executive theory, granting the President a constitutional right to fire individual agency heads for political reasons.¹⁵ At the same time, the Court did not overrule precedent preserving independent agencies headed by multimember commissions. Thus, the Court has tended to aid expansion of presidential power at home and abroad.

The fifth chapter explores the menace of dictatorship, drawing lessons about presidential power from countries that have lost democracies or at least seen significant democratic decline. These case studies of Poland, Hungary, and Turkey show that loss of democracy comes primarily from actions of the head of state, supported by a party eager to do his bidding and entrench him in power. The case studies show that creating centralized control over the executive branch of government by destroying power-sharing arrangements within the executive branch plays a key role in allowing an autocrat to gain power and keep himself and his party in power. Centralized control over law execution functions as a key procedural mechanism for manipulating prosecution to sideline political opponents, altering election law to empower the autocrat and his party, and exercising sufficient government control over the media to marginalize government critics.

Abuse of emergency powers can also accelerate the demise of democracy. In Turkey, the President used emergency powers to accelerate establishment of a democracy-ending unitary executive just as Adolph Hitler had done. Hungary used emergency powers to have the army construct a wall on its southern border to keep out immigrants, thereby aiding its campaign of stoking dread of immigrants as a source of political support for its autocrat. More recently, Hungary’s prime minister took advantage of the coronavirus pandemic to seize vast emergency powers, thereby probably finishing the job begun ten years earlier of destroying Hungarian democracy.

Chapter 6 shows that American democracy has begun to erode and appears at risk, partially because of executive practices centralizing control over administration in the President and the Supreme Court’s endorsement of the unitary executive theory. These practices have weakened the rule of law to a significant degree and create a risk of undermining fair elections and an independent media. In particular, President Trump and some of his predecessors sought to assert unilateral control over the executive branch to