Executive Power

Trevor Morrison on Bruce Ackerman

By Benjamin Wittes
Saturday, April 16, 2011, 7:57 AM

Columbia Law Professor Trevor Morrison has this lengthy review essay in the Harvard Law Review of Bruce Ackerman's new book, The Decline and Fall of the American Republic. The essay, entitled "Constitutional Alarmism," is rather devastating in my opinion. It is focused largely on Ackerman's suggestion that, as Morrison summarizes, the Office of Legal Counsel should be recast as a "'Supreme Executive Tribunal' of nine presidentially nominated, Senate-confirmed “judges for the executive branch" and "that th[is] Tribunal [should] replace OLC as the principal source of centralized legal analysis within the executive branch. In fact, [Ackerman] would grant the Tribunal an even broader mandate. He would empower it to take up legal questions not only as they arise within the executive branch but also at the behest of members of Congress, and he would make its answers legally binding on everyone in the executive branch, including the President." Money quote:

the book is an exercise in unwarranted alarmism married to radical calls for “fundamental institutional reform." The very extravagance of Ackerman’s reform proposals--his idea for a Supreme Executive Tribunal would utterly reconfigure our constitutional system--is part of the problem. Drastic measures presuppose drastic times, and so there is a risk of overstating the weaknesses in the status quo so that a revolutionary solution seems imperative. The result is liable to be more sensationalistic than accurate in description, more provocative than feasible in prescription. So it is with Decline and Fall. Its account of the current state of affairs is too often oversimplified or false, its attraction to institutional innovation too often blind to the workaday needs of government and insensitive to the costs of change. Ultimately, the book deals too little with the reality of executive constitutionalism to offer a credible appraisal of its performance or to propose serious ideas for its reform.

Here is the abstract:

This is a review essay of Bruce Ackerman's new book, The Decline and Fall of the American Republic. The book argues that the modern presidency poses a new and dire threat to our constitutional traditions. One of its core claims is that legal interpretation in the executive branch--especially as practiced by offices like the White House Counsel's Office and the Justice Department's Office of Legal Counsel (OLC)--is hopelessly compromised and cannot possibly be relied upon to foster principled, good faith adherence to legal constraints. Executive branch lawyers, Ackerman contends, inevitably say yes to whatever the President wants to do, even if it means defending the legally indefensible.

This Review shows that Ackerman's account of law and legal interpretation in the executive branch--"executive constitutionalism," in Ackerman's terminology--is simply wrong. Although the recent experience of the "torture memos" shows that offices like OLC can sometimes go badly astray, as a general matter OLC has a long history of providing principled, independent legal analysis. There is a similarly long history of the White House and other executive components binding themselves to OLC's opinions. These trends continue. (In particular, Ackerman's claim that the White House Counsel's Office has recently been usurping OLC's role is inaccurate.) To be sure, neither OLC nor any other player in executive constitutionalism is perfect, and there is certainly room to improve. Among other things, better disclosure of executive branch legal interpretation could help encourage fidelity to the traditions of independence and professional integrity for which offices like OLC are known.

Ackerman, however, is insufficiently attentive to the institutional details of how executive constitutionalism actually works, which leads him to miss the important but subtle ways in which it entails real constraint. As a result, the book's broadside attack on executive branch legal interpretation is an exercise in unwarranted alarmism. And given its mistakes of description, the book's prescriptions for reform--including its call to replace OLC with a quasi-court he dubs the "Supreme Executive Tribunal"--are not only troubling on their own terms but entirely unwarranted.