When the current occupant of the White House claims that, in the Constitution, “I have an Article II, where I have the right to do whatever I want as president,” surely the time has come to reassess the basis and legitimacy of the modern presidency. This book joins other recent works by conservative-leaning scholars in that task. It explains and deplores presidents’ decades-long and now routine violations of the Constitution. The final chapter pointedly suggests numerous ways “to recage the executive lion” that merit attention from anyone concerned with this problem. Scholars specializing in the presidency will be familiar with most of the historical developments and academic terrain charted in this book. Accordingly, it stands as an excellent critical and synthetic overview of how the modern presidency slipped the moorings of the original Constitution, rather than as a strikingly novel interpretation or a presentation of new findings on the subject.
Its author, Saikrishna Bangalore Prakash, is a distinguished professor of law and a noted originalist who has long defended a vigorous presidency and the theory of the unitary executive. From this perspective, he describes the original presidency as “an elective, constrained monarchy” and a “limited, republican one” (p. 36). The president was originally intended to have some of the powers derived from monarchy and to be the single officer responsible for directing the executive branch—yet one still well housed within the constitutional rule of law. The founders did not give presidents the “right to make laws or suspend them. They would have no right to take the nation to war. And they would have no right to amend the Constitution or refashion the presidency, via practice or otherwise” (p. 15). Specific chapters of the book detail how presidents now regularly do all of these things.
Prakash argues that the central reason for the numerous and ongoing unconstitutional actions of the modern presidency is the process of informal constitutional change—and amendment—associated with the logic of the “living constitution.” Presidents and their phalanxes of lawyer-sophist defenders and enablers effectively alter the Constitution by repeatedly violating it, with seemingly no lasting legal or political costs to themselves. Violations are cited as precedents for further violations in a process of “practice-makes-perfect,” until now there are no longer any serious constitutional restraints on the office (p. 9).
Moreover, the modern normalization of informal constitutional change (amendment), elaborated over decades, has produced an anti-constitutional politics that regularly ignores structural principles and textual limits, or else manipulates them into insignificance. Arguments for constitutional restraint cannot be taken seriously when invoked by one’s partisan opponents who have been equally guilty of traducing them when in office. Involved in Prakash’s overall argument is a tu quoque rejoinder to both liberal living constitutionalists and conservative originalists. He insists that it is contradictory to accept the concept of a living constitution while simultaneously condemning the modern presidency, as most liberals now do; yet it is also contradictory to accept originalism while simultaneously defending the modern presidency, as most conservatives now do. Unfortunately, informal constitutional amendment is now a game that all three branches play at. This reality underscores one of the deepest lessons Prakash offers: a regime based on a written fundamental law requires some degree of originalist formalism if it is to avoid descending into artfully obscured lawlessness.
Prakash is aware of much of the leading scholarship on the presidency and withal that liberals and conservatives of the past century have alternated in their assessments of the office and its inhabitants. Nevertheless, the book takes up the rhetorical-plebiscitary presidency without engaging the work of Jeffrey Tulis, and the problems of ambition, emergency, and necessity without engaging that of Harvey C. Mansfield, Jr. The book’s limitation is thus established in its distance from deeper philosophical consideration of the relationship among democratic opinion, legal formality, and the nature of executive power. A case in point is the brief treatment of Abraham Lincoln as yet another example of executive overreach. Lincoln’s actions to save the republic in the worst of all emergencies, taken initially while Congress was adjourned, were arguably not technically legal, but yet constitutionally defensible: they were absolutely necessary insofar as the very existence of the republic and its Constitution was at stake. And, of course, Lincoln asked for Congress’s post hoc approval after he called it into emergency session. This example is of a wholly different order from modern presidents’ regularized (and thus all the more alarming) violations of the Constitution and the rule of law that Prakash so expertly dissects. Emergencies beyond the contemplation of any legal text will always recur, and a regime that hopes to survive will have to come up with some way to meet them. Ultimately there can be only a political judgment about whether a situation a president describes as an emergency truly does necessitate action beyond the letter of the law—just as Lincoln accepted when Congress returned in the summer of 1861.
Prakash laudably directs us in the book’s final chapters to the necessity of congressional action and citizen engagement if the presidency is to be reined in. Congress has the constitutional authority to restrain the president in multiple ways. Among the more radical of Prakash’s suggestions is that Congress mandate an immediate 75% reduction in the military budget if the president attacks a foreign nation without congressional approval. Among the more intriguing and realistic recommendations is that the House and the Senate each create its own Office of Legal Counsel to advise about the scope of its constitutional authority and the constitutionality of executive branch actions. These offices would mirror and combat the Office of Legal Counsel in the Department of Justice, which Prakash identifies as a major source of arguments that have justified executive aggrandizement.
But how can Congress be impelled to act on these or the several other good ideas Prakash offers? We know that in the Progressive Era voters began choosing candidates in the system of direct primaries, and parties began to lose their ability to integrate diverse groups and interests around a coherent political program that members and officeholders could be held to. Now presidential candidates appeal directly to the people, and the party largely falls in behind. Consequently, members of Congress in the president’s party usually have little to gain and much to lose—including their seats if they are “primaried” by a candidate the president supports—should they attempt to resist or discipline that president. Prakash is surely correct that we “require a more insistent, ornery, and jealous Congress” (p. 14), one whose members sometimes “adopt the institutional perspective even as they regularly cling to the party perspective” (p. 275). This book does not address the profound difficulty of getting Congress to think constitutionally in light of the incentives it faces in our severely decayed party system. And to be fair, this was not a task Prakash set for himself, and no book can take up every aspect of the issues it raises.
The Living Presidency argues that the time has indeed come to restrain the office because its occupants now act so frequently and dangerously beyond the confines of the Constitution. Never has this been truer than with its 45th occupant, who apparently believes, by his own admission, that the Constitution does not constrain him. A scholar of Prakash’s well-deserved stature is to be taken seriously when he warns us that nothing less than constitutional self-government is at stake, and that the logic of a living constitution is unavailing.
