The Brief: Law School News and Events

The Perils of the Imperial Presidency
In his Roberts Lecture, Yale Law School Professor Bruce Ackerman warned that the rise
of power in the executive branch, if unchecked, could lead to extremism and military
control over civilian institutions. The lecture was based on his book, The Decline and Fall
of the American Republic.  
In his Roberts Lecture, Yale Law School Professor Bruce Ackerman warned that the rise of power in the executive branch, if unchecked, could lead to extremism and military control over civilian institutions. The lecture was based on his book, The Decline and Fall of the American Republic.

It's hard to imagine an America without a strong, powerful leader in the White House. This strong, powerful leader was not, however, what the Founding Fathers had in mind when they wrote the Constitution. And according to constitutional theorist Bruce Ackerman, the executive has gotten too powerful in the last 40 years.

"My aim is to convince you that we really do have a very serious problem in the 21st century," said Ackerman, the Sterling Professor of Law and Political Science at Yale Law School and author of The Decline and Fall of the American Republic, which details his concerns about the imperial presidency. Ackerman, this year's Roberts lecturer, said a number of developments have caused the modern presidency to become "a platform for charismatic extremism, bureaucratic lawlessness, (and) increasing military control over nominally civilian institutions."

Ackerman, who started his academic career at Penn, said the rise of the primary system has led to the nomination of more extreme candidates. "Notice that President Obama accepted the nomination not before the convention but before a football stadium ... of 70,000 theological people shouting 'Yes, we can do it.'"

Similarly, he said, "the rise of media manipulators," or propagandists in the White House, starting under President Jimmy Carter, has contributed to an increase in presidential power and, if unchecked, potential extremism.

Before 1939, the White House had no executive staff, said Ackerman.

Under President Roosevelt there were six people assigned to the White House.

Today, said Ackerman, there are 2,000 highly politicized and loyal staff members who work to consolidate power in the White House. In addition, said Ackerman, the Office of Legal Counsel and the White House Counsel, in particular, practice a form of what he called "executive constitutionalism," interpreting the Constitution and its statutes in ways that are binding on the executive branch.

Another worrisome trend, according to Ackerman, is the use of public opinion polls to validate a president's actions. He said the public and the media track polls with the frequency of the Dow Jones Average.

"If Obama's at 70 percent, he has much more democratic authority than if he is at 25 percent," he said.

"The question is, 'What has President Obama done, first, to respond to this scenario?' And I'm afraid the answer is he has confirmed the developments that I have outlined," he said.

However, Ackerman acknowledged that many of these developments – especially the primary system and the role of media manipulators – are institutionalized and changing them is beyond President Obama's power.