LAW: Checking the American Presidency –


In the United States, the study of little-c constitutional law is generally taken to be synonymous with the study of big-C Constitutional law. We have our written document, upon which we have built a vast doctrinal edifice over the centuries that one can spend a lifetime studying. Be that as it may, the country’s little-c constitution can best be understood by those who are willing to zoom out from the case law and bring into view the more tectonic aspects of American political culture.

A new book, No Blank Checkfrom political scientists Andrew Reeves and Jon C. Rogowski lets readers ponder one of the most important such features: Americans’ suspicion of an unchecked president. Of course, the big-C Constitution itself contains mechanisms that ensure the president cannot operate autonomously, but a more elemental sort of restraint—a “latent force,” as the authors call it—continuously operates in the background of our political dramas. In short, Americans resent leaders who get too big for their britches. They consistently exhibit a “deep-seated skepticism about presidential power” and a reverence for the separation of powers.

That shouldn’t sound too surprising, and yet, both among world-weary political commentators and political scientists, the conventional wisdom is that regular people care about policy choices (or perhaps only outcomes) rather than the processes by which they are made. Pundits also sometimes assume the public wants to see the president-as-fearless leader deal with every imaginable problem. Reeves and Rogowski provide a treasure trove of data to show that neither process neutrality nor a preference for presidential heroism is the norm. Instead, throughout the whole history of opinion polling dating back to the 1930s, the American public has been consistently and decisively opposed to the president acting alone on just about every subject about which it has been asked. (The exceptions are an interesting bunch: the line-item veto consistently polled well from the 1970s through the 1990s, there was strong support for the president rationing gasoline in 1979, and there was modest net positive support for presidents making trade agreements in the late 1990s.)

Reeves and Rogowski build on this historical data by adding their own contemporary surveys from the end of the Obama administration to the beginning of the Trump administration. They poke and prod at citizens’ views about the rule of law, unilateral presidential actions of various sorts, policymaking under gridlock, and many other factors to tease out people’s aversion to unilateral policymaking. By using a wide variety of clever experimental designs (in which different respondents are asked slightly different questions), their approach minimizes response bias and precludes the possibility that they are merely getting respondents to agree to some desirable-sounding proposition.

Their methodical efforts pay off: they convincingly demonstrate that the public has stable “preferences over how presidents wield power” that are not mere emanations of partisan proclivities. Even when people like the policy that a president implements unilaterally, they are likely to penalize the president for having failed to cooperate with other political actors—although if the poll stipulates that Congress is gridlocked on an issue, or that the nation’s security is at stake, that somewhat diminishes this effect. Because some respondents are asked about policies without any indication of unilateral action, while other respondents are asked about the same policies but with various specifications of the processes that produced them, we can be confident that the tendency to judge unilateral action less favorably is real.

Perhaps counterintuitively, low-political-knowledge voters penalize presidents for unilateralism most evenhandedly. While not all of the members of this group are strongly committed to the rule of law, those who are show a consistent aversion to presidential unilateralism. By contrast, higher-information voters are more likely to show partisan opportunism in their assessment of process issues. Intriguingly, older survey respondents were also more likely to keep consistent views about unilateralism during the change from Obama to Trump.

How Strong is Public Constraint?

Reeves and Rogowski are impressively persuasive when it comes to debunking the idea that the mass public is process-indifferent. But they are somewhat less forceful on the practical significance of this bottom-up aversion to unilateral action. After all, even if the public is less sympathetic to a policy implemented unilaterally than to the same policy implemented through the full legislative process, it is far from clear what difference that will make.

Reviewing several recent unilateral actions, including Obama’s adoption of the Deferred Action on Childhood Arrivals (DACA) program and Donald Trump’s reallocation of funds for the southern border wall, the authors note that each president experienced some significant process-specific pushback for having relied on unilateral action. They then observe, “What stands out is not that they eventually exercised their powers, but how long it took them to do so.” It is certainly noteworthy that presidents hesitate before deploying unilateral powers, favoring cooperative action with legislators. But if a bit of reluctance is all that is entailed, it seems that this is something less than a fundamental limitation on the presidency’s power.

Reeves and Rogowski conclude, “Our research suggests that presidents should not merely justify the policy merits of their unilateral actions, they should also emphasize their commitment to defend the US Constitution.” Again, we must wonder if this advice has bite. If a president can get away with unilateral action by paying only a modest political price—and can get a discount by waving the Constitution around while doing it—that hardly seems definitive. For instance, when President Biden unilaterally extended the COVID-19 eviction moratorium in the summer of 2021 and pushed forward massive student loan forgiveness in the summer of 2022, his legal justification amounted to little more than a wink. But even if we suppose that many members of the public were less sympathetic to these actions because of their unilateral nature, it is hard to prove that Biden paid a significant political penalty in either case. His base was enthused by these actions, and it seems doubtful that many citizens cast their votes against Democrats in the 2022 midterms as a protest of these actions.

The genius of the framers was to create an institutional framework within which their young nation’s tyrannophobic impulses could help keep the country’s politics in balance.

What is clear is that those actions subsequently ran into trouble in the courts—as did a large share of the Trump administration’s unilateral actions in the preceding years. Judges, however, are limited in the remedies they offer to litigants. They may knock out misuses of power, but they cannot take on public policy problems themselves. The branch best able to do that is, of course, the legislature. Congress has sometimes proved quite willing to translate skepticism of an overbearing executive into hard checks on the president and executive branch more generally. Think of the 22nd Amendment to the Constitution, or the Administrative Procedure Act, both engineered by a Congress distressed by Franklin Roosevelt’s high-handed unilateralism.

The old-fashioned checks and balances entailed by our system of separated powers provide the operative constraints to presidential overreach, not the more diffuse anti-unilateral political culture that Reeves and Rogowski reveal. The authors sometimes seem keen to emphasize that the force they are exploring operates independently of formal institutional checks; it is the citizenry itself which refuses to “provide a blank check for presidents to exercise power as they see fit.” Politics alone may make it unwise for the president to be too cavalier with unilateral actions—but in those cases where presidents do overdraw their accounts, the public possesses no particularly effective way to discipline them, especially in the near term. But why make this an either/or choice in the first place? The political culture that fears overbearing presidents creates the appropriate incentives for other actors to counteract them.

Tyrannophobia?

The public’s skepticism of the president may best be understood as a modest constraint, growing more formidable as the issues involved grow more salient. That is nevertheless a good news story—or is it?

Skepticism is certainly possible. Eric Posner and Adrian Vermeule have made the case that “tyrannophobia” is an irrational and unfortunate aspect of the American political system, “a historical relic that interferes with beneficial institutional change.” In their judgment, the costs of boxing in the executive are real while the benefits are entirely imaginary.

To attempt to demonstrate this, in the late 2000s they undertook a brief study of the relationship between country-level support for “strong rulers” (as expressed in international opinion surveys) and countries’ realized democratic values (including the extent of “executive dominance”). They found no correlation and concluded that any “psycho-cultural hypothesis,” in which fear of tyrants creates a culture that prevents tyranny, was likely false.

Posner and Vermeule’s analysis coexisted rather strangely with their larger argument about the inconvenience of American tyrannophobia for this country’s governance because by the measures they employed the United States was rather less tyrannophobic than most wealthy countries. But, in any case, it seems that their non-finding was a function of a limited dataset. Reeves and Rogowski use a larger dataset that covers more countries over a longer period of time (as well as relying on a newer measure of commitment to rule of law from the 2020 Varieties of Democracy Project). They find that the more skepticism of “strong leaders” that a country’s citizens express, the more reliable the nation’s observance of the rule of law tends to be. They judiciously admit that the limitations of their study should make us cautious about making any strong causal inferences on this basis. Still, at the very least, they provide evidence that fear of tyrants is often a part of a well-functioning democratic culture—and it is no great leap to think it is a healthy part.

The genius of the framers was to create an institutional framework within which their young nation’s tyrannophobic impulses could help keep the country’s politics in balance, expressed in an institutional framework that could make good use of them without paralyzing the federal government. Their handiwork will stand us in good stead even today, with ambition counteracting ambition, if we direct our still-present fear of tyrants into the right institutional outlets.

Leave a Comment

This site uses Akismet to reduce spam. Learn how your comment data is processed.