Presidential Powers.

Vol. 15 No.6 (June 2005), pp.572-576

PRESIDENTIAL POWERS, by Harold J. Krent. New York and London: New York University Press, 2005. 288pp. Cloth $45.00. ISBN: 0-8147-4782-5.

Reviewed by David Dehnel, Department of Political Science, Augustana College (IL). Email: podehnel@augustana.edu .

PRESIDENTIAL POWERS by Harold Krent is a thorough survey of Article II of the United States Constitution. The book could be titled “Executive Power,” because it is about the formal powers vested in the President by Article II; informal powers are mentioned incidentally. PRESIDENTIAL POWERS is thorough, but it is concise and readable enough to serve as a supplement in constitutional law courses. While little new ground is broken in terms of research, the book makes a useful contribution to the discussion of several issues.

The book is organized into five substantive chapters. The first, and longest, is on the president’s general power to execute laws passed by Congress. This includes sections on delegation of power by Congress, appointment and removal of executive officials, presidential control of administrative rule making, and supervision of agency litigation. The chapter on foreign affairs covers the treaty power and the war power. The third chapter covers emergency powers in a domestic context. The fourth examines executive privilege and presidential immunity from suit. The book concludes with a chapter on the pardon power.

Krent takes a legal approach to his subject, setting out to resolve contemporary issues of presidential power by considering “the text, the structure of the Constitution, any judicial precedents, and history” (p.3). The approach to legal analysis is flexible and frankly based on value judgments. As Krent notes, Article II vests executive power in the president but does not define it. Several important specific powers are granted, but conflicting authority is often allocated to Congress. Some significant matters, such as the removal of appointed officials, are left open. Interpretation of Article II is further complicated by two centuries of variable practice that, Krent acknowledges, is sometimes “quite difficult to reconcile with constitutional text and structure” (p.3). To bring some coherence to the analysis of these open ended sources of legal doctrine, Krent emphasizes three basic values that must be balanced when assessing presidential power: presidential initiative, presidential accountability to Congressional policymaking, and presidential accountability to the public. Article II must be interpreted so that the President is effective but accountable in serving the public and enforcing the law.

Krent typically begins his analysis of an issue by looking for an historical consensus on the minimum and maximum boundaries of presidential power. He then seeks to fill in the gaps with a reasoned analysis of the competing values of effectiveness and accountability. These values are broad, [*573] but they serve well as organizing concepts for a book that could otherwise get bogged down in the details of specific disputes. As Krent acknowledges, his value balancing scheme does not provide answers to concrete questions (p.6). The strength of the scheme is its applicability across issues and historical contexts, not its precision and clarity.

Krent’s discussion of the power to remove federal officials is a good example of his method. Article II is silent on the matter. Despite Alexander Hamilton’s contrary assertion in the FEDERALIST PAPERS, historical practice established that presidents could remove executive officials without the advice and consent of the Senate. This was vindicated by the Supreme Court in MYERS (1926). An unfettered removal power enhances presidential initiative and clarifies presidential accountability for administrative action, but it may empower the president to ignore, or at least distort, congressional policymaking. Therefore, Krent defends the right of Congress to place limits on the president’s power by specifying that removal be for cause only, as sustained by the Court in HUMPHREY’S EXECUTOR (1935) and MORRISON v. OLSON (1988). Krent prefers the balancing approach in MORRISON to the awkward functional distinction made in HUMPHREY’S EXECUTOR. While conditions can be placed on the removal power, Congress cannot go so far as to reserve the power of removal to itself (see BOWSHER v. SYNAR (1986)). The remaining open question is just how much discretion should be left in the hands of the president. This, Krent concludes, must be resolved by balancing the competing values of presidential initiative and accountability to Congress.

In his chapter on emergency power, Krent’s balancing model produces an analysis very similar to that advocated by former Supreme Court Justice Robert Jackson. Like Jackson, Krent acknowledges that presidential initiative must be primary in a time of emergency, and political checks are more likely to constrain assertions of emergency power than legal ones. Still, crisis conditions do not authorize the president to ignore Congress if it has asserted itself (YOUNGSTOWN SHEET AND TUBE (1952), Jackson, J., concurring). With respect to the role of the Courts, Krent endorses the position Jackson advocated in dissent in KOREMATSU (1944). Extra-legal action may be justified, and probably will be politically tolerated, during an emergency, but the president should not ask the courts to place a legal seal of approval on such action. If asked, the courts are justified in refusing to comply, though they usually do not. The Jackson-Krent position allows the needed presidential initiative (checked by accountability to the public) in the face of emergency, while preserving as much of Congress’s policy making role as possible.

As can be said of much of the book, Krent’s discussions of the removal power and emergency power are more notable for clarification and synthesis than for breaking new ground. The book’s unique contribution may lie in its careful analysis of some issues that are often overlooked. These include discussions of the appointment of inferior officers, supervision of agency litigation, conditional approval of [*574] treaties by Congress, and the attaching of conditions to pardons.

The synthetic value of the book is well illustrated in the chapter on the power of the president to execute laws passed by Congress. The analysis is carefully knit together, creating a clear sense of the interconnections between such issues as appointment, removal, control of agency rule making and supervision of agency litigation. My main criticism of this chapter is that it fails to distinguish between acts of Congress that delegate legislative power and those that authorize executive action. Krent overuses the term delegation, employing it to refer to any act of Congress upon which legal action can be based (see especially pp.69-77). While the difference between policy making and administrative discretion is hard to define at the margins, certainly there is a difference between rule making and rule enforcement. The Constitution vests executive power in the president, and this makes congressional meddling in administrative matters suspect. The delegation by Congress of legislative power to various actors inside and outside of government is also suspect, but for different reasons. Delegation of legislative power has been accepted in practice in the last century, and this has changed the dynamic of legislative-executive relations. Encroachments on presidential power, such as independent agencies and legislative vetoes, can be understood as defensive reactions to the flow of power to the executive branch. Krent’s broad use of the term, “delegation,” tends to obfuscate the import of these developments.

While Krent’s framework of three competing values is a success, I have one modest criticism. His emphasis on presidential initiative, congressional policymaking and accountability to the public leaves out bureaucratic professionalism, a possible fourth value. Although the tradition of an independent bureaucracy may be weaker in the United States than elsewhere, it is nonetheless a significant theme in our political development. The founders, perhaps unsuccessfully, sought an ideal of non-partisan administration. The triumph of democratic accountability in the early nineteenth century eventually provoked a campaign for civil service reform. During the Progressive Era, the desire to elevate professional expertise in the policy process produced the independent regulatory commission.

Bureaucratic independence and professionalism cannot be subsumed under either presidential initiative or accountability to congressional policy making. In different circumstances it may be supported or weakened by either one. Bureaucratic independence comes into Krent’s discussion mainly as a goal of congressional policy making, as in the creation of independent regulatory commissions and the assignment of independent litigation authority. But the motives of Congress vary, and congressional pressure is quite capable of undermining bureaucratic independence. At times, presidents defend agencies from parochial interests. Bureaucratic professionalism could be seen as an independent consideration with respect to issues such as the appointment of inferior officers, removal power, supervision of agency rulemaking, and assignment of litigation authority. [*575]

I will conclude this review with a general comment, from the point of view of a political scientist, on Krent’s approach to this topic as a legal scholar. Krent’s eclectic handling of legal materials is appealing, but it sometimes results in an awkward combination of analytical and normative voices. This language may be more comfortable to lawyers than political scientists. The book is full of normative judgments as to how the Constitution should be interpreted, and in part these judgments are based on how that document has been interpreted. Krent is aware of this circularity, noting that “historical exercise of particular authorities does not by itself preclude questions as to the constitutionality of prior practice.” He concludes, nonetheless, that “historical practice influences contemporary interpretation of Article II, for each president builds on the contemporary understanding of presidential powers when assuming office” (p.3). I do not object to the critically selective use of history as a normative standard, but I do question an analysis that seems to conflate contemporary presidential practice with the interpretive enterprise of the scholar. How contemporary presidents will respond to their political environment is a different question than the one addressed in Krent’s book. The same can be said for Supreme Court responses to issues of executive power. Krent’s conclusions about how particular issues should be resolved are not predictions as to how the Supreme Court would decide them, though they are sometimes made to sound that way.

As a political scientist, I would prefer that a clearer distinction be maintained between academic assessment of an open question of constitutional law and the actual resolution of the question in the courts or elsewhere in the political process. Krent’s analysis is, appropriately, replete with historical examples, and he brings the theories and rationalizations of the participants in the cases into his analysis. This has a tendency to belie the fact that constitutional practice is the product of political conflict and maneuver, rather than an academic seminar. This is not to say that Krent ignores political reality or is naïve in his assessment of personal motivation. The difficulty with his approach is that it obscures the difference between using history as a body of experience from which to draw wisdom and using it as a body of data from which to discern trends and patterns.

Krent’s use of history is normative, not explanatory. Although much of the book turns on legislative-executive relations, he says little about the changing patterns of institutional interaction over time. The book cites many historical examples but does so in a way that assumes a degree of continuity that has been challenged by political scientists (e.g., Lowi 1979; 1985). In saying this, I do not fault Krent for writing the book he has written, but ask if he might have been clearer about the kind of book it is.

Despite these reservations, I found the book informative and helpful for clarifying my thinking about executive power issues. It is well structured and well documented. I found very few errors. (The author does misuse the term “senatorial courtesy” (p.25), and he puts Ronald Reagan on the wrong side of the Nicaragua conflict (p.88).) The book should prove useful for both legal [*576] scholars and social scientists interested in executive power.

REFERENCES:

Lowi, Theodore. 1979. THE END OF LIBERALISM. New York: Norton.

Lowi, Theodore. 1985. THE PERSONAL PRESIDENT. Ithaca: Cornell University Press.

CASE REFERENCES:

BOWSHER v. SYNAR, 478 US 714 (1986).

HUMPREY’S EXECUTOR v. UNITED STATES, 295 U.S. 602 (1935).

KOREMATSU v. UNITED STATES, 323 U.S. 214 (1944).

MORRISON v. OLSON, 487 U.S. 654 (1988).

MYERS v. UNITED STATES, 272 U.S. 52 (1926).

YOUNGSTOWN SHEET AND TUBE v. SAWYER, 343 U.S. 579 (1952).

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