Controversies surrounding President Obama’s use of his office, no less than his immediate predecessors, heighten the interest of two recently published books, Harold Bruff’s “Untrodden Ground: How Presidents Interpret the Constitution” and Heidi Kitrosser’s “Reclaiming Accountability: Transparency, Executive Power, and the U.S. Constitution.” This paper, written for a symposium held at Case Western University’s Law School shortly before either manuscript was finally published, draws on both in the service of a perception that the presidency exemplifies a tension that animates all of administrative law, between the worlds of law and politics. The aspiration to a “government of laws and not of men” is impossible of realization at even the most basic of levels, individual bureaucrats, since “men” will always be a part of government, and discretion can never be entirely subdued. The issue, rather, is assuring that we have a government of laws as well as “men” – that politics occurs within a framework respectful of legal constraint, that we are able to preserve what Peter Shane has wisely described as a “rule of law culture.” Bruff’s work, understandably focusing largely on the President’s role in military and foreign affairs – that context in which Chief Justice Marshall asserted that the exercise of “discretion” could never be subjected to judicial examination – has some tendency to divert our attention from the place of law in controlling that other form of discretion (the EPA’s, say) that we tolerate only because judicial controls are there. Kitrosser’s, more attentive to the domestic regulatory scene, reinforces Shane’s further observation that “the written documents of law must be buttressed by a set of norms, conventional expectations, and routine behaviors that lead officials to behave as if they are accountable to the public interest and to legitimate sources of legal and political authority.” There must be, that is, as a psychology of office promoting the personal responsibility of those in whom Congress has created duties of administration – a psychology that might be reinforced both by the discipline of judicial oversight, and by the possibilities of political oversight not just from the White House but also from Congress and ultimately from the people, yet a psychology that ultimately will depend on personal understanding of the nature of one’s position. The servant acts in a different mindset than the independent contractor; the soldier, than an attorney.
Peter L. Strauss,
The President and the Constitution,
Case Western Reserve Law Review, Forthcoming; Columbia Public Law Research Paper No. 14-452
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1907