The Specter of Dictatorship

This chapter explains that this book will analyze excessive presidential power's potential to undermine democracy by exploring democratic decline primarily in Hungary, Turkey, and Poland. It outlines the book's major lesson: the head of state plays a key role in establishing autocracy by establishing unimpeded control over the executive branch in keeping with the American unitary executive theory, often accelerated through use of emergency powers. It outlines the book's argument that the U.S. Supreme Court has augmented executive power in dangerous ways and describes its principal recommendations for taking the potential for autocracy into account in adjudicating separation-of-powers cases. It summarizes each chapter's contribution to this argument.

This chapter establishes that the Founders of this nation shared a goal of avoiding a future drive to autocracy and suggests that this intention should guide the Supreme Court's treatment of presidential power. It explains the controversy over whether the Founders embraced the unitary executive theory and shows that they did not expressly grant emergency powers to the President in the Constitution. It introduces the concept of original intent and explains that it increasingly influences judges and constitutional scholarship, making this chapter's treatment of the creation of the Constitution important to establishing room to take lessons from democracy loss abroad into account in adjudication of separation of powers disputes.

This chapter provides an account of the rise of presidential power from the Founding through the late twentieth century. It explores the historical roots of the fear that presidential control over the executive branch of government and the growth of presidential emergency powers would undermine democracy and the rule of law. It canvasses the controversies (judicial and political) over presidential removal of federal officials from office (which the unitary executive theory insists must be free from restriction), from Andrew Jackson's effort to circumvent legislation creating the National Bank to Richard Nixon's attempt to thwart investigation of crimes undertaken to tilt the electoral playing field. It explains how congressional delegation of authority has enhanced the President's power over time. It also shows that the Supreme Court imposed constraints on emergency powers throughout this period, recognizing this presidential power as dangerous to democracy.

This chapter explains that the courts have augmented presidential power by frequently refusing to adjudicate claims that the President has exceeded his constitutional authority. It explains the key justiciability doctrines that the courts have used to shield Presidents from allegations of misconduct—standing, ripeness, and the political question doctrine. It establishes that the courts have applied these doctrines quite strictly, and sometimes grossly distorted them, to shield allegations of presidential usurpation of power from judicial scrutiny. At the same time, it has been quite liberal in entertaining challenges to congressional efforts to check and balance the executive branch. It shows that the courts' refusal to entertain challenges to unilateral presidential wars has aided the transfer of the war power from Congress to the President.

This chapter explains that the modern Supreme Court has generously granted the President extensive implied powers at the expense of Congress, while declining to apply the implied-powers doctrine to sustain efforts by Congress to check the executive branch. It shows that the Court's implied-powers jurisprudence has not only expanded the President's foreign affairs power, but also eroded checks and balances domestically. It emphasizes the role of the unitary executive theory and the legislative veto in undermining checks on emergency powers and undermining of the rule of law. This chapter fills a gap in the literature by defining the concept of implied power. It shows that propresidential bias in the Court's treatment of constitutional custom, means/ends reasoning, and congressional intent helps explain the asymmetric results of the Court's implied-power jurisprudence.

This chapter, the heart of the book, examines the role of executive power in undermining democracy in Poland, Hungary, and Turkey. In all three cases, creation of centralized control over the executive branch of government paved the way for autocracy, leading to politicized use of prosecution to undermine political opponents, shrinking of the media available to dissenters, and tilting the electoral playing field. This analysis focuses primarily on centralization of control over prosecution, media authorities, and electoral commissions. In Hungary and Turkey, abuse of emergency powers accelerated the establishment of autocracy. These countries' autocrats eroded democracy with the support of a political party enjoying the support of at least a substantial minority of voters. Party members in Parliament helped destroy democracy by voting in lockstep fashion to support "reforms" undermining independent agencies and prosecutorial independence.

This chapter examines the extent to which America's democratic erosion mirrors that of Hungary, Turkey, and Poland. It explains that acceptance of the unitary executive theory has significantly undermined the rule of law, just as centralization of power has in the case studies. It analyzes the extent to which we have emulated the autocracies in tilting the electoral playing field and undermining independent media. It explains that partisan division has led to a breakdown of deliberative democracy very similar to that seen Chapter 5's case studies. It also analyzes our vulnerability to judicial capture and abuse of the war power. It argues that judges lack the capacity to predict the extent of democratic decline, given its complexity and the role of unpredictable shocks in stimulating autocracy, but that we have serious long-term vulnerabilities.

This chapter discusses the factors that should influence the courts' separation-of-powers cases. Generally, it counsels judges to give more weight to the possibility of democratic decline than to potential policy mistakes, and to allow for the possibility of presidential bad faith. It shows that national security means protecting the American People's control over the government, not just preventing of physical attacks. It suggests rejecting or limiting the reach of the unitary executive theory, bolstering presidential legal accountability, and relying less on justiciability doctrines to shield presidential actions from judicial review. It also analyzes the role of judicial decision making in protecting and restoring democracy, showing that judicial decisions can aid political forces seeking to preserve or revive an ailing democracy.

This chapter briefly recapitulates the book's lessons. It affirms that the judiciary can and should contribute to democracy protection by considering the possibility of presidential bad faith in making decisions, since the presidency, not the judiciary, constitutes the principal threat to democracy. It calls for the judiciary to reject or at least limit the unitary executive theory, to think of national security in terms of preserving popular sovereignty, and to relax justiciability barriers to adjudicating challenges to excessive presidential power. It argues that the tendency to think of autocracy as a product of a coup, instead of as the product of gradual democratic decline, can blind us to the possibility of autocracy in America, but that signs of serious democratic decline abound. It suggests that judges need to take the possibility of losing a democracy as seriously as the founders of this country did.