Constitutional Law Book Review 124 Harv. L. Rev. 1688

Constitutional Alarmism

Responding to predictions of the imminent downfall of our constitutional tradition



The Decline and Fall of the American Republic is a call to action. Professor Bruce Ackerman opens the book with the claim that “something is seriously wrong with the tradition of government that we have inherited” (p. 3). The problem, he says, is the modern American presidency, which he portrays as recently transformed into “an especially dangerous office” (p. 189 n.1) posing “a serious threat to our constitutional tradition” (p. 4). The sources and mechanisms of that purported danger are numerous; Decline and Fall sweeps across journalism, national opinion polls, the Electoral College, civilian-military relations, presidential control of the bureaucracy, and executive branch lawyering to contend that “the foundations of our own republic are eroding before our very eyes” (p. 188). But the book does more than sound an alarm. It also advances a series of reforms intended to salvage the constitutional order.

Each of Decline and Fall’s major arguments contains much to remark upon, but I will focus on Ackerman’s critique of the current structures for legal advice within the executive branch, and his proposal to fix things with a Supreme Executive Tribunal. His twin claims – that the executive branch is on the verge of lawlessness, and that only something like the Supreme Executive Tribunal can save it – deserve serious engagement, but neither succeeds.

Although Decline and Fall is billed as concerned with “institutions, not individuals” (p. 6), it is fueled by outrage at the torture memos and other lawyerly abuses during the Bush Administration. The outrage is understandable and, in my view, justified. The problem, however, lies in the broader implications Ackerman draws. His oversimplified account obscures the constraints built into the current institutional arrangement. Indeed, Decline and Fall is an exercise in unwarranted alarmism married to radical calls for “fundamental institutional reform” (p. 178). Its account of the current state of affairs is too often oversimplified or false, its attraction to institutional innovation too often blind to the workaday needs of government and insensitive to the costs of change. Ultimately, the book deals too little with the reality of executive constitutionalism to offer a credible appraisal of its performance or to propose serious ideas for its reform.

An overarching message of this Review, then, is that when assessing legal interpretation in the executive branch, institutional details matter. In part because the practice of executive constitutionalism is less familiar to many than the work of the courts, there is a danger that its key processes will be overlooked or misunderstood. Mistakes at that level can lead an entire argument astray, producing claims untethered to reality. In order to show how this happens in Decline and Fall, this Review seeks to build on some of my own earlier writing in proposing a more institutionally sensitive approach to law and legal interpretation in the executive branch.

To start, Part I addresses some basic framing questions and suggests that Ackerman’s description of executive constitutionalism, as well as the relationship between the executive and judicial branches, misses the mark. Part II focuses on the Justice Department’s Office of Legal Counsel (OLC), and especially on the posture it adopts when providing legal advice to the White House and other clients. A number of broader institutional factors help explain why OLC is not and is unlikely to become simply a rubber stamp for the White House. Part III moves to the other key player in Ackerman’s account of executive constitutionalism, the White House Counsel’s Office. Ackerman contends that this office is poised to displace OLC from its traditional legal advisory role, offering instead its own opinions defending as legal whatever the President wants to do. Indeed, he goes so far as to say that this sort of usurpation has already happened. But that is false. I show that Ackerman’s own evidence cuts directly against his claim on this score. Moreover, although there can never be any guarantees, I explain why the usurpation Ackerman warns about is unlikely to happen going forward. Part IV takes up Ackerman’s Supreme Executive Tribunal. I argue that the Tribunal is extremely unlikely to find presidential or congressional support, that it would raise serious legal and practical questions if ever implemented, and that, ultimately, it simply has no place in our constitutional system.