Syracuse University College of Law
In "The Specter of Dictatorship: Judicial Enabling of Presidential Power," David Driesen questions the unitary executive theory and other doctrines of unchecked executive power. He offers primarily a critique of purposivism, a mix of original public meaning and more recent history illuminating those purposes: the Founders’ anti-tyranny purpose and then the rise of European tyranny from Nazi Germany to contemporary Hungary, Turkey, and Poland.
This review first focuses on Driesen’s approach to Congress: He identifies the broad congressional delegation of powers to the president as a source of expansive executive power, but he does not entertain that doctrines of deference to agencies and executive power may be a problem, nor whether some doctrines (e.g., limiting Chevron or expanding non-delegation) may be potential solutions. Second, the problem of enablement is not just judicial: Presidents use the appointment process to stack the courts with lawyers who had significant experience exerting and/or expanding executive power: a pipeline from Article II lawyers to Article III judges. Third, on the question of anti-tyranny from the Founding to more modern European examples, some of Driesen’s evidence (especially Poland) may be counter-evidence in favor of stronger separation of powers as a check against ambitious party leaders. Driesen’s account of the Founding is more accurate than the unitary theorists’ account, but he assumes that the anti-unitary position is the pro-liberty position. The unitary advocates have their own good-faith theory of liberty, even if that theory is a reflection of 1980s Republican ideology, more than of the 1780s republican ideology.
Jed H. Shugerman,
The Bi-Partisan Enabling of Presidential Power: A Review of David Driesen's The Specter of Dictatorship: Judicial Enabling of Presidential Power (2021)
Syracuse Law Review
Available at: https://scholarship.law.bu.edu/faculty_scholarship/3582
Draft available on SSRN