Constitutional Dictatorship: Its Dangers and Its Design

Here are some highlights from a 2010 paper in the Minnesota Law Review by two Yale University law professors, Sanford Levinson and Jack M. Balkin:

“I’m the commander-see, I don’t need to explain-I do not need to explain why I say things. That’s the interesting thing about being the president. Maybe somebody needs to explain to me why they say something, but I don’t feel like I owe anybody an explanation.” – George W. Bush

If Americans know one thing about their system of government, it is that they live in a democracy and that other, less fortunate people, live in dictatorships. Dictatorships are what democracies are not, the very opposite of representative government under a constitution.

The opposition between democracy and dictatorship, however, is greatly overstated. The term “dictatorship,” after all, began as a special constitutional office of the Roman Republic, granting a single person extraordinary emergency powers for a limited period of time. “Every man the least conversant in Roman story,” remarked Alexander Hamilton in The Federalist No. 70, “knows how often that republic was obliged to take refuge in the absolute power of a single man, under the formidable title of Dictator” to confront emergencies caused by insurrection, sedition, and external enemies. No political constitution was well designed, Hamilton believed, unless it could confront emergencies and provide for energetic executive powers to handle them. (Footnote (FT): Hamilton’s point was that Rome did not lose its “republican” character because it used dictatorships in emergencies.)

Under this view, dictatorship-the power of government officials to act on important matters free of accountability or timely legal checks-is not the opposite of democracy-or what our Constitution calls a “Republican Form of Government.” It is an institutional feature within constitutional democracies that can and should be employed to perform valuable civic functions. From this perspective, “dictatorship” becomes-as it was in the early Roman Republic-a term of description rather than a term of opprobrium.8 It refers to institutions and powers of emergency government that constitution makers might establish to serve the public interest. Indeed, if the institutions are properly designed, “dictatorship” might even have positive connotations-think only of the praise heaped on the legendary Cincinnatus.

* For the Framers, democracy was not the antithesis of dictatorship, either as a logical or an empirical matter. Democracy was a force that always had to be checked, and its passions cooled, in order to realize the benefits of republican government. Every republic known to the Framers—many of whom were steeped in ancient history—had eventually broken down and led to government by a strongman such as Julius Caesar. The lesson of the past seemed to be that the natural progression of popular governments was toward demagoguery and eventually tyranny; the most obvious example to the founding generation was the ill-fated English Revolution in 1640 and the rise of Oliver Cromwell as Lord Protector.

* in the liberal democracy of Great Britain, Winston Churchill would replace Neville Chamberlain as Prime Minister in May of 1940, and Britain’s political parties would agree to suspend the (unwritten) constitutional norms of parliamentary elections until the end of the war. Although still officially a democracy, there was no election in Great Britain between 1935 and 1945.

* A sovereign dictator uses a political crisis to overthrow the existing constitutional order and found a new one. A commissarial dictator, by contrast, is constituted by and given power by the existing political order; the dictator exercises power temporarily in a crisis in order to save the regime and return to the status quo as soon as practicably possible.

* Clinton Rossiter’s brilliant and troubling book, Constitutional Dictatorship: Crisis Government in the Modern Democracies, studied the responses of France, Great Britain, Germany, the United States, and ancient Rome to emergencies, real and perceived, including those generated by the Great Depression and World War II. Some of these emergencies involved problems of national security, and some were economic crises, including, of course, economic dislocations generated by war and its aftermath. Rossiter concluded that one constant in all the examples of emergency government he studied was the decision to adopt some form of dictatorship, validly legal or otherwise.

* Although we often oppose emergency to normal times, emergency and the problems of emergency government are always with us.

* if we assumed (which, thankfully, is not the case) that the American President has the power to initiate war, commandeer funds and resources for war, and conduct war at any time for any reason in any manner he pleases, he would be a constitutional dictator with respect to war and all matters related to war. That is because he would combine the
right to assess the need for military action with the power to carry it out and with the sole right to judge whether what he did was lawful. (He would not be a dictator with respect to a wide range of other matters, including, for example, environmental protection.) To the extent that the President may create rules in a certain area, apply them, and execute them on his own without the ability of anyone else in the system to check him, he is a law unto himself.

* Carl Schmitt offers perhaps the most chilling analysis of all. Although he recognizes the possibility of commissarial dictatorships, where the ultimate goal of dictatorship is restoring the status quo, he assumes that elements of the sovereign dictatorship always lurk in the background, waiting to emerge and to transform any existing political order. No matter how well designed a constitutional system might be, the true sovereign will always be able to escape the confines of that design and make exceptions to it.

* Emergency, or at least claims of emergency, are the standard cause and the standard justification for creating dictatorships.

* Machiavelli argued that republics should plan for emergency allocations of power in advance. Does the American constitution meet Machiavelli’s test? Does it adequately build the possibilities of emergency into its design, to avoid the dangers of inertia, impotence, and deadlock yet still preserve republican government? Recall Chief Justice John Marshall’s famous statement in M’Culloch v. Maryland that “[the] constitution [is] intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.” 95 Notably, the word “crises” is italicized in the original opinion. Nevertheless, the text of the American Constitution is remarkably devoid of specific clauses that give government officials emergency powers. The most relevant example is the Suspension Clause, which allocates to Congress (contra the views of Abraham Lincoln) the power to suspend the writ of habeas corpus, but only “in Cases of Rebellion or Invasion [when] the public Safety may require it.” Moreover, the Suspension Clause says nothing about other kinds of dangers, for example economic meltdowns, fires, floods and hurricanes, or even the invasion of a drug resistant virus. Nevertheless, constitutional emergencies may arise from many different sources.

* The first decade of the twenty-first century has made us all too aware of the various dangers that can plague our social orders; even the cost of terrorist attacks may pale in comparison to the damage wrought by tsunamis, hurricanes, earthquakes, or dangerous viruses. Thus in 2009, the President of Mexico, Felipe Calderon, placed the entire country under a “state of emergency” because of the potential swine flu pandemic. As John Ackerman, chief editor of the Mexican Law Review has explained, this serves to: “concentrate political power in his hands…. [President Calderon] has authorized his health secretary to inspect and seize any person or possessions, set up check points, enter any building or house, ignore procurement rules, break up public gatherings, and close down entertainment venues. The decree states that this situation will continue ‘for as long as the emergency lasts.’. . . This action violates the Mexican Constitution, which normally requires the government to obtain a formal judicial order before violating citizens’ civil liberties. Even when combating a ‘grave threat’ to society, the president is constitutionally required to get congressional approval for any suspension of basic rights. There are no exceptions to this requirement.”

Ackerman notes that Latin America has a “long history of using states of emergency as ploys to … return to authoritarianism.”

* The most important place we might find elements of constitutional dictatorship in the United States is in the construction of the modern presidency and the executive branch more generally. The Constitution says that the President is vested with “the executive Power” of the United States105 and is “Commander in Chief” of the armed forces. It also says, notably, that “he shall take Care that the Laws be faithfully executed.” The modern President is far more powerful, and has far more resources at his disposal, than the Framers could possibly have imagined. To give only one example, the President is now commander-in-chief of a standing army of over a million people, with forces stationed all over the world, armed with weapons that no one in the eighteenth century could have envisioned. As the United States has become a global power, and as government has taken on increasing responsibilities—to meet the increasing expectations of its citizens—the presidency has gained ever greater power and discretion. Both the administrative and
regulatory state on the one hand, and the National Security State, on the other, offer plenty of opportunities for decisive action, whether it be bailing out financial institutions, announcing bank holidays, imposing quarantines, seizing contraband merchandise, intercepting communications, engaging in covert operations, bombing overseas targets, or moving American troops into harm’s way.

* Effective accountability may be lacking even if the President’s actions are public. Accountability is particularly problematic, however, if a President can keep his most controversial actions secret using the excuse of national security, if he enjoys multiple constitutional privileges against suit, if courts regularly defer to his
judgments about national security, and if Congress lacks effective oversight mechanisms to check his adventures.

* A President can be a constitutional dictator, then, to the extent that he is effectively insulated from hindrance and accountability with respect to a certain set of issues. The most obvious examples concern war, foreign policy, intelligence, and covert operations, but, as we shall see later on, the modern administrative state offers a number of opportunities in the domestic sphere to deal with economic meltdowns, health crises, floods, fires, and other domestic disasters.

* By the time Lincoln took the oath of office on March 4, 1861, several states had already seceded, joined by several more after the firing on Fort Sumter on April 12. Nevertheless, Lincoln delayed calling Congress into session until July 4. “The eleven weeks between the fall of Sumter and July 4, 1861,” Rossiter wrote, “constitute the most interesting single episode in the history of constitutional dictatorship. The simple fact that one man was the government of the United States . . . makes this the paragon of all democratic, constitutional dictatorships.”

Lincoln was quite busy during this period. He goaded the South into beginning the war by resupplying Fort Sumter; he unilaterally decided to initiate a legally debatable blockade of all Southern ports; and then, most (in)famously, he suspended habeas corpus,119 claiming that since Congress was away, somebody had to make the decision, and he was just the person to do it. Like any commissarial dictator, Lincoln argued that he acted only to save the republic, not to found a new regime, and that his actions, even if they appeared illegal, were all calculated to that end… Lord Bryce wrote that Lincoln was “almost a dictator . . . who wielded more authority than any single Englishman has done since Oliver Cromwell,” and Arthur Schlesinger, Jr. recounts Lincoln’s Secretary of State William H. Seward “exuberant[ly]” telling a correspondent for the London Times that “[w]e elect a king every four years and give him absolute power within certain limits, which after all he can interpret for himself.”

* the Framers recognized the danger that the emergence of tyrants posed to republics and adapted the impeachment process in part as an alternative to the traditional remedy of assassination.

* Presidents Truman, Eisenhower, and Kennedy. Each of them received advice from high-ranking military officers and other advisors that the United States should use its nuclear
monopoly (in the case of Truman131) or its advantage in arms (in the case of Eisenhower and Kennedy) to launch a preemptive attack on the Soviet Union and bring an end to what would then be a not-so-Cold War. (FT: Eisenhower’s advisors, who believed that the Soviets would soon develop a hydrogen bomb, advocated a preemptive strike against the Soviet Union while the United States still enjoyed a preponderance of atomic power, even if a few million Americans might be killed in the process.)

* Whether or not the 9/11 terrorist attacks “changed everything,” they certainly provided everything that a would-be constitutional dictator might wish for. Congress readily ceded broad new powers to the President, in the September 18, 2001 Authorization for Use of Military Force (AUMF),135 the USA PATRIOT Act of 2001,136 the Military Commissions Act of 2006,137 the Protect America Act of 2007,138 and the FISA Amendments Act of 2008.139 Indeed, every time the President asked for broad new authorities from Congress, he received them.140 What is remarkable is that given this record of acquiescence, the Bush Administration tried to grab still more discretionary power, through secret programs that violated existing law, and through theories of the President’s Article II powers that, it claimed, allowed the President to disregard any congressional regulations of his powers as commander-in-chief.

* Congress has been willing to delegate increasing amounts of power to the President in both domestic and foreign affairs over the years; and it is well worth asking whether the Constitution imposes any significant limits on this delegation.

* FDR’s successor, Harry Truman, began the use of atomic weapons in warfare;149 more important for the development of constitutional law, he unilaterally ordered the American military to resist the North Korean invasion of South Korea in June 1950.150 This was the first major war that the United States fought that did not receive the imprimatur of a congressional declaration. Historians and constitutional analysts increasingly view the Truman presidency as a crossing of the Rubicon toward the President’s unilateral power to order military force anytime and anywhere in the world. Truman also oversaw the creation of the modern National Security State, featuring permanent standing armies strewn around the globe and the creation of the Central Intelligence Agency, with its secret budgets, covert operations, and often tenuous relationship to human rights and the rule of law.

* The privilege to hide government operations from courts and from the general public as state secrets is an essential tool in the kit of any would-be dictator, and there is no reason to believe that the Obama Administration has repudiated it.156 It is perhaps even more valuable than the suspension of habeas corpus, which only allows the President to detain specific individuals.157 A broad state-secrets privilege ensures immunity from judicial scrutiny in a wide swathe of cases where the President may plausibly claim that national security requires complete judicial abstention. Usually he does not even have to support the claim with evidence, for that might undermine the security he seeks to
maintain.

* Kennedy’s acolyte Theodore Sorenson reports that at the time Kennedy estimated the odds of nuclear war at one in three. Interestingly enough, Abram Chayes, in his flattering portrayal of Kennedy’s conduct during the Crisis, did not suggest that there was anything amiss in Kennedy’s risking nuclear annihilation. Kennedy’s behavior seems even more potentially reckless if one accepts the argument made at the time—in secret, of course—by Defense Secretary Robert McNamara that the Cuban missiles in fact posed little or no
threat to actual American security. After all, the United States had an overwhelming nuclear stockpile and Soviet leaders surely believed that the United States would use it in response to any missiles fired from Cuba…

One of the reasons that Kennedy found himself in such a delicate situation was the fact that constitutionally required elections were about to take place for Congress, and Republican New York Senator Kenneth Keating, among others, was denouncing him for being soft on Soviet penetration of Cuba. Kennedy needed to retain healthy Democratic
majorities in both the House and Senate because he could not always depend on Southern Democrats to support his “New Frontier” agenda. Kennedy was also concerned about
his prospects for reelection in 1964.

* The central idea of constitutional dictatorship, after all, is that the President does not seize power.192 Rather, his power is bestowed on him, either by the Constitution directly, or, more likely, by framework statutes and authorizations passed by Congress. Presidents (or more correctly, the Presidents’ lawyers) tend to read these statutes and authorizations as broadly as possible, so that the President can have as free a hand as possible to save the nation. In fulfilling these authorizations, the President creates new institutions and mechanisms that, in turn, bestow new kinds of authority and new kinds of power. Thus, the great mistake of the Bush Administration was the assumption that presidents should go out of their way to claim power unilaterally. It is far more effective to ask for power and have it given. Then one can proliferate the powers of the office
through making broad constructions, through building institutions, and through issuing regulations.

* Nikita Khrushchev paid for his commendable caution [regarding the Cuban Missile crisis] with his job, which suggests a degree of accountability that made the Soviet leader significantly less of a full-scale dictator than most Americans assumed.

* John Yoo, the author of the notorious “torture memos,” has argued that, despite American objections to King George III, the President still enjoys the powers possessed by the English monarch at the time of the American Revolution. Although Parliament retained the powers of the purse, Yoo explains, the King possessed unbounded discretion over the use of military force.

* The most obvious elements of presidential dictatorship tend to be concentrated in areas of foreign policy, intelligence gathering, covert operations, and warfare. Presidents exercise far less unilateral control in domestic politics.

* President Bush began to lose political momentum precisely because he failed to act swiftly or deftly in the face of a domestic disaster, Hurricane Katrina. Since the Calling Forth Act of 1792, Congress has repeatedly created framework statutes that authorize presidents to respond to domestic emergencies.

[LF: Trump lost momentum in 2020 when he failed to act swiftly and deftly in reaction to Covid.]

* one thing dictators must do in emergencies is detain people who pose threats to public safety. The Public Health Service Act gives the Surgeon General, subject to the
approval of the Secretary of Health and Human Services, the authority “to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.” Accordingly, the Surgeon General may order “inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.” The grant of authority may even provide for “apprehension, detention, or conditional release of individuals” if necessary “for the purpose of preventing the introduction, transmission, or spread of such communicable diseases as may be specified from time to time in Executive Orders of the President upon the recommendation of the Secretary, in consultation with the Surgeon General.” Or consider the steps the executive may take to meet the threat of imminent economic collapse.

* Bush’s actions match the traditional pattern. First, the President declares a crisis or emergency, then he asks for new powers, and, finally, Congress grants the request. However, Bush also sought to obtain additional emergency powers without asking for congressional approval in three areas: his policy on detentions and interrogation practices, his creation of military commissions, and his secret domestic surveillance programs. This was his great mistake, and the source of some of the most ardent (and well-deserved) criticism. Bush received pushback from the public and from the courts because he deviated from the traditional script for American Presidents seeking emergency authority. Instead of asking Congress for emergency powers, he simply asserted that he already possessed all the constitutional and legal authority he needed.

* Dictatorial power is almost inevitably dispersed in the modern administrative state. Policy questions in the modern state increasingly require specialized expertise. Even the
most able of presidents likely lack the detailed knowledge necessary for quick and decisive action. Consider this New York Times article, entitled Fed Chief Shifts Path, Inventing Policy in Crisis:

“As chairman of the Federal Reserve, Ben S. Bernanke has long argued that a central bank should base its policies as much as possible on consistent principles rather than seat-of-the-pants judgment. But now, as the meltdown in credit markets threatens major institutions on Wall Street and a recession appears inevitable, Mr. Bernanke is inventing policy on the fly.

“Modern monetary policy-making puts a lot of weight on rules, but there is no rule book for an economic crisis,” said Douglas W. Elmendorf, a senior fellow at the Brookings Institution and a former Fed economist.

On Friday, the Federal Reserve seemed to toss out the rule book altogether when it assumed the role of white knight, temporarily bailing out Bear Stearns, one of Wall Street’s biggest firms, with a shortterm loan to help avoid a collapse that might send other dominoes falling.

At first glance, this seems like a remarkably Schmittian description of the role played by the Federal Reserve Board—and, more particularly, its Chair, Ben Bernanke. Schmitt’s “sovereign” is the person who can successfully define something as a “crisis” and then basically do whatever he or she thinks necessary to meet the crisis.263 But Ben Bernanke is not a sovereign dictator. He is a commissarial, or constitutional, dictator. He enjoys his power courtesy of congressional statute, the residue of a previous Administration’s demand for discretionary power in the face of a perceived emergency.

* The modern administrative state features a distributed dictatorship, spreading unreviewable power among a variety of different agencies, czars, and bureaucrats. In the economic crisis of 2008, President Bush was largely a figurehead, whether by choice or by circumstance. The Treasury Secretary and the Chairman of the Federal Reserve
made the key executive decisions.

The constitutional theory of the unitary executive, which was much touted during the Reagan Administration, is designed to preserve the President’s formal ability to control,
oversee, and hold accountable all members of the executive branch. It is no accident that this theory began to gain currency after the work of the executive branch became so variegated and specialized, and following the most dramatic ideological shift in the White House since Roosevelt’s replacement of Hoover in 1933. President Reagan’s lawyers were attracted to the theory of the unitary executive precisely because they felt, perhaps for good reason, that the administrative state was beyond their control, particularly with regard to civil service protected holdovers from previous administrations might not have shared the Reaganites’ ideological preferences. Moreover,
Stephen Skowronek has pointed out that the unitary executive theory arose during a period when the President and Congress were usually controlled by opposite parties: defenders
of a strong presidency viewed increased control over the bureaucracy as the best way to promote their policy goals without interference from opponents of the President. The theory of the unitary executive is a convenient fiction offered by lawyers to allow presidents to consolidate power within increasingly complex administrations that necessarily feature multiple centers of power and sources of authority. Asserting that the President actually has control over the entire Administration is a bit like the courtiers of King Canute who tried to flatter him by claiming that he could direct even the progress of the ocean’s tides.

In practice, of course, the President cannot effectively control many of the discretionary decisions made by lower level officials. And in other circumstances, independent federal agencies and civil service protections prevent the President from immediately firing people who exercise discretion. The theory—or rather, the theoretical fiction—of the unitary executive tries to deal with these realities in three ways. First, it denies that some of these realities exist. Second, it uses the theory to try to consolidate power and avoid oversight in certain circumstances. Third, when pressed, it claims that still other features—like independent agencies—are unconstitutional. Behind the rhetoric of the unitary executive, however, is the reality of increasingly disaggregated forms of power and expertise in the modern executive branch. In the modern administrative state, unilateral decisionmaking power is distributed as often as it is concentrated in a single individual.

* Barack Obama, like George W. Bush before him, began his presidency by taking advantage of the opportunities presented by emergency; he pushed for a sizeable economic stimulus package to deal with an economic crisis. Or, more correctly, he took advantage of the President’s ability to define the situation before him as an emergency and assert that bold, decisive action was necessary to avert the particular sort of crisis that he claimed the nation faced. This feature of the characteristic pattern—the President’s characterization of the situation— is quite important. As President Obama’s incoming Chief of Staff, Rahm Emanuel, famously put it: “[y]ou never want a serious crisis to go to waste. And what I mean by that is an opportunity to do things you think you could not do before.”

* the President, because of his preeminent political position, has a unique power in the American system of government to define the nature of political reality. This makes
it difficult, if not impossible, for Congress to refute his analysis of the situation as involving an emergency; and this, in turn, greatly reduces Congress’s ability to refuse his requests for additional authority.

The 9/11 attacks, for example, allowed George W. Bush to define the situation before the nation in existential terms as a war of national survival (rather than as part of a continuing problem of terrorist attacks) and to define himself as a war president, thus purporting to activate all of the powers that a president enjoys in time of war. His greatest achievement was convincing Americans to believe in the existence of a war on terror, a war with no defined battlefield and no defined enemy. Since both of these elements were lacking, the President could define the war as taking place literally everywhere, including within the United States.288 And since the enemy was a shadowy network of loosely connected terrorist organizations, the President could plausibly assert (or imply) that almost any country and any (foreign) organization was connected to Al
Qaeda or contained Al Qaeda operatives.289 Having framed the situation as an existential crisis, Bush insisted that he needed vast powers to detain, interrogate, and make war;290 he pointed to Iraq and insisted that it was a continuation of the war against Al Qaeda and that invasion was necessary to keep the country safe from nuclear weapons.291 Thus armed, the President’s choice of tactics (secret domestic surveillance, detention without habeas corpus, and torture) and his choice of targets (Iraq) reflected his structuring of the situation, and thus of his own powers. The President presented the situation to the country as an all-out war against the United States; the country
would respond to this existential threat with courage and with determination, led by a commander-in-chief over affairs both foreign and domestic.

* The more severe the crisis, the greater the need for bold, decisive action, and the greater the need for the country to rally around its leader, to whom the public looks to resolve the crisis.

* One’s view about the legitimacy of a particular use of the presidential politics of emergency depends on one’s belief about whether presidents have accurately described the nature and the scope of the situation before the country. If they have, of course, their solution, tailored to that description, makes correspondingly more sense, and so does following their leadership. If there really is an emergency along the lines described by the President, then of course, it is very different than if there is no emergency, or if it is not as severe as the President says it is, or if the nature of the problem is different than the President describes, for then the President’s solutions are the
wrong solutions, and they will lead the country in the wrong direction.

* Presidents seek to gain popular support for a political program (and their Administration generally) through describing reality as involving emergency and describing the program in terms of how it deals with the emergency so described. What the President seeks to do, he seeks to do because of the emergency; what he has done has been justified
because the emergency demands it.

* We emphasize that governing through emergency is not the same thing as constitutional dictatorship. The former is a political strategy of characterizing a situation to gain political support and realize political reforms; the latter is a set of powers enjoyed by particular persons in the government.

* One reason the Bush Administration failed in its ambitions to build a new, long-term Republican majority was that it lost the ability to maintain the public’s focus on the threats that it claimed faced the nation. It lost the public’s attention partly because of its success in preventing subsequent terrorist attacks, partly through its incompetence in dealing with other foreign policy (Iraq) and domestic problems (Hurricane Katrina), and partly because other issues, like the economy, came to rival the “war on terror” as the focus of public concern.

This last point is worth emphasizing: even if the President has a first-mover advantage to redefine the political situation temporarily to his advantage, he cannot do so indefinitely. Reality (and a resurgence of political opposition) will continually intrude on the Administration’s plans. Political opponents will deny the President’s claims about reality and assert that they understand the real emergencies the nation faces.

* If the members of the Bush Administration had been more flexible and less ideologically blinkered, they might well have achieved a new political majority that would last for decades.

* Almost a century ago, Max Weber offered a dark portrait of the likely evolution of parliamentary democracies over time. Viewing matters from the perspective of the early twentieth century, he foresaw an almost inevitable slide toward Caesarism: a plebiscitarian dictatorship in which rulers claim authority through acclamation by the people and then proceed to rule with little oversight from the democratic process. In Weber’s account, the legislature becomes increasingly impotent, irrelevant, or both. More and more government functions are concentrated in the executive. The executive, in turn, gains authority from charismatic appeals to the people for the right to rule. Gerhard Casper forcefully drew on Weber’s analysis in a 2006 analysis of the contemporary American presidency, which focused on—but was not limited to—the example of the Bush presidency.309 One could find a complementary analysis in the work of another great Weimar Era theorist of emergency and executive power, Carl Schmitt. Schmitt’s support for Hitler’s
rise to power in 1933 was due in part to his deep skepticism of parliamentary democracy and his belief that a strong and charismatic authority figure was needed to break through the political paralysis generated by the Weimar Constitution.

* The need for an inspiring figure, freed from the old politics, who would lead the country toward transformative change was a theme of both parties’ campaigns…

* the legislature is the least respected branch of the federal government.

* Aided by every possible technological innovation, the President, now more than ever, can appeal directly to the public. In the twentieth century the mass media were an important bulwark against presidential overreach, but they have become increasingly toothless, in part because of the rise of access journalism and in part because professional journalism itself is being undermined by the slow and steady destruction of its business models. Indeed, the President can now route around the traditional mass media and take his case to the public directly through the blogosphere or through YouTube.

* the modern presidency is inevitably a cult of personality, and especially so if the President is personally charismatic, like Barack Obama. Even if he is less so, his party
and his handlers assiduously work to create such a cult, as they did for George W. Bush. Some of us may be tempted to look back at the steady stream of toadying books and articles written about President Bush’s genius, moral clarity, and connection with ordinary Americans as examples of mass delusion.

* Presidents now not only set legislative agendas, they also are the chief spokespersons for the meaning of America, its values, its hopes, and its aspirations. They are not only commander-in-chief, they are also comforter-in-chief (able to “feel [our] pain”), preacher-in-chief, educator-in-chief, and role model-in-chief all rolled into one larger than life persona. The American President, unlike most parliamentary leaders, has always been both head of government and head of state; increasingly, however, the President embodies the virtues of the country, and he becomes a vessel into which are projected the hopes of the nation and the virtues of the country (as well as its vices).

* there is a long-term trend of disconnection between the plebiscitarian presidency, with its cult of personality and identification of value and action with a single
individual, and the actual practices of constitutional dictatorship, which distribute decisionmaking among many comparatively faceless and anonymous institutions and individuals. The result of these two opposed elements of the modern American presidency is the schizophrenic nature of American constitutional dictatorship. Distributed expertise and secrecy on the inside combine with a plebiscitarian cult of personality on the outside. As a result, the outward manifestation of American
power increasingly has little to do with the actual processes of government.

* laws are the enemy of discretion; increased legalization means increased bureaucracy that will hamper the President’s ability to make effective policy and take effective action.

* Determined lawyers set upon a course of finding ways around legal restraints are likely to do so, even if the arguments are very poor.

* parliamentary systems may have some modest advantages over presidential systems in heading off the dangers of constitutional dictatorship, if only because the Prime Minister has to maintain—and answer to—a parliamentary majority coalition. Presidents, by definition, are able to create their own political base separate from the legislature.