Constitutional scholars tend to think of our government in terms of checks and balances: The three co-equal branches of government—executive, judicial, and legislative—are organized such that they may constrain one another and prevent the consolidation of power. Of course, political spectators realize that this foundation has shifted over the last few decades, with the executive branch more reliant on its inherent plenary power via executive orders. Why have the other branches failed to curb presidential expansion?
Boston College Law Professor Bijal Shah, an expert on constitutional and administrative law, recently took part in a symposium to discuss the current state of the presidency and answer that very question. In an article entitled, “The Spoils of Presidentialism for Congress and the Court,” Professor Shah posits that the other two branches of government have been incentivized to look the other way, or prevented from taking any action at all.
While participating in an online Yale Journal on Regulation symposium reviewing Democracy’s Chief Executive, a new book by New York University Law Professor Peter Shane, Professor Shah makes the point that Congress’s recent overemphasis on elections, politics, and partisanship means that it capitulates to the President in order to curry favor with his supporters. In a world where a key endorsement from the President can make or break a Senate candidate, deference to the executive branch’s power has become the sine qua non.
The Supreme Court has come to endorse presidentialism and the unitary executive theory as well, according to Professor Shah. Appointment to the Court requires presidential nomination, and the candidates are implicitly expected to support the President’s agenda; doing so has allowed for a supermajority to take hold of the Court, empowering that branch in what essentially boils down to a quid pro quo.
Professor Shah’s second recent article in the Yale Journal on Regulation came from a symposium examining Jed Stiglitz’s The Reasoning State. “Acknowledging Values in Administration,” examines Stiglitz’s view that “the transfer of authority from Congress to agencies is justified because the bureaucracy has the ability to ‘credibly reason.'”
Professor Shah joined BC Law this year. She is a graduate of Yale Law School and the Harvard Kennedy School of Government and has taught and lectured at Sandra Day O’Connor College of Law and UC Berkeley School of Law. Her work has appeared in the Harvard Law Review, Stanford Law Review, Yale Journal on Regulation, and the Minnesota Law Review.
“As a scholar of constitutional, administrative, and immigration law whose work is grounded in the realities of bureaucracy, I am excited by the Law School’s interest in and support of my data-driven, critical, and reformist approach,” Professor Shah told BC Law Magazine.
Read more about Professor Shah in BC News.